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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): August 15, 2024
Neuraxis,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-41775 |
|
45-5079684 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
No.) |
11550
N. Meridian Street, Suite 325
Carmel,
IN 46032
(Address
of principal executive offices)
Registrant’s
telephone number, including area code: (812) 689-0791
N/A
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
Stock, $0.001 par value |
|
NRXS |
|
NYSE
American |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item
5.07 Submission of Matters to a Vote of Security Holders
On
August 15, 2024, Neuraxis, Inc. (the “Company”) held an annual meeting of stockholders (the “Annual Meeting”)
at 11611 N. Meridian Street, Suite 330, Carmel, Indiana 46032.
As
of the close of business on June 17, 2024, the record date for the Annual Meeting (the “Record Date”), 6,647,960 shares of
the Company’s common stock, par value $0.001 (the “Common Stock”) were outstanding and entitled to vote. At the Annual
Meeting, a total of 4,362,195 votes, comprised of shares of the Company’s Common Stock, equivalent to approximately 65.61% of the
outstanding votes, were represented in person or by proxy at the Annual Meeting, constituting a quorum. The matters that were voted upon
at the Annual Meeting, and the number of votes cast for or against/withheld, as well as the number of abstentions and broker non-votes,
as to such matters, where applicable, are set forth below.
1.
The five nominees for director were elected to serve a one-year term as follows:
Director | |
Votes For | | |
% Votes For | | |
Votes Withheld | | |
% Votes Withheld | |
Brian Carrico | |
| 3,640,809 | | |
| 99.99 | % | |
| 390 | | |
| 0.01 | % |
Dr. Christopher R Brown | |
| 3,113,246 | | |
| 85.50 | % | |
| 527,953 | | |
| 14.50 | % |
Bradley Mitch Watkins | |
| 3,622,864 | | |
| 99.50 | % | |
| 18,335 | | |
| 0.50 | % |
Beth Keyser | |
| 3,581,615 | | |
| 98.36 | % | |
| 59,584 | | |
| 1.64 | % |
Kristen Ferge | |
| 3,640,809 | | |
| 99.99 | % | |
| 390 | | |
| 0.01 | % |
2.
The proposal to ratify the appointment of Rosenberg Rich Baker Berman, P.A. as the Company’s independent registered public accounting
firm for the fiscal year ending December 31, 2024 was approved as follows:
Votes
For |
|
Votes
Against |
|
Broker
Non-Votes |
|
Votes
Abstained |
4,361,643 |
|
75 |
|
0 |
|
477 |
3.
The proposal to amend the Neuraxis, Inc. 2022 Omnibus Securities and Incentive Plan was approved as follows:
Votes
For |
|
Votes
Against |
|
Broker
Non-Votes |
|
Votes
Abstained |
2,770,781 |
|
865,918 |
|
720,996 |
|
4,500 |
A
copy of the second amendment to the Company’s 2022 Omnibus Securities and Incentive Plan is attached hereto as Exhibit 10.1 and
is incorporated by reference herein.
4.
The proposal to amend the Company’s Certificate of Incorporation to authorize “blank check” preferred stock was approved
as follows:
Votes
For |
|
Votes
Against |
|
Broker
Non-Votes |
|
Votes
Abstained |
3,523,682 |
|
117,467 |
|
720,996 |
|
50 |
A
copy of the amendment to the Company’s Certificate of Incorporation is attached hereto as Exhibit 3.1 and is incorporated by reference
herein.
5.
The proposal of the issuance of 20% or more of Company’s outstanding Common Stock upon the conversion of Series B Convertible Preferred
Stock or certain convertible promissory notes was approved as follows:
Votes
For |
|
Votes
Against |
|
Broker
Non-Votes |
|
Votes
Abstained |
3,627,421 |
|
13,778 |
|
720,996 |
|
0 |
A
copy of the Company’s Certificate of Designation of Series B Convertible Preferred is attached hereto as Exhibit 3.2 and is incorporated
by reference herein.
6.
The proposal, in a non-binding advisory vote, of the compensation of the Company’s named executive officers as disclosed in the
proxy statement pursuant to the compensation disclosure rules of the SEC was approved as follows:
Votes
For |
|
Votes
Against |
|
Broker
Non-Votes |
|
Votes
Abstained |
3,609,621 |
|
26,578 |
|
720,996 |
|
5,000 |
7.
The proposal to select the frequency of holding the stockholder advisory vote on the Company’s executive compensation once every
three years was approved as follows:
Every
Year |
|
Once
Every Two Years |
|
Once
Every Three Years |
|
Votes
Abstained |
918,413 |
|
574,893 |
|
2,147,843 |
|
50 |
8.
The proposal of the adjournment of the Annual Meeting was approved as follows:
Votes
For |
|
Votes
Against |
|
Broker
Non-Votes |
|
Votes
Abstained |
4,317,662 |
|
44,533 |
|
0 |
|
0 |
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date:
August 21, 2024 |
NEURAXIS,
INC. |
|
|
|
By: |
/s/
Brian Carrico |
|
Name: |
Brian
Carrico |
|
Title: |
President
and Chief Executive Officer |
EXHIBIT
3.1
CERTIFICATE
OF AMENDMENT
TO
THE
CERTIFICATE
OF INCORPORATION OF
NEURAXIS,
INC.
Neuraxis,
Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware
(the “Corporation”), hereby certifies as follows:
1.
The name of the Corporation is Neuraxis, Inc. The Corporation’s original Certificate of Incorporation (the “Certificate
of Incorporation”) was filed with the Secretary of State of the State of Delaware on June 23, 2022.
2.
A certificate of amendment of the Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on January
12, 2023.
3.
Pursuant to Section 242 of the DGCL, this certificate of amendment to the Certificate of Incorporation (this “Certificate of
Amendment”) further amends the provisions of the Corporation’s Certificate of Incorporation.
4.
ARTICLE IV of the Certificate of Incorporation of the Corporation is hereby amended and restated to read in its entirety as follows:
“ARTICLE
IV
The
total number of shares of stock which the Company shall have authority to issue is 105,000,000, consisting of 100,000,000 shares of common
stock, par value $0.001 per share (the “Common Stock”), and 5,000,000 shares of blank check preferred stock, par value
$0.001 per share (the “Preferred Stock” or “Blank Check Preferred Stock”).
B. |
ISSUANCE
OF PREFERRED STOCK. |
The
Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Corporation (the “Board”)
is hereby expressly authorized to provide for the issue of all or any of the shares of the Blank Check Preferred Stock in one or more
series, and to fix the number of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting
powers, and such designation, preferences, and relative, participating, optional, or other rights and such qualifications, limitations,
or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board providing for the issuance
of such shares and as may be permitted by the General Corporation Law of the State of Delaware. The Board is also expressly authorized
to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number
of shares of such series then outstanding. In case the number of shares of any series shall be decreased in accordance with the foregoing
sentence, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
C. |
RIGHTS,
PREFERENCES, PRIVILEGES AND RESTRICTIONS OF COMMON STOCK. |
1.
General. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights,
powers and preferences of the holders of the Preferred Stock set forth herein.
2.
Voting. Each holder of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such
holder on all matters on which stockholders generally are entitled to vote. There shall be no cumulative voting.”
5.
This Certificate of Amendment to the Corporation’s Certificate of Incorporation has been duly authorized and adopted by the Board
in accordance with the provisions of Section 242 of the Delaware General Corporation Law.
6.
That thereafter, pursuant to resolution of the Board, a meeting of the stockholders of the Corporation was duly called and held, upon
notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of
shares as required by statute were voted in favor of this Certificate of Amendment.
7.
This the Certificate of Amendment shall become effective on the date filed with the State of Delaware.
IN
WITNESS WHEREOF, Neuraxis, Inc. has caused this Certificate of Amendment to be signed by Brian Carrico, a duly authorized officer of
the Corporation, on ________, 2024.
Brian
Carrico |
|
Chief
Executive Officer |
|
EXHIBIT
3.2
NEURAXIS,
INC.
CERTIFICATE
OF DESIGNATION OF PREFERENCES,
RIGHTS
AND LIMITATIONS
OF
SERIES
B PREFERRED STOCK
Neuraxis,
Inc., a Delaware corporation (the “Corporation”), does hereby certify that the board of directors of the Corporation
(the “Board of Directors”) has adopted the following resolution creating the following series of the Corporation’s
Series B Preferred Stock and determined the voting powers, designations, powers, preferences and relative, participating, optional, or
other special rights, and the qualifications, limitations, and restrictions thereof, of such series:
RESOLVED,
that the Board of Directors does hereby provide for the issuance of the following series of preferred stock for cash or exchange of other
securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to
such series of preferred stock as follows:
Definitions.
For the purposes hereof, the following terms shall have the following meanings:
“Alternate
Consideration” shall have the meaning set forth in Section 8(b).
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Common
Stock” means the Corporation’s common stock, par value $0.001 per share, and stock of any other class of securities into
which such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Corporation which would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Conversion
Date” shall have the meaning set forth in Section 7(b).
“Conversion
Price” shall have the meaning set forth in Section 7(a).
“Conversion
Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in accordance
with the terms hereof.
“Fundamental
Transaction” shall have the meaning set forth in Section 8(b).
“Holder”
shall have the meaning set forth in Section 2.
“Liquidation”
shall have the meaning set forth in Section 5.
“Notice
of Conversion” shall have the meaning set forth in Section 7(b).
“Person”
means an individual, corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or agency or subdivision thereof) or other entity of any kind.
“Preferred
Stock” shall have the meaning set forth in Section 2.
“Stated
Value” shall have the meaning set forth in Section 2.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Corporation and any successor transfer agent of the Corporation.
Section
2. Designation, Amount and Par Value. The series of preferred stock shall be designated as Series B Preferred Stock (the “Preferred
Stock”) and the number of shares so designated shall be 4,000,000, which shall not be subject to increase without the written
consent of the holders of at least 80% of the Preferred Stock (each, a “Holder” and collectively, the “Holders”)
in accordance with Section 4 below. Each share of Preferred Stock shall have a par value of $0.001 per share and a stated value
of $2.38 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization
with respect to the Preferred Stock (the “Stated Value”).
Section
3. Dividends. In addition to stock dividends or distributions for which adjustments are to be made pursuant to Section
8, before any dividends shall be paid or set aside for payment on any other class of security of the Corporation, each holder of
the Series B Preferred Stock shall be entitled to receive dividends, in the manner provided herein, payable on the Stated Value of the
Series B Preferred Stock at a rate of 8.5% per annum, which shall be cumulative and be due and payable quarterly at the Corporation’s
discretion either in cash or in shares of Common Stock at the Series B Conversion Price (the applicable date of payment, a “Dividend
Date”). Such dividends shall accrue from the date of issue of each share of Series B Preferred Stock, whether or not declared,
through the Dividend Date. If a Dividend Date is not a business day, then the dividend shall be due and payable on the business day immediately
following such Dividend Date. Dividends shall be payable to holders of record of the Series B Preferred Stock as they appear on the stock
books of the Corporation on the Dividend Date. The rights under this Section shall expire automatically on June 30, 2025.
Section
4. Voting Rights. On any matter presented to the stockholders of the Corporation for their action or consideration at any
meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each Holder shall be entitled
to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held by such
Holder are convertible as of the record date for determining stockholders entitled to vote on such matter, provided, however, such Holder
shall not be entitled to cast a number of votes in excess of the Maximum Percentage (defined below). Except as provided by law or by
the other provisions of this Certificate of Designation, the Holders shall vote together with the holders of shares of Common Stock as
a single class. However, as long as any shares of Preferred Stock are outstanding, the Corporation shall not, without the affirmative
vote of the Holders of a majority of the then outstanding shares of the Preferred Stock, (a) alter or change adversely the powers, preferences
or rights given to the Preferred Stock or alter or amend this Certificate of Designation, (b) authorize or create any class of stock
ranking as to dividends, redemption or distribution of assets upon a Liquidation senior to the Preferred Stock, (c) amend its certificate
of incorporation or other charter documents in any manner that adversely affects any rights of the Holders, (d) increase the number of
authorized shares of Preferred Stock, or (e) enter into any agreement with respect to any of the foregoing.
Section
5. Liquidation. Upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”),
the Holders of shares of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available
for distribution to its stockholders, before any payment shall be made to the holders of shares of Common Stock or any other capital
stock by reason of their ownership thereof, an amount equal the Stated Value per share, plus any dividends declared but unpaid thereon.
The Corporation shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein, to
each Holder. The rights under this Section shall automatically expire on June 30, 2025.
Section
6. Limitations on Corporate Actions. As long as any shares of Series B Preferred Stock are outstanding, the Corporation
shall not, without the written consent or affirmative vote of the holders of a majority of the then-outstanding shares of Series B Preferred
Stock (the “Requisite Holders”), consenting or voting (as the case may be) as a separate class from the Common Stock, either
directly or by amendment, merger, consolidation or otherwise:
(i)
create, incur, assume, guarantee, endorse or be or remain liable, contingently or otherwise, with respect to any indebtedness outside
of the ordinary course of business;
(ii)
authorize or create any class of stock ranking as to dividends, redemption or distribution of assets upon a Liquidation senior to the
Series B Preferred Stock; or
(iii)
enter into any agreement with respect to any of the foregoing.
Section
7. Conversion.
(a)
Conversion at Option of Holder. Each Holder may, at its option, at any time and from time to time, elect to convert each share
of Preferred Stock plus accrued, but unpaid dividends thereon, into such number of fully paid and non-assessable shares of Common Stock
as is determined by dividing the Stated Value by the Conversion Price in effect on the Conversion Date. The “Conversion Price”
shall initially be equal to $2.38. Such initial Conversion Price, and the rate at which shares of Preferred Stock plus accrued, but unpaid
dividends thereon, may be converted into shares of Common Stock, shall be subject to adjustment as provided below.
(b)
Mechanics of Conversion. Holders shall effect conversions by providing the Corporation with the form of conversion notice attached
hereto as Annex A (the “Notice of Conversion”). Each Notice of Conversion shall specify the number of shares of Preferred
Stock to be converted, the number of shares of Preferred Stock owned prior to the conversion at issue, the number of shares of Preferred
Stock owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which date may not be prior
to the date the applicable Holder delivers by facsimile such Notice of Conversion to the Corporation (such date, the “Conversion
Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice
of Conversion to the Corporation is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any
medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion from be required. The calculations and entries
set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error. To effect conversions of shares
of Preferred Stock, a Holder shall not be required to surrender the certificate(s) representing the shares of Preferred Stock to the
Corporation unless all of the shares of Preferred Stock represented thereby are so converted, in which case such Holder shall deliver
the certificate representing such shares of Preferred Stock promptly following the Conversion Date at issue. As soon as practicable after
the Conversion Date, the Corporation shall issue and deliver to such Holder, or to his, her or its nominees, a certificate or certificates
for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof, together with cash
as provided in Section 7(d) in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion (if applicable)
and the payment of any declared but unpaid dividends on the shares of Preferred Stock converted. Such converted Preferred Stock shall
be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action
(without the need for stockholder action) as may be necessary to reduce the authorized number of shares of its preferred stock accordingly.
(c)
Reserve Shares Issuable Upon Conversion. The Corporation covenants that it will reserve a sufficient number of shares of Common
Stock for issuance to the Holders upon conversion of the Preferred Stock. The Corporation further covenants that all shares of Common
Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.
(d)
Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Preferred
Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Corporation shall
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Conversion Price or round up to the next whole share.
(e)
Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of the Preferred Stock shall be made without charge
to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares,
provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involving the issuance
and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Preferred Stock
and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting
the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation
such tax has been paid.
(f)
Ownership Cap. Notwithstanding anything to the contrary contained herein, the Holder shall not be entitled to receive Common Shares
to the extent (but only to the extent) that such conversion or receipt would cause the Holder Group (as defined below) to become, directly
or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the 1934 Act and the rules and regulations promulgated
thereunder) of a number of Common Shares of a class that is registered under the 1934 Act which exceeds the Maximum Percentage of the
Common Shares of such class that are outstanding at such time. For purposes of this Section 7(f), (i) the term “Maximum
Percentage” shall initially be set at the discretion of each Holder to a percentage designated by such Holder on its signature
page to the Purchase Agreement between 4.99% and 19.99% until the date the Stockholder approval is obtained. Notwithstanding the foregoing,
by written notice to the Corporation (which may be by email), (i) which will not be effective until the sixty-first (61st
) day after such written notice is delivered to the Corporation, the Holder may reset the Maximum Percentage to a higher percentage,
not to exceed 19.99% until the date the Stockholder Approval is obtained, to the extent applicable, and (ii) which will be effective
immediately after such notice is delivered to the Corporation, the Holder may reset the Maximum Percentage to a lower percentage and
(ii) the term “Holder Group” shall mean the Holder plus any other Person with which the Holder is considered to be part of
a group under Section 13 of the 1934 Act or with which the Holder otherwise files reports under Sections13 and/or 16 of the 1934 Act.
In determining the number of Common Shares of a particular class outstanding at any point in time, the Holder may rely on the number
of outstanding Common Shares of such class as reflected in (x) the Company’s most recent Annual Report on Form10-K or Quarterly
Report on Form 10-Q, each filed with the Securities and Exchange Commission, as the case may be, (y)a more recent public announcement
by the Company or (z) a more recent notice by the Company or the Transfer Agent to the Holder setting forth the number of Common Shares
of such class then outstanding. For any reason at any time, upon written or oral request of the Holder, the Company shall, within one
(1) Business Day of such request, confirm orally and in writing to the Holder the number of Common Shares of any class then outstanding.
Section
8. Adjustments.
(a)
Stock Dividends and Stock Splits. If the Corporation, at any time while the Preferred Stock is outstanding: (i) pays a stock dividend
or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock
Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of
the Preferred Stock), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by
way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification
of shares of the Common Stock, any shares of capital stock of the Corporation, then the Conversion Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately
before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event.
Any adjustment made pursuant to this Section 8(a) shall become effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or re-classification.
(b)
Fundamental Transaction. If, at any time while the Preferred Stock is outstanding, (i) the Corporation, directly or indirectly,
in one or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
Common Stock, (iv) the Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization
or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted
into or exchanged for other securities, cash or property, or (v) the Corporation, directly or indirectly, in one or more related transactions
consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of
Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or
affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental
Transaction”), then, upon any subsequent conversion of the Preferred Stock, the Holder shall have the right to receive, for
each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction
(without regard to any limitation on the conversion of the Preferred Stock), the number of shares of Common Stock of the successor or
acquiring corporation or of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate
Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock
for which the Preferred Stock is convertible immediately prior to such Fundamental Transaction (without regard to any limitation on the
conversion of the Preferred Stock). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately
adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of
Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration
in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall
be given the same choice as to the Alternate Consideration it receives upon any conversion of the Preferred Stock following such Fundamental
Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in
such Fundamental Transaction shall file a new Certificate of Designation with the same terms and conditions and issue to the Holders
new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock
into Alternate Consideration. The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation
is not the survivor to assume in writing all of the obligations of the Corporation under this Certificate of Designation and the Settlement
Agreement in accordance with the provisions of this Section 8(b).
(c)
Calculations. All calculations under this Section 8 shall be made to the nearest cent or the nearest 100th of
a share, as the case may be. For purposes of this Section 8, the number of shares of Common Stock deemed to be issued and outstanding
as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued
and outstanding.
(d)
Notice to Holders.
(i)
Adjustments. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 8, the Corporation shall
promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement
of the facts requiring such adjustment.
(ii)
Notice to Allow Conversion by Holder. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form)
on the Common Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C)
the Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer
of all or substantially all of the assets of the Corporation, or any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed at each office or agency
maintained for the purpose of conversion of the Preferred Stock, and shall cause to be delivered to each Holder at its last address as
it shall appear upon the stock books of the Corporation, at least twenty (20) calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to
be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to
deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to
be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information
regarding the Corporation or any of its subsidiaries, the Corporation shall simultaneously file such notice with the United States Securities
and Exchange Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert the Preferred Stock (or
any part hereof) during the 20-day period commencing on the date of such notice through the effective date of the event triggering such
notice except as may otherwise be expressly set forth herein.
Section
9. Miscellaneous.
(a)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder shall be in writing
and delivered personally, or sent by a nationally recognized overnight courier service, addressed to the Corporation at 11611 N. Meridian
St, Suite 330, Carmel, IN 46032 , Attention Brian Carrico, CEO, e-mail address or such other e-mail address, or address as the Corporation
may specify for such purposes by notice to the Holders delivered in accordance with this Section 9. Any and all notices or other
communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by facsimile,
by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number, e-mail address,
or address of such Holder appearing on the books of the Corporation, or if no such facsimile number, e-mail address, or address appears
on the books of the Corporation, at the principal place of business of such Holder, as set forth in the securities purchase agreement
by and between such Holder and the Corporation. Any notice or other communication or deliveries hereunder shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail prior to 5:30 p.m.
(New York City time) on any date, (ii) the next Business Day after the date of transmission, if such notice or communication is delivered
via facsimile or e-mail on a day that is not a Business Day or later than 5:30 p.m. (New York City time) on any Business Day, (iii) the
second Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given.
(b)
Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair
the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages, accrued dividends and accrued interest,
as applicable, on the shares of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.
(c)
Lost or Mutilated Preferred Stock Certificate. If a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen
or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate,
or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Preferred Stock so
mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of
the ownership hereof reasonably satisfactory to the Corporation or the Transfer Agent.
(d)
Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate
as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of
Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term
of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder)
of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other
occasion. Any waiver by the Corporation or a Holder must be in writing.
(e)
Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate
of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain
applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder
violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the
maximum rate of interest permitted by law.
(f)
Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day.
(g)
Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation
and shall not be deemed to limit or affect any of the provisions hereof.
(h)
Status of Converted or Redeemed Preferred Stock. Shares of Preferred Stock may only be issued pursuant to a securities purchase
agreement by and between the Holder and the Corporation. If any shares of Preferred Stock shall be converted, redeemed or reacquired
by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated
as Series B Preferred Stock.
*********************
ANNEX
A
NOTICE
OF CONVERSION
The
undersigned hereby elects to convert the number of shares of Series B Preferred Stock indicated below into shares of common stock, par
value $0.001 per share (the “Common Stock”), of Neuraxis, Inc., a Delaware corporation (the “Corporation”),
according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such
certificates and opinions as may be required by the Corporation. No fee will be charged to the Holders for any conversion, except for
any such transfer taxes.
Conversion
calculations:
Date
of Conversion:____________________
Number
of shares of Preferred Stock owned prior to Conversion:____________________
Number
of shares of Preferred Stock to be Converted:
Number
of shares of Common Stock to be Issued:
Applicable
Conversion Price: ________________________
Number
of shares of Preferred Stock subsequent of Conversion: ___________________
Address
for Delivery:
Or
DWAC Instructions (if can be sold without restriction under Rule 144):
Broker
no: _________________________________
Account
no:
[HOLDER] |
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By: |
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Name: |
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Title: |
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EXHIBIT
10.1
SECOND
AMENDMENT TO
NEURAXIS,
INC.
2022
OMNIBUS SECURITIES AND INCENTIVE PLAN
THIS
SECOND AMENDMENT TO NEURAXIS, INC. 2022 OMNIBUS SECURITIES AND INCENTIVE PLAN (this “Amendment”) is executed effective
the ___ day of _____, 2024 (the “Effective Date”) by NEURAXIS, INC., a Delaware corporation (the “Company”).
BACKGROUND
A.
The NEURAXIS, INC. 2022 OMNIBUS SECURITIES AND INCENTIVE PLAN was adopted on November 1, 2022, and was amended on January 18, 2023
(the “Plan”) (capitalized terms not otherwise defined in this Amendment shall have the meanings ascribed to such
terms in the Plan).
B.
The Company now desires to amend the Plan to (i) increase the aggregate number of shares of common stock that may be issued under
the Plan from three hundred thousand (300,000) shares of Common Stock to six hundred thousand (600,000) shares of Common Stock and
(ii) to insert an “evergreen” provision that allows for an annual increase in the number of shares available for
issuance under the 2022 Plan to be added on the first day of each fiscal year through and including 2031 in an amount equal to 5% of
the number of shares of our common stock outstanding on the immediately preceding December 31 or such lesser amount determined by
our board of directors or the compensation committee, as set forth herein.
AMENDMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Plan is amended as
follows:
1. Section 5.1 of the Plan is hereby amended and restated in its entirety to read as follows:
Section
5.1. Stock Grant and Award Limits. The Committee may from time to time grant Awards to one or more Employees, Directors and/or
Consultants determined by it to be eligible for participation in the Plan in accordance with the provisions of ARTICLE VI. Subject to
ARTICLE XIV, the aggregate number of shares of Common Stock (including shares of Common Stock underlying Options designated as Incentive
Stock Options) that may be issued under the Plan shall not exceed six hundred thousand (600,000) shares of Common Stock, plus an annual
increase on the first day of each calendar year beginning January 1, 2025 and ending on and including January 1, 2031 equal to the lesser
of (A) five percent (5%) of the Common Shares outstanding on the final day of the immediately preceding calendar year, and (B) such smaller
number of Common Shares as determined by the Board or the Compensation Committee. The Common Stock shall be deemed to have been issued
under the Plan solely to the extent actually issued and delivered pursuant to an Award. To the extent that an Award lapses, expires,
is canceled, is terminated unexercised or ceases to be exercisable for any reason, or the rights of its Holder terminate, any Common
Stock subject to such Award shall again be available for the grant of a new Award.
2.
In all other respects, the Plan shall remain unchanged.
[Remainder
of Page Left Blank Intentionally.]
IN
WITNESS WHEREOF, the Company’s undersigned duly authorized officer has signed this Second Amendment to Neuraxis, Inc. 2022 Omnibus
Securities and Incentive Plan.
NEURAXIS,
INC. |
|
|
|
|
By: |
|
|
Name: |
Brian
Carrico |
|
Title: |
Chief
Executive Officer |
|
Date: |
|
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v3.24.2.u1
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Aug. 15, 2024 |
Cover [Abstract] |
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Neuraxis,
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Entity Central Index Key |
0001933567
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Entity Tax Identification Number |
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DE
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Entity Address, Address Line One |
11550
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Entity Address, Address Line Two |
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Entity Address, City or Town |
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Entity Address, State or Province |
IN
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