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Form PRE 14A Scopus BioPharma Inc. For: Dec 02

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December 2, 2022 5:17 PM EST

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington D.C. 20549

 

SCHEDULE 14A

 

Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934

 

Filed by the Registrant x

 

Filed by a Party other than the Registrant ¨

 

Check the appropriate box:

 

x Preliminary Proxy Statement
   
¨ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
   
¨ Definitive Proxy Statement
   
¨ Definitive Additional Materials
   
¨ Soliciting Material Pursuant to Rule 14a-12.

 

SCOPUS BIOPHARMA INC.

(Name of Registrant as Specified in its Charter)

 

N/A

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

 

Payment of Filing Fee (Check the appropriate box):

 

x No fee required.
   
¨ Fee paid previously with preliminary materials.
   
¨ Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11.

 

 

 

 

 

 

PRELIMINARY MATERIALS
SUBJECT TO COMPLETION, DATED DECEMBER 2, 2022

 

SCOPUS BIOPHARMA INC.

420 Lexington Avenue, Suite 300

New York, New York 10170

(212) 479-2513

 

NOTICE OF CONSENT SOLICITATION

 

December            , 2022

 

To our Stockholders:

 

This Notice of Consent Solicitation (this “Notice”) and the accompanying Consent Solicitation Statement (the “Consent Solicitation Statement”) and form of Written Consent (the “Written Consent”) are furnished to you by Scopus BioPharma Inc., a Delaware corporation (the “Company” or “us” or “we” or “our”), in connection with the solicitation of Written Consents from the holders (the “Stockholders”) of our common stock (“Common Stock”) or securities eligible to vote with our Common Stock on an as-converted basis or otherwise as permitted by their terms (“Common Stock Equivalents”) to take action without a Stockholders’ meeting (the “Consent Solicitation”).

 

We are soliciting your consent to approve an amendment to the Company’s Amended and Restated Certificate of Incorporation to effect a reverse stock split of our Common Stock (the “Reverse Stock Split”) with the Board of Directors (the “Board”) having the discretion as to whether or not the Reverse Stock Split is to be effected, and with the exact ratio of any Reverse Stock Split to be set at a whole number within the range set forth in this Notice as determined by the Board in its discretion (the “Proposal”).

 

The primary intent of the Reverse Stock Split is to increase the market price of our Common Stock to enhance our ability to meet the continued listing requirements of and maintain our listing on The Nasdaq Capital Market. Delisting could adversely affect the liquidity of our Common Stock since alternatives, such as the OTCQB Venture Market and the pink sheets, are generally considered to be less efficient markets. An investor likely would find it less convenient to sell, or to obtain accurate quotations in seeking to buy, our Common Stock on an over-the-counter market. Many investors likely would not buy or sell our Common Stock due to difficulty in accessing over-the-counter markets, policies preventing them from trading in securities not listed on a national exchange or for other reasons.

 

We have established the close of business on December                , 2022, as the record date (the “Record Date”) for determining Stockholders entitled to submit written consents. Stockholders holding a majority of the voting power of our Common Stock, including Common Stock Equivalents, outstanding as of the close of business on the Record Date must vote in favor of the Proposal to be approved by Stockholders.

 

This solicitation is being made on the terms and subject to the conditions set forth in the accompanying Consent Solicitation Statement and Written Consent.

 

Failure to submit the Written Consent will have the same effect as a vote against the Proposal. We recommend that all Stockholders consent to the Proposal, by marking the box entitled “FOR” with respect to the Proposal and signing, dating, completing and submitting the enclosed Written Consent in accordance with the instructions therein. If you sign and send in the Written Consent but do not indicate how you want to vote as to the Proposal, your Written Consent will be treated as a consent “FOR” the Proposal

 

By Order of the Board of Directors of Scopus BioPharma Inc.

 

Joshua R. Lamstein

Chairman and Director

 

 

 

 

SCOPUS BIOPHARMA INC.

420 Lexington Avenue, Suite 300

New York, New York 10170

(212) 479-2513

 

CONSENT SOLICITATION STATEMENT

 

General

 

This Consent Solicitation Statement (the “Consent Solicitation Statement”) and form of Written Consent (the “Written Consent”) are being furnished to you by Scopus BioPharma Inc., a Delaware corporation (the “Company” or “us” or “we” or “our”) in connection with the solicitation of Written Consents from the holders (the “Stockholders”) of our common stock, par value $0.001 per share (the “Common Stock”) or securities eligible to vote with our Common Stock on an as-converted basis or otherwise as permitted by their terms (“Common Stock Equivalents”) to take action without a Stockholders’ meeting (the “Consent Solicitation”).

 

We are soliciting your Written Consent to approve an amendment to the Company’s Amended and Restated Certificate of Incorporation to effect a reverse stock split of the Common Stock, by a ratio of not less than 1-for- and not more than 1-for- (the “Reverse Stock Split”) with the Board of Directors (the “Board”) having the discretion as to whether or not the Reverse Stock Split is to be effected, and with the exact ratio of any Reverse Stock Split to be set at a whole number within the above range as determined by the Board in its discretion (the “Proposal”).

 

Our Board adopted the Proposal and recommends that Stockholders vote FOR the approval of the Proposal. The Board has decided to solicit Written Consents from Stockholders to approve the Proposal rather than calling a special meeting of Stockholders, in order to eliminate the costs and management time involved in holding a special meeting. Pursuant to Section 228 of the Delaware General Corporation Law (“DGCL”), unless otherwise provided in a Company’s certificate of incorporation, any action required to be taken or which may be taken at any annual or special meeting of Stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Written Consents are being solicited from all of our Stockholders pursuant to Section 228 of the DGCL and our Bylaws.

 

We have established the close of business on December              , 2022, as the record date (the “Record Date”) for determining Stockholders entitled to submit Written Consents. As of the Record Date, the Company had              shares of Common Stock, including Common Stock Equivalents, outstanding, held by approximately              registered Stockholders of record. Stockholders holding a majority of the voting power of Common Stock (including Common Stock Equivalents (“voting power”)) outstanding as of the close of business on the Record Date must vote in favor of the Proposal to be approved by the Stockholders. This Consent Solicitation Statement and the Written Consent, are being mailed to all Stockholders on or about December             , 2022.

 

Any beneficial owner of Common Stock or Common Stock Equivalents who is not a record holder must arrange with the person who is the record holder or such record holder’s assignee or nominee to: (i) execute and deliver a Written Consent on behalf of such beneficial owner; or (ii) deliver a proxy so that such beneficial owner can execute and deliver a Written Consent on its own behalf.

 

Stockholders must deliver their properly completed and executed Written Consents to the Company’s transfer agent, Continental Stock Transfer and Trust Company, in accordance with the instructions set forth in the Written Consent. The Company reserves the right (but is not obligated) to accept any Written Consent received by any other reasonable means or in any form that reasonably evidences the giving of consent to the approval of the Proposal.

 

Requests for copies of this Consent Solicitation Statement should be directed to the Company at the address or telephone number set forth above.

 

While the Company intends to terminate the Consent Solicitation once it has received Written Consents in favor of the Proposal representing a majority of the voting power of shares of Common Stock and promptly implement the Proposal, the Company expressly reserves the right, in its sole discretion and regardless of whether any of the conditions of the Consent Solicitation have been satisfied, subject to applicable law, to (i) terminate the Consent Solicitation for any reason, including if the consent of Stockholders holding a majority of the voting power of the Company’s Common Stock has been received, (ii) waive any of the conditions to the Consent Solicitation, (iii) amend the terms of the Consent Solicitation or (iv) abandon the Consent Solicitation.

 

 

 

 

The final results of the Consent Solicitation will be published in a Current Report on Form 8-K (the “Form 8-K”) by the Company. This Consent Solicitation Statement and the Form 8-K shall constitute notice of taking of a corporate action without a meeting by less than unanimous written consent as permitted by applicable law and our Bylaws.

 

All questions as to the form of all documents and the validity and eligibility (including time of receipt) and acceptance of Written Consents and revocations of Written Consents will be determined by the Company, in its sole discretion, which determination shall be final and binding.

 

Revocation of Consents

 

Written Consents may be revoked or withdrawn by any Stockholder at any time. A notice of revocation or withdrawal must specify the record Stockholder’s name and the number of shares of Common Stock or Common Stock Equivalents being withdrawn. Revocations may be submitted to the Corporate Secretary of the Company by the same methods as Written Consents may be submitted, as set forth in the form of Written Consent included.

 

Solicitation of Consents

 

Our Board is sending you this Consent Solicitation Statement in connection with the Consent Solicitation to approve the Proposal. The Company will pay for the costs of the Consent Solicitation. We will also pay the reasonable expenses of brokers, nominees and similar record holders in mailing materials for the Consent Solicitation to beneficial owners of our Common Stock and Common Stock Equivalents. Because the approval of holders of a majority of the voting power of our Common Stock is required to approve the Proposal, not returning the Written Consent will have the same effect as a vote against the Proposal.

 

Other than as discussed above, the Company has made no arrangements and has no understanding with any other person regarding the Consent Solicitation hereunder, and no person has been authorized by the Company to give any information or to make any representation in connection with the Consent Solicitation, other than those contained herein and, if given or made, such other information or representations must not be relied upon as having been authorized. In addition to solicitations by mail, Written Consents may be solicited by directors, officers and other employees of the Company who will receive no additional compensation therefor.

 

Members of our Board and management beneficially own 1,994,910 or 9.46% shares of our Common Stock and Common Stock Equivalents and intend to submit their Written Consents “For” the Proposals. See “Security Ownership of Certain Beneficial Owners and Management”.

 

No Appraisal Rights

 

Under the DGCL, our non-consenting Stockholders are not entitled to appraisal rights with respect to the Reverse Stock Split, and we will not independently provide our Stockholders with any such right.

 

Householding Matters

 

Stockholders that share a single address will receive only one Consent Solicitation Statement and Written Consent at that address, unless we have received instructions to the contrary from any Stockholder at that address. This practice, known as “householding,” is designed to reduce our printing and postage costs. However, if a Stockholder of record residing at such an address wishes to receive a separate copy of this Consent Solicitation Statement or of future consent solicitations (as applicable), he or she may write to us at: Scopus BioPharma Inc., 420 Lexington Avenue, Suite 300, New York, NY 10170, Attention: Secretary. We will deliver separate copies of this Consent Solicitation Statement and form of Written Consent promptly upon written request. If you are a Stockholder of record receiving multiple copies of our Consent Solicitation Statement and form of Written Consent, you can request householding by contacting us in the same manner. If you own your shares through a bank, broker or other Stockholder of record, you can request additional copies of this Consent Solicitation Statement and form of Written Consent or request householding by contacting the Stockholder of record.

 

As of the Record Date, the closing price of our Common Stock was $             per share and there were                     shares outstanding of our Common Stock, including Common Stock Equivalents.

 

 

 

 

INTEREST OF DIRECTORS AND EXECUTIVE OFFICERS IN THE PROPOSAL

 

No director, executive officer, associate of any director, executive officer or any other person has any substantial interest, direct or indirect, by security holdings or otherwise, in the Proposal that is not shared by all other Stockholders.

 

VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF

 

Voting Securities

 

The number of outstanding shares of our Common Stock and Common Stock Equivalents at the close of business on December                , 2022 was               . The Record Date for determining our Stockholders who are entitled to notice of and to vote on the approval of the Proposal, is December                 , 2022.

 

 

 

 

SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT

 

The following table sets forth, as of the Record Date, the beneficial ownership of our Common Stock by each of our directors and named executive officers, each person known to us to beneficially own more than 5% of our Common Stock, and by the officers and directors of the Company as a group. Except as otherwise indicated, all shares are owned directly. Unless otherwise indicated in the footnotes to the following table, each person named in the table has sole voting and investment power (subject to applicable community property laws). Shares of Common Stock subject to options, warrants, or convertible notes currently exercisable or convertible or exercisable or convertible within 60 days after the Record Date are deemed outstanding for computing the share ownership and percentage of the person holding such options, warrants, or convertible notes but are not deemed outstanding for computing the percentage of any other person.

 

Name and Address of Beneficial Owner(1)  No. of Shares
of Common Stock
Beneficially Owned		   Approximate
Percentage of
Outstanding Shares
of Common Stock**		 
5% Stockholders          
Morris C. Laster, M.D.(2)   6,006,000    28.47%
Armistice Capital, LLC(3)   2,100,000    9.99%
Moreglade Pty. Limited(4)   1,903,636    9.02%
HCFP/Capital Partners 18B-1 LLC   1,350,000    6.40%
Directors and Executive Officers          
Ira Scott Greenspan(5)   1,520,424    7.21%
Joshua R. Lamstein(6)   1,469,997    6.97%
Robert J. Gibson(7)   212,352    1.01 
David A. Buckel(8)   74,039    * 
David Weild IV(9)   68,098    * 
Raphael Hofstein, Ph.D.   —    * 
All directors and executive officers as a group (6 individuals)(5)(6)(7)(8)(9)   1,994,910    9.46%

 

* Indicates less than 1%.

 

** We are engaged in discussions relating to one or more transactions pursuant to which the Company would issue shares of Common Stock or Common Stock Equivalents, including, without limitation, one or more financing transactions, satisfaction of accounts payable and/or accrued expenses, and/or purchase of securities in one or more healthcare-related companies. Any such shares of Common Stock or Common Stock Equivalents issued on or before the Record Date as a result of any such transactions will be entitled to consent to approve the Reverse Stock Split. We will issue a Current Report on Form 8-K in the event that any such transactions are deemed material. We currently have no agreements or commitments relating to any such transactions.

 

 

 

 

(1) Unless otherwise set forth, the business address of referenced holders is c/o Scopus BioPharma Inc., 420 Lexington Avenue, Suite 300, New York, New York 10170.

 

(2) Based solely on information set forth in an amended Schedule 13D filed by Dr. Laster on May 12, 2021 (the “Amended 13D”), includes: (i) 4,926,000 shares of Common Stock over which Dr. Laster claims sole beneficial ownership and (ii) 360,000 shares of Common Stock over which each of Chen Laster, Gabriella Laster and Sara Laster, or 1,080,000 shares of Common Stock in the aggregate, claims beneficial ownership over which Dr. Laster claims shared beneficial ownership on account of Dr. Laster, Chen Laster, Gabriella Laster and Sara Laster constituting a group. The aggregate number of shares of Common Stock in this footnote includes 6,000,000 shares of common stock, the ownership of which is subject to dispute. The address for Dr. Laster provided in the Amended 13D is 11 Reuven Shari St., Jerusalem, Israel.

 

(3) Includes 2,100,000 shares of Common Stock issuable pursuant to outstanding warrants (Additional Investment Options), which are currently exercisable. Armistice Capital, LLC (“Armistice Capital”) is the investment manager of Armistice Capital Master Fund Ltd. (the “Master Fund”), the direct holder of the shares of Common Stock, and pursuant to an Investment Management Agreement, Armistice Capital exercises voting and investment power over the securities of the Company held by the Master Fund and thus may be deemed to beneficially own the securities of the Company held by the Master Fund. Steven Boyd, as the managing member of Armistice Capital, may be deemed to beneficially own the securities of the Company held by the Master Fund. The Master Fund specifically disclaims beneficial ownership of the securities of the Company directly held by it by virtue of its inability to vote or dispose of such securities as a result of its Investment Management Agreement with Armistice Capital. The address for Armistice Capital is 510 Madison Avenue, 7th Floor, New York, New York 10022.

 

(4) Includes 1,400,000 shares of Common Stock and 503,636 shares of Common Stock issuable pursuant to outstanding W Warrants, which are currently exercisable.

 

(5) Includes: (i) 1,350,000 shares of Common Stock held by HCFP/Capital Partners 18B-1 LLC (“18B-1”), of which Mr. Greenspan is a member and co-manager, (ii) 73,334 shares of Common Stock held by HCP/Advest LLC (“HCP/Advest”), of which Mr. Greenspan is a member and sole manager, and (iii) 9,850 shares of Common Stock held by certain other HCFP-related entities (“HCFP”). Accordingly, Mr. Greenspan is deemed to have shared voting and dispositive power over the shares of Common Stock held by 18B-1 and HCFP and sole voting and dispositive power over shares of Common Stock held by HCP/Advest. Mr. Greenspan disclaims beneficial ownership of the shares of Common Stock held by these entities, except to the extent of his proportionate pecuniary interest therein. Unless and until a final resolution of the dispute, the 6,000,000 shares of common stock, the ownership of which subject to dispute, are not included in Mr. Greenspan’s share ownership.

 

(6) Includes 1,350,000 shares of Common Stock held by 18B-1, of which Mr. Lamstein is a member and co-manager. Accordingly, he is deemed to have shared voting and dispositive power over the shares of Common Stock held by 18B-1. Mr. Lamstein disclaims beneficial ownership of the shares of Common Stock held by 18B-1, except to the extent of his proportionate pecuniary interest therein. Also includes an aggregate of 3,000 shares of Common Stock held by Mr. Lamstein’s minor children. Unless and until a final resolution of the dispute, the 6,000,000 shares of common stock, the ownership of which subject to dispute, are not included in Mr. Lamstein’s share ownership.

 

(7) Includes 210,052 shares of Common Stock held by Dayber Snow LLC, of which Mr. Gibson is a member and co-manager. Accordingly, he is deemed to have shared voting and dispositive power over the shares of Common Stock held by this entity. Mr. Gibson disclaims beneficial ownership of the shares of Common Stock held by this entity, except to the extent of his proportionate pecuniary interest therein. Also includes an aggregate of 2,000 shares of Common Stock held by Mr. Gibson’s minor children. Unless and until a final resolution of the dispute, the 6,000,000 shares of common stock, the ownership of which subject to dispute, are not included in Mr. Gibson’s share ownership.

 

(8) Includes 5,941 shares of Common Stock held by BVI Venture Services LLC, of which Mr. Buckel is the sole owner and is deemed to have sole voting and dispositive power over such shares of Common Stock, and 68,098 shares of Common Stock issuable pursuant to outstanding stock options to purchase our Common Stock, which are currently exercisable or exercisable within 60 days of the Record Date.

 

(9) Represents 68,098 shares of Common Stock issuable pursuant to outstanding stock options to purchase our Common Stock, which are currently exercisable or exercisable within 60 days of the Record Date.

 

 

 

 

PROPOSAL 1— AMENDMENT TO THE COMPANY’S
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT

 

Our Board has adopted resolutions (1) declaring advisable an amendment to the Company’s Amended and Restated Certificate of Incorporation to effect the Reverse Stock Split of our issued and outstanding Common Stock, as described below, and (2) directing that a proposal to approve the Reverse Stock Split be submitted to the holders of our Common Stock and Common Stock Equivalents for their approval.

 

The form of the proposed amendment to the Company’s Amended and Restated Certificate of Incorporation to effect a Reverse Stock Split of our issued and outstanding Common Stock will be substantially as set forth on Appendix A (subject to any changes required by applicable law). If approved by our Stockholders, the Reverse Stock Split would permit (but not require) our Board to effect a Reverse Stock Split of our issued and outstanding Common Stock by a ratio of not less than 1-for-          and not more than 1-for-           , with the exact ratio to be set at a whole number within this range as determined by our Board in its sole discretion. We believe that enabling our Board to set the ratio within the stated range will provide us with the flexibility to implement the Reverse Stock Split in a manner designed to maximize the anticipated benefits for our Stockholders. In determining a ratio, if any, following the receipt of Stockholder approval, our Board may consider, among other things, factors such as:

 

  · the continued listing requirements of the Nasdaq Capital Market;
     
  · the historical trading price and trading volume of our Common Stock;
     
  · the number of shares of our Common Stock outstanding;
     
  · the then-prevailing trading price and trading volume of our Common Stock and the anticipated impact of the Reverse Stock Split on the trading market for our Common Stock;
     
  · the anticipated impact of a particular ratio on our ability to reduce administrative and transactional costs; and
     
  · prevailing general market and economic conditions.

 

Our Board reserves the right to elect to abandon the Reverse Stock Split, including any or all proposed Reverse Stock Split ratios, if it determines, in its sole discretion, that the Reverse Stock Split is no longer in the best interests of the Company and its Stockholders.

 

Depending on the ratio for the Reverse Stock Split determined by our Board, Stockholders with less than          shares and no more than          shares of existing Common Stock, may be combined into one share of Common Stock. Any fractional shares will be rounded up to the next whole number. The amendment to our Amended and Restated Certificate of Incorporation to effect the Reverse Stock Split, if any, will include only the Reverse Stock Split ratio determined by our Board to be in the best interests of our Stockholders and all of the other proposed amendments at different ratios will be abandoned.

 

Background and Reasons for the Reverse Stock Split; Potential Consequences of the Reverse Stock Split

 

Nasdaq Compliance. Our Common Stock is publicly traded and listed on The Nasdaq Capital Market under the symbol “SCPS.” Our Board authorized the Reverse Stock Split with the primary intent of increasing the per share trading price of our Common Stock in order to ensure that we regain compliance with the “minimum bid price” requirement for the continued listing of our Common Stock on The Nasdaq Capital Market which we believe helps support and maintain stock liquidity and Company recognition for our Stockholders. Accordingly, we believe that effecting the Reverse Stock Split is in the Company’s and our Stockholders’ best interests.

 

Companies listed on The Nasdaq Capital Market are subject to various rules and requirements imposed by the Nasdaq Stock Market LLC (“Nasdaq”) which must be satisfied in order to continue having their stock listed on the exchange (these are called Nasdaq’s Continued Listing Standards). One of these standards is the “minimum bid price” requirement set forth in Marketplace Rule 5450(a)(1), which requires that the bid price of the stock of listed companies be at least $1.00 per share (the “Minimum Bid Price Requirement”). A listed company risks being delisted and removed from Nasdaq if the closing bid price of its stock remains below $1.00 per share for an extended period of time.

 

 

 

 

We have received deficiency notification letters from the Listing Qualifications Staff of Nasdaq indicating that we are not in compliance with the Minimum Bid Price Requirement and certain Nasdaq listing rules relating to maintaining a minimum market value of listed securities of $50,000,000 (the “MVLS Requirement”) and a minimum market value of publicly held shares of $15,000,000 (the “MVPHS Requirement”). On July 13, 2022, we received an additional letter from Nasdaq stating that because we had not regained compliance with the MVLS Requirement as of July 12, 2022, trading of our Common Stock on Nasdaq would be suspended on July 22, 2022 and removed from listing and registration, unless we requested an appeal to a Nasdaq hearings panel by July 20, 2022, which we requested prior to such deadline. Such hearing occurred on August 25, 2022. In anticipation of the expiration of the MVPHS Requirement and Minimum Bid Price Requirement cure periods on August 30, 2022 and October 3, 2022, respectively, we addressed all three requirements as part of our compliance plan (“Compliance Plan”) during the hearing. By letter dated September 13, 2022, Nasdaq informed us of the Panel’s decision directing that the Company’s listing be transferred to the Nasdaq Capital Market, effective at the open of business on September 15, 2022, and our Common Stock will continue to be listed on that market subject to, among other things, the Company satisfying the Compliance Plan in full by no later than January 9, 2023. Our listing was transferred to the Nasdaq Capital Market on September 15, 2022. We failed to comply with milestone dates set forth in the Compliance Plan and did not timely inform Nasdaq of such failure. By letter dated December 1, 2022, Nasdaq informed us that the Panel has determined to grant the Company a final extension to such milestone dates and publicly reprimanded the Company. Such public reprimand, pursuant to Listing Rule 5815(c)(1)(D), was issued to the Company for its failure to comply with Listing Rule 5250(a)(1), requiring it to notify Nasdaq of certain significant developments that led to its prior representations about its ability to satisfy the terms of the Panel’s decision and, therefore, the Nasdaq Capital Market’s continued listing requirements being inaccurate. While we are continuing to use our best efforts to satisfy the Nasdaq Continued Listing Standards in full by no later than January 9, 2023, there can be no assurance that we will be able to do so as set forth in the Compliance Plan, as amended, or at all. Failure to do so would result in the delisting of our Common Stock from Nasdaq, which would likely have a material adverse effect on the trading and value of our Common Stock.

 

The primary intent of the Reverse Stock Split is to increase the market price of our Common Stock to enhance our ability to regain compliance with the Minimum Bid Price Requirement. However, even if we effect the Reverse Stock Split and regain compliance with the Minimum Bid Price Requirement, we may not be able to cure our noncompliance with the MVLS Requirement and the MVPHS Requirement and still may be delisted from Nasdaq. The Reverse Stock Split could enhance our ability to regain compliance with the MVLS Requirement and the MVPHS Requirement if reducing the number of outstanding shares of our Common Stock, and thereby increasing the per share market price of our Common Stock, increases demand for our Common Stock and correspondingly increases the market value for our Common Stock to more than $50,000,000 and the market value of our publicly held shares of Common Stock to more than $15,000,000. The additional potential investors described below could also provide additional alternatives for regaining compliance with the MVLS Requirement and the MVPHS Requirement following the Reverse Stock Split. However, we cannot provide any assurance that (i) any increase our stock price would remain following the Reverse Stock Split; (ii) we would again meet or exceed the MVLS Requirement or the MVPHS Requirement; or (iii) we would satisfy the other requirements for continued listing on The Nasdaq Capital Market.

 

Financial Planning Flexibility. The Board believes it is in the best interest of the Company to approve the Certificate of Amendment to effect the Reverse Stock Split of the Company’s issued and outstanding Common Stock to give the Company greater flexibility in considering and planning for future potential business needs. The Reverse Stock Split will result in authorized and unissued shares becoming available for general corporate purposes as the Board may determine from time to time, including for use for future capital raises and transactions.

 

Additional Potential Investors. In addition to bringing the per share trading price of our Common Stock back above $1.00, we also believe that the Reverse Stock Split will make our Common Stock more attractive to a broader range of institutional and other investors, as we have been advised that the current per share trading price of our Common Stock may affect its acceptability to certain institutional investors, professional investors and other members of the investing public. 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. In addition, some of those policies and practices may function to make the processing of trades in low-priced stocks economically unattractive to brokers.

 

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 trading 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 per share trading price of our Common Stock. As a result, there can be no assurance that the Reverse Stock Split, if completed, will result in the intended benefits described above, that the per share trading price of our Common Stock will increase following the Reverse Stock Split or that the per share trading price of our Common Stock will not decrease in the future.

 

 

 

 

Procedure for Implementing the Reverse Stock Split

 

The Reverse Stock Split, if approved by our Stockholders, would become effective upon the filing (the “Effective Time”) of a certificate of amendment to our Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware. The exact timing of the filing of the certificate of amendment that will effect the Reverse Stock Split will be determined by our Board based on its evaluation as to when such action will be the most advantageous to the Company and our Stockholders. In addition, our Board reserves the right, notwithstanding Stockholder approval and without further action by the Stockholders, to elect not to proceed with the Reverse Stock Split if, at any time prior to filing the amendment to the Company’s Amended and Restated Certificate of Incorporation, our Board, in its sole discretion, determines that it is no longer in our best interest and the best interests of our Stockholders to proceed with the Reverse Stock Split.

 

Effect of the Reverse Stock Split on Holders of Outstanding Common Stock

 

As of December      , 2022 there were       shares outstanding. Depending on the ratio for the Reverse Stock Split determined by our board of directors, a minimum of       and a maximum of       shares of existing Common Stock will be combined into one new share of Common Stock. The table below shows, as of December      , 2022, the number of outstanding shares of Common Stock that would result from the listed hypothetical Reverse Stock Split ratios (without giving effect to the treatment of fractional shares):

 

Reverse Stock Split Ratio   Approximate
Number of
Outstanding
Shares
of Common
Stock Following
the
Reverse
Stock Split		  
1-for-           
1-for            
1-for -           
1-for-           
1-for-           
1-for-           
1-for-           
1-for-           

 

The actual number of shares issued after giving effect to the Reverse Stock Split, if implemented, will depend on the Reverse Stock Split ratio that is ultimately determined by our Board.

 

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 will be rounded up to the next whole number. In addition, the Reverse Stock Split will not affect any Stockholder’s proportionate voting power (subject to the treatment of fractional shares).

 

 

 

 

The implementation of the Reverse Stock Split will result in an increased number of available authorized shares of Common Stock. The resulting increase in such availability in the authorized number of shares of Common Stock could have a number of effects on the Company's Stockholders depending upon the exact nature and circumstances of any actual issuances of authorized but unissued shares. Because holders of Common Stock have no preemptive rights to purchase or subscribe for any unissued stock of the Company, the issuance of additional shares of authorized Common Stock that will become newly available as a result of the implementation of the Reverse Stock Split will reduce the current Stockholders' percentage ownership interest in the total outstanding shares of Common Stock. Additionally, the increase in available authorized shares for issuance could have an anti-takeover effect, in that additional shares could be issued (within the limits imposed by applicable law) in one or more transactions that could make a change in control or takeover of the Company more difficult. For example, additional shares could be issued by the Company to dilute the stock ownership or voting rights of persons seeking to obtain control of the Company, even if the persons seeking to obtain control of the Company offer an above-market premium that is favored by a majority of the independent Stockholders. Similarly, the issuance of additional shares to certain persons allied with the Company's management could have the effect of making it more difficult to remove the Company's current management by diluting the stock ownership or voting rights of persons seeking to cause such removal. The Company’s Amended and Restated Certificate of Incorporation and Bylaws also include provisions that may have anti-takeover consequences. The Company has no plans or proposals to adopt other provisions or enter into other arrangements that may have material anti-takeover consequences. The Board is not aware of any attempt, or contemplated attempt, to acquire control of the Company, and this proposal is not being presented with the intent that it be utilized as a type of anti- takeover device.

 

The Company may issue the additional shares of authorized Common Stock that will become available as a result of the Reverse Stock Split without the additional approval of its Stockholders.

 

The Reverse Stock Split may result in some Stockholders owning “odd lots” of less than 100 shares of Common Stock. Odd lot shares may be more difficult to sell, and brokerage commissions and other costs of transactions in odd lots are generally somewhat higher than the costs of transactions in “round lots” of even multiples of 100 shares.

 

After the Effective Time, our Common Stock will have new Committee on Uniform Securities Identification Procedures (CUSIP) numbers, which is a number used to identify our equity securities, and stock certificates with the older CUSIP numbers will need to be exchanged for stock certificates with the new CUSIP numbers by following the procedures described below. After the Reverse Stock Split, we will continue to be subject to the periodic reporting and other requirements of the Securities Exchange Act of 1934, as amended. Our Common Stock will continue to be listed on the Nasdaq Capital Market under the symbol “SCPS”, subject to any decision of Nasdaq to delist our Common Stock.

 

Beneficial Holders of Common Stock (i.e. Stockholders who hold in street name)

 

Upon the implementation of the Reverse Stock Split, we intend to treat shares held by Stockholders through a bank, broker, custodian or other nominee in the same manner as registered Stockholders whose shares are registered in their names. Banks, brokers, custodians or other nominees will be instructed to effect the Reverse Stock Split for their beneficial holders holding our Common Stock in street name. However, these banks, brokers, custodians or other nominees may have different procedures than registered Stockholders for processing the Reverse Stock Split. Stockholders who hold shares of our Common Stock with a bank, broker, custodian or other nominee and who have any questions in this regard are encouraged to contact their banks, brokers, custodians or other nominees.

 

Registered “Book-Entry” Holders of Common Stock (i.e. Stockholders that are registered on the transfer agent’s books and records but do not hold stock certificates)

 

Certain of our registered holders of Common Stock may 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 a statement 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 (the exchange will be automatic) to receive whole shares of post-Reverse Stock Split Common Stock, subject to adjustment for treatment of fractional shares.

 

Holders of Certificated Shares of Common Stock

 

Until surrendered, we will deem outstanding certificates representing shares of our Common Stock (the “Old Certificates”) held by Stockholders to be cancelled and only to represent the number of whole shares of post-Reverse Stock Split Common Stock to which these Stockholders are entitled, subject to the treatment of fractional shares. Any Old Certificates submitted for exchange, whether because of a sale, transfer or other disposition of stock, will automatically be exchanged for certificates representing the appropriate number of whole shares of post-Reverse Stock Split Common Stock (the “New Certificates”). If an Old Certificate has a restrictive legend on the back of the Old Certificate, the New Certificate will be issued with the same restrictive legends that are on the back of the Old Certificate.

 

 

 

 

STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATE(S) AND SHOULD NOT SUBMIT ANY STOCK CERTIFICATE(S) UNTIL REQUESTED TO DO SO.

 

Fractional Shares

 

We do not currently intend to issue fractional shares in connection with the Reverse Stock Split. Therefore, we will not issue certificates representing fractional shares. In lieu of issuing fractions of shares, we will round up to the next whole number.

 

Effect of the Reverse Stock Split on Employee Plans, Options, Restricted Stock Awards and Units, Warrants, and Convertible or Exchangeable Securities

 

Based upon the Reverse Stock Split ratio determined by the Board, proportionate adjustments are generally required to be made to the per share exercise price and the number of shares issuable upon the exercise or conversion of all outstanding options, warrants, convertible or exchangeable securities entitling the holders to purchase, exchange for, or convert into, shares of Common Stock. This would result in approximately the same aggregate price being required to be paid under such options, warrants, convertible or exchangeable securities upon exercise, and approximately the same value of shares of Common Stock being delivered upon such exercise, exchange or conversion, immediately following the Reverse Stock Split as was the case immediately preceding the Reverse Stock Split. The number of shares deliverable upon settlement or vesting of restricted stock awards will be similarly adjusted, subject to our treatment of fractional shares. The number of shares reserved for issuance pursuant to these securities will be proportionately based upon the Reverse Stock Split ratio determined by the Board, subject to our treatment of fractional shares.

 

Accounting Matters

 

The proposed amendment to the Company’s Amended and Restated Certificate of Incorporation will not affect the par value of our Common Stock per share, which will remain $0.001 par value per share. As a result, as of the Effective Time, the stated capital attributable to Common Stock and the additional paid-in capital account on our balance sheet will not change due to the Reverse Stock Split. Reported per share net income or loss will be higher because there will be fewer shares of Common Stock outstanding.

 

Certain Federal Income Tax Consequences of the Reverse Stock Split

 

The following summary describes certain material U.S. federal income tax consequences of the Reverse Stock Split to holders of our Common Stock:

 

Unless otherwise specifically indicated herein, this summary addresses the tax consequences only to a beneficial owner of our Common Stock that is a citizen or individual resident of the United States, a corporation organized in or under the laws of the United States or any state thereof or the District of Columbia or otherwise subject to U.S. federal income taxation on a net income basis in respect of our Common Stock (a “U.S. holder”). A trust may also be a U.S. holder if (1) a U.S. court is able to exercise primary supervision over administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) it has a valid election in place to be treated as a U.S. person. An estate whose income is subject to U.S. federal income taxation regardless of its source may also be a U.S. holder. 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, 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,” “conversion” 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). The following summary is based upon the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), applicable Treasury Regulations thereunder, judicial decisions and Internal Revenue Service (“IRS”) rulings, as of the date hereof, all of which are subject to change, possibly on a retroactive basis. Tax consequences under state, local, foreign, and other laws are not addressed herein. Each Stockholder should consult their tax advisor as to the particular facts and circumstances which may be unique to such Stockholder and also as to any estate, gift, state, local or foreign tax considerations arising out of the Reverse Stock Split.

 

 

 

 

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.

 

PLEASE CONSULT YOUR OWN TAX ADVISOR REGARDING THE U.S. FEDERAL, STATE, LOCAL, AND FOREIGN INCOME AND OTHER TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT IN YOUR PARTICULAR CIRCUMSTANCES UNDER THE INTERNAL REVENUE CODE AND THE LAWS OF ANY OTHER TAXING JURISDICTION.

 

Tax Consequences of the Stockholders

 

The Reverse Stock Split is intended to qualify as a tax-free recapitalization under the Code. Assuming the Reverse Stock Split so qualifies, then generally, for U.S. federal income tax purposes, no gain or loss will be recognized by the Company in connection with the Reverse Stock Split, and no gain or loss will be recognized by the Stockholders that exchange their pre-split shares for post-split shares. The aggregate tax basis of the post-split shares received will be equal to the aggregate tax basis of the pre-split shares exchanged therefore, and the holding period of the post-split shares received will include the holding period of the pre-split shares exchanged.

 

The U.S. federal income tax consequences of the rounded-up share are unclear. A U.S. holder of a pre-split share may recognize income or gain to the extent that the value of the rounded-up share exceeds the tax basis of the post-split fractional share so “rounded-up.” Each U.S. holder should consult with their tax advisor with respect to the computation of gain or loss and adjusted tax basis in the shares issued in the Reverse Stock Split (including the rounded-up shares) based on their specific facts.

 

No Appraisal Rights

 

Under Delaware law and our charter documents, holders of our Common Stock will not be entitled to dissenter’s rights or appraisal rights with respect to the Reverse Stock Split.

 

Board Recommendation

 

THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF AN AMENDMENT TO THE COMPANY’S AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO AUTHORIZE A REVERSE STOCK SPLIT OF OUR ISSUED AND OUTSTANDING COMMON STOCK.

 

 

 

 

STOCKHOLDER PROPOSALS

 

There are no proposals by any security holder which are or could have been included within this Consent Solicitation.

 

****

 

Important Notice Regarding the Availability of this Consent Statement.

 

In accordance with the rules of the SEC, we are advising the Company’s Stockholders of the availability on the Internet of this Consent Statement and all other solicitation materials in connection with this Consent Solicitation. These rules allow us to provide access to proxy and consent materials in one of two ways. Because we have elected to utilize the “full set delivery” option, we are delivering, to all Stockholders, paper copies of this Consent Statement and all other solicitation materials in connection with this Consent Solicitation, as well as providing access to those materials on a publicly accessible website. Under Delaware law, the Proposals will become effective if valid, unrevoked consents signed by the holders of a majority of the voting power of our common stock as of the Record Date are delivered to the Company within 60 days of the earliest-dated consent delivered to the Company. This Consent Statement and all other solicitation materials in connection with this Consent Solicitation, including the Consent Card, are available, free of charge, at                                          .

 

 

 

 

AVAILABLE INFORMATION

 

We are currently subject to the information requirements of the Securities Exchange Act of 1934, as amended, and in accordance therewith file electronically periodic reports, proxy statements and other information with the SEC relating to our business, financial statements and other matters. The SEC maintains an Internet site (www.sec.gov) that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. Copies of these reports, proxy and information statements and other information may be obtained by electronic request at the following e-mail address: [email protected].

 

We make available, free of charge and through our Internet web site at www.scopusbiopharma.com, our periodic reports, current reports and any amendments to any such reports and our proxy statements and other information filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. You may also request copies of our SEC by written request addressed to our Corporate Secretary at our principal executive offices.

 

Our board of directors hopes that our Stockholders will complete, date and sign the enclosed Written Consent and return it in the accompanying envelope. Prompt response will greatly facilitate arrangements for the meeting, and your cooperation is appreciated.

 

* * *

 

  BY ORDER OF THE BOARD OF DIRECTORS
   
  Joshua R. Lamstein
  Chairman and Director
New York, NY  
 December                 , 2022  

 

 

 

 

Appendix A

 

CERTIFICATE OF AMENDMENT OF

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF SCOPUS BIOPHARMA INC.

 

Scopus BioPharma Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:

 

FIRST: Effective upon the filing of this amendment to the Corporation’s Amended and Restated Certificate of Incorporation (the “Effective Time”), each      * shares of the Corporation’s common stock (“Common Stock”) issued and outstanding immediately prior to the Effective Time either issued and outstanding or held by the Corporation as treasury stock shall be combined into one (1) validly issued, fully paid and non-assessable share of Common Stock without any further action by the Corporation or the holder thereof (the “Reverse Stock Split”); provided that no fractional shares shall be issued to any holder and that instead of issuing such fractional shares, the Corporation shall round shares up to the nearest whole number. Each certificate that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”), shall thereafter represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been combined, subject to the treatment of fractional shares as described above.”

 

SECOND: This Certificate of Amendment was duly adopted in accordance with Sections 141 and 242 of the DGCL. The Board duly adopted resolutions setting forth and declaring advisable this Certificate of Amendment and directed that the proposed amendments be considered by the stockholders of the Corporation. Written consents were solicited from all of our stockholders of record pursuant to Section 228 of the DGCL and the Corporation’s Amended and Restated Bylaws. A consent solicitation was mailed on or about December            , 2022 and the necessary number of shares consented to the proposed amendments. The stockholders of the Corporation duly adopted this Certificate of Amendment.

 

IN WITNESS WHEREOF, this Certificate of Amendment of the Amended and Restated Certificate of Incorporation has been executed as of this              day of December, 2022.

 

SCOPUS BIOPHARMA INC.

 

By:          
Name:  
Title:  

 

* This amendment approves the Reverse Stock Split of the Corporation’s Common Stock, at a ratio in the range of 1-for-         to 1-for           . By approving this amendment, the stockholders of the Corporation would be deemed to approve any ratio within the range referred to above as determined by the Board of Directors in its sole discretion.

 

 

 

 

PRELIMINARY MATERIALS
SUBJECT TO COMPLETION, DATED DECEMBER 2, 2022

 

FORM OF CONSENT CARD

WRITTEN CONSENT OF STOCKHOLDERS OF

SCOPUS BIOPHARMA INC.

 

The undersigned stockholder of Scopus BioPharma Inc. (the “Company”) hereby acknowledges receipt of the Notice of Consent Solicitation and accompanying Consent Solicitation Statement, each dated December              , 2022. The undersigned hereby consents (by checking the FOR box) or declines to consent (by checking the AGAINST box or the ABSTAIN box) to the adoption of the following recitals and resolutions:

 

WHEREAS, the Board of Directors of the Company has determined that it is in the best interests of the Company and its stockholders for the stockholders to approve a reverse stock split of the Company’s outstanding shares of common stock, at a ratio of not less than 1-for-      and not greater than 1-for-      to become effective upon the filing of the Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Company with the Secretary of State of the State of Delaware (the “Reverse Stock Split”), and has referred the same to the stockholders of the Company for approval by written consent;

 

WHEREAS, the Board of Directors of the Company approved the Reverse Stock Split on December             , 2022 and recommended that the stockholders vote “FOR” the below resolution, which it has deemed is in the best interests of the Company and its stockholders;

 

NOW, THEREFORE, IT IS RESOLVED, that the stockholders of the Company hereby approve an amendment to the Company’s Amended and Restated Certificate of Incorporation to authorize the Board of Directors (the “Board”) of the Company to effect the Reverse Stock Split, including having the discretion as to whether or not the Reverse Stock Split is to be effected, and with the exact ratio of any reverse split to be set at a whole number at a ratio of not less than 1-for-        and not greater than 1-for-          as determined by the Board in its discretion, effective upon filing a Certificate of Amendment to the Company’s Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware, in the form attached as Appendix A to the Consent Solicitation Statement;

 

¨FOR ¨AGAINST ¨ABSTAIN

 

This Written Consent action may be executed in counterparts. Failure of any particular stockholder(s) to execute and deliver counterparts is immaterial so long as the holders of a majority of the voting power of the common stock of the Company do execute and deliver counterparts.

 

This Written Consent is solicited by the Company’s Board of Directors.

 

IN WITNESS WHEREOF, the undersigned has executed this Written Consent on December ________, 2022.

 

   
Print name(s) exactly as shown on Stock Certificate(s)  

 

     
Signature (and Title, if any) Signature (if held jointly)

 

Sign exactly as name(s) appear(s) on stock certificate(s). If stock is held jointly, each holder must sign. If signing is by attorney, executor, administrator, trustee or guardian, give full title as such. A corporation or partnership must sign by an authorized officer or general partner, respectively.

 

PLEASE SIGN, DATE AND MAIL YOUR CONSENT PROMPTLY IN THE POSTAGE-PAID ENVELOPE ENCLOSED.

 

 

 


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