UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 2)
(Mark One)
x ANNUAL REPORT PURSUANT TO SECTION 13
OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31,
2023
or
¨
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 001-40021
AEON Biopharma, Inc.
(Exact name of registrant as specified in its
charter)
|
|
Delaware |
85-3940478 |
(State or other jurisdiction
of
incorporation or organization) |
(I.R.S. Employer
Identification Number) |
5 Park Plaza
Suite 1750
Irvine, CA 92614
(Address of Principal Executive Offices)
(949) 354-6499
(Registrant’s telephone number)
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class |
Trading symbol |
Name of Exchange on which
registered |
Class A common stock,
$0.0001 par value per share |
AEON |
NYSE American |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨
No x
Indicate
by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes
¨ No x
Indicate
by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days. Yes x
No ¨
Indicate
by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405
of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was
required to submit such files). Yes x No ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
¨ |
Accelerated filer |
¨ |
​ |
​ |
​ |
​ |
​ |
​ |
​ |
​ |
Non-accelerated filer |
x |
Smaller reporting company |
x |
Emerging growth company |
x |
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ¨
Indicate by check mark whether the registrant has filed a report on
and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of
the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ¨
If securities are registered pursuant to Section 12(b) of
the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an
error to previously issued financial statements. x
Indicate by check mark whether any of those error corrections are
restatements that required a recovery analysis of incentive-based compensation received by any of the registrant's executive officers
during the relevant recovery period pursuant to §240.10D-1(b). x
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
The aggregate market value of the voting and non-voting common equity
held by non-affiliates of the registrant, based on the closing price of the registrant's Class A common stock on The Nasdaq Stock
Market LLC on June 30, 2023, the last business day of the registrant’s most recently completed second fiscal quarter, was
approximately $14.2 million.
As
of August 7, 2024, there were 39,522,238 of the registrant’s shares of Class A common stock, $0.0001 par value per share,
outstanding.
EXPLANATORY NOTE
AEON
Biopharma, Inc. (the “Company”) is filing this Amendment No. 2 to its Annual Report on Form 10-K/A (this “Amendment”)
for the fiscal year ended December 31, 2023, which was originally filed with the Securities and Exchange Commission (“SEC”)
on March 29, 2024 and amended on May 14, 2024 (the “Original Filing”). This Amendment is filed as an exhibits-only
filing, solely for the purpose of filing certain exhibits which were inadvertently omitted in the Original Filing.
Other than as expressly set forth above, this Amendment does not,
and does not purport to, amend, update or restate any other items or disclosures contained in the Original Filing and does not reflect
events occurring after the date of the Original Filing. This Amendment consists solely of the cover page, this explanatory note, the
exhibit index and the exhibits filed herewith.
Item
15. |
ExhibitS,
FINANCIAL STATEMENTS Schedules |
The exhibits listed in the following
Exhibit Index are filed, furnished, or incorporated by reference as part of this Annual Report on Form 10-K/A.
Exhibit
No. |
|
Description |
2.1* |
|
Business Combination Agreement, dated as of December 12,
2022, by and among Priveterra Acquisition Corp., Priveterra Merger Sub, Inc. and AEON Biopharma, Inc. (incorporated by
reference to Exhibit 2.1 to the Form 8-K filed by Priveterra Acquisition Corp. with the SEC on December 13, 2022) |
2.1(a)* |
|
Amendment No. 1 to Business Combination Agreement,
dated as of April 27, 2023, by and among Priveterra Acquisition Corp., AEON Biopharma, Inc. and Priveterra Merger Sub, Inc.
(incorporated by reference to Exhibit 2.1 to the Form 8-K filed by Priveterra Acquisition Corp. with the SEC on May 1,
2023) |
3.1 |
|
Third Amended and Restated Certificate of Incorporation
of AEON Biopharma, Inc. (incorporated by reference to Exhibit 3.1 to the Form 8-K filed by the Company with the SEC
on July 27, 2023) |
3.2 |
|
Amended and Restated Bylaws of AEON Biopharma, Inc.
(incorporated by reference to Exhibit 3.2 to the Form 8-K filed by the Company with the SEC on July 27, 2023) |
4.1 |
|
Warrant Agreement between Priveterra Acquisition Corp.
and Continental Stock Transfer & Trust Company, dated as of February 8, 2021 (incorporated by reference to Exhibit 4.1
to the Form 10-K filed by Priveterra Acquisition Corp. with the SEC on March 28, 2022) |
4.2 |
|
Specimen Warrant Certificate (incorporated by reference
to Exhibit 4.2 to the Form 10-K filed by Priveterra Acquisition Corp. with the SEC on March 29, 2024) |
4.3 |
|
Senior Secured Convertible Note, by and among AEON
Biopharma, Inc., Daewoong Pharmaceutical Co., LTD. and AEON Biopharma Sub, Inc. (incorporated by reference to Exhibit 4.1
to the Form 8-K filed by the Company with the SEC on March 28, 2024) |
4.4 |
|
Senior Secured Convertible Note, by and among AEON
Biopharma, Inc., Daewoong Pharmaceutical Co., LTD. and AEON Biopharma Sub, Inc. (incorporated by reference to Exhibit 4.1
to the Form 8-K filed by the Company with the SEC on April 17, 2024) |
4.5† |
|
Description
of AEON Biopharma Inc.’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934. |
10.1+ |
|
AEON Biopharma, Inc. Amended and Restated 2019
Incentive Award Plan (incorporated by reference to Exhibit 10.1 to the Form 8-K filed by the Company with the SEC on July 27,
2023) |
10.1(a)+ |
|
Form of Stock Option Agreement under AEON Biopharma, Inc.
Amended and Restated 2019 Incentive Award Plan (incorporated by reference to Exhibit 10.2 to the Form 8-K filed by the
Company with the SEC on July 27, 2023) |
10.1(b)+ |
|
Form of Restricted Stock Unit Agreement under
AEON Biopharma, Inc. Amended and Restated 2019 Incentive Award Plan (incorporated by reference to Exhibit 10.3 to the Form 8-K
filed by the Company with the SEC on July 27, 2023) |
10.1(c)+ |
|
Form of Restricted Stock Unit Agreement under
AEON Biopharma, Inc. Amended and Restated 2019 Incentive Award Plan (409A Deferred Compensation) (incorporated by reference
to Exhibit 10.4 to the Form 8-K filed by the Company with the SEC on July 27, 2023) |
10.2+ |
|
AEON Biopharma, Inc. 2023 Incentive Award Plan
(incorporated by reference to Exhibit 10.5 to the Form 8-K filed by the Company with the SEC on July 27, 2023) |
10.2(a)+ |
|
Form of Stock Option Agreement under AEON Biopharma, Inc.
2023 Incentive Award Plan (incorporated by reference to Exhibit 10.6 to the Form S-4/A filed by Priveterra Acquisition
Corp. with the SEC on May 1, 2023) |
10.2(b)+ |
|
Form of Restricted Stock Unit Agreement under
AEON Biopharma, Inc. 2023 Incentive Award Plan (incorporated by reference to Exhibit 10.7 to the Form S-4/A filed
by Priveterra Acquisition Corp. with the SEC on May 1, 2023) |
10.3+ |
|
AEON Biopharma, Inc. 2023 Employee
Stock Purchase Plan (incorporated by reference to Exhibit 10.9 to the Form S-1/A filed by the Company with the SEC on April 2,
2024) |
10.4+ |
|
AEON Biopharma, Inc. Non-Employee Director Compensation
Program (incorporated by reference to Exhibit 10.6 to the Form 8-K filed by the Company with the SEC on July 27, 2023) |
10.5+ |
|
Amended and Restated Employment Agreement, by and between
AEON Biopharma, Inc. and Marc Forth (incorporated by reference to Exhibit 10.11 to the Form 8-K filed by the Company
with the SEC on July 27, 2023) |
10.6+ |
|
Employment Agreement, by and between AEON Biopharma, Inc.
and Chad Oh (incorporated by reference to Exhibit 10.12 to the Form 8-K filed by the Company with the SEC on July 27,
2023) |
10.7+ |
|
Employment Agreement, by and between AEON Biopharma, Inc.
and Alex Wilson (incorporated by reference to Exhibit 10.13 to the Form 8-K filed by the Company with the SEC on July 27,
2023) |
10.8+ |
|
Consulting Agreement, by and between AEON Biopharma, Inc.
and Eric Carter, M.D., dated January 30, 2020, and amended on January 30 2020 and September 30, 2020 (incorporated
by reference to Exhibit 10.11 to the Annual Report on Form 10-K filed by the Company with the SEC on March 29, 2024) |
10.9 |
|
Amended and Restated Registration Rights Agreement,
dated as of July 21, 2023, by and between AEON Biopharma, Inc. and the stockholders party thereto (incorporated by reference
to Exhibit 10.20 to the Form 8-K filed by the Company with the SEC on July 27, 2023) |
10.10 |
|
Termination Agreement, dated March 18, 2024, by
and between AEON Biopharma, Inc., AEON Biopharma Sub, Inc. and ACM ARRT J LLC (incorporated by reference to Exhibit 10.5
to the Form 8-K filed by the Company with the SEC on March 19, 2024) |
10.11 |
|
Termination Agreement, dated March 18, 2024, by
and between AEON Biopharma, Inc., AEON Biopharma Sub, Inc. and Polar Multi-Strategy Fund (incorporated by reference to
Exhibit 10.6 to the Form 8-K filed by the Company with the SEC on March 19, 2024) |
10.12 |
|
Subscription Agreement, dated March 19, 2024,
by and between AEON Biopharma, Inc., Daewoong Pharmaceutical Co., LTD. and AEON Biopharma Sub, Inc. (incorporated
by reference to Exhibit 10.1 to the Form 8-K filed by the Company with the SEC on March 19, 2024) |
10.13 |
|
Security Agreement, dated March 19, 2024, by and
among AEON Biopharma, Inc., Daewoong Pharmaceutical Co., LTD. and AEON Biopharma Sub, Inc. (incorporated by reference
to Exhibit 10.2 to the Form 8-K filed by the Company with the SEC on March 19, 2024) |
10.14 |
|
Guaranty, dated March 19, 2024, by and between
Daewoong Pharmaceutical Co., LTD. and AEON Biopharma Sub, Inc. (incorporated by reference to Exhibit 10.3 to the Form 8-K
filed by the Company with the SEC on March 19, 2024) |
10.15 |
|
License and Supply Agreement, dated as of December 20,
2019, by and between Daewoong Pharmaceutical Co., LTD. and AEON Biopharma, Inc. (incorporated by reference to
Exhibit 10.15 to the Form S-4 filed by Priveterra Acquisition Corp. with the SEC on December 27, 2022) |
10.15(a) |
|
Amendment to License and Supply Agreement, dated as
of July 29, 2022, by and between Daewoong Pharmaceutical Co., LTD. and AEON Biopharma, Inc. (incorporated by reference
to Exhibit 10.15(a) to the Form S-4 filed by Priveterra Acquisition Corp. with the SEC on December 27, 2022) |
10.15(b) |
|
Second Amendment to the License and Supply Agreement,
dated as of January 8, 2023, by and between AEON Biopharma, Inc. and Daewoong Pharmaceutical Co., Ltd. (incorporated
by reference to Exhibit 10.17(b) to the Form S-1/A filed by the Company with the SEC on April 2, 2024) |
10.15(c) |
|
Third Amendment to License and Supply Agreement, dated
April 24, 2023, by and between Daewoong Pharmaceutical Co. (incorporated by reference to Exhibit 10.17(c) to the Form S-1/A
filed by the Company with the SEC on April 2, 2024) |
10.15(d) |
|
Fourth Amendment to License and Supply Agreement, dated
March 19, 2024, by and between AEON Biopharma, Inc. and Daewoong Pharmaceutical Co., LTD. (incorporated by reference
to Exhibit 10.4 to the Form 8-K filed by the Company with the SEC on March 19, 2024) |
10.16 |
|
Settlement and License Agreement dated as of June 21,
2021, by and between AEON Biopharma, Inc. and Medytox, Inc. (incorporated by reference to Exhibit 10.16 to the Form S-4
filed by Priveterra Acquisition Corp. with the SEC on December 27, 2022) |
10.16(a) |
|
Amendment to Settlement and License Agreement, dated
as of May 5, 2022, by and between AEON Biopharma, Inc. and Medytox, Inc. (incorporated by reference to Exhibit 10.16(a) to
the Form S-4 filed by Priveterra Acquisition Corp. with the SEC on December 27, 2022) |
10.17 |
|
Sponsor Support Agreement, dated
as of December 12, 2022, by and among Priveterra Sponsor, LLC, Priveterra Acquisition Corp., and the other parties thereto (incorporated
by reference to Exhibit 10.18 to the Form S-1/A filed by the Company with the SEC on November 24, 2023) |
10.17(a) |
|
Amendment No. 1 to Sponsor Support Agreement,
dated as of April 27, 2023, by and among Priveterra Sponsor, LLC, Priveterra Acquisition Corp., and the other parties thereto
(incorporated by reference to Exhibit 10.17 to the Form S-4/A filed by Priveterra Acquisition Corp. with the SEC on May 1,
2023) |
21.1† |
|
List
of Subsidiaries of AEON Biopharma, Inc. |
31.1† |
|
Certification
of Principal Executive and Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange
Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
32.1# |
|
Certification of Chief Executive Officer Pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (incorporated by reference
to Exhibit 32.1 to Amendment No. 1 to the Annual Report on Form 10-K/A filed by the Company with the SEC on May 14,
2024) |
32.2# |
|
Certification of Chief Financial Officer Pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (incorporated by reference
to Exhibit 32.2 to Amendment No. 1 to the Annual Report on Form 10-K/A filed by the Company with the SEC on May 14,
2024) |
97.1 |
|
AEON Biopharma, Inc. Policy for Recovery of Erroneously
Awarded Compensation (incorporated by reference to Exhibit 97 to the Annual Report on Form 10-K filed by the Company with
the SEC on March 29, 2024) |
101.INS† |
|
XBRL Instance Document – the instance document
does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document |
101.SCH† |
|
XBRL Taxonomy Extension Schema Document |
101.CAL† |
|
XBRL Taxonomy Extension Calculation Linkbase Document |
101.DEF† |
|
XBRL Taxonomy Extension Definition Linkbase Document |
101.LAB† |
|
XBRL Taxonomy Extension Label Linkbase Document |
101.PRE† |
|
XBRL Taxonomy Extension Presentation Linkbase Document |
104† |
|
Cover Page Interactive Data File (formatted in
Inline XBRL and contained in Exhibit 101) |
* | The annexes, schedules, and certain exhibits to this Exhibit have
been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby agrees
to furnish supplementally a copy of any omitted annex, schedule or exhibit to the SEC upon
request. |
+ | Indicates a management contract or compensatory plan. |
# | The certifications attached as Exhibit 32.1 and Exhibit 32.2
that accompany this Amendment No. 2 to the Annual Report on Form 10-K/A are not
deemed filed with the SEC and are not to be incorporated by reference into any filing of
AEON Biopharma, Inc. under the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, whether made before or after the date of this Form 10-K/A,
irrespective of any general incorporation language contained in such filing. |
SIGNATURES
Pursuant to the requirements of Section 13
or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
|
AEON Biopharma, Inc. |
|
|
|
Date:
August 12, 2024 |
By: |
/s/
March Forth |
|
|
Marc Forth |
|
|
President and Chief Executive Officer |
Exhibit 4.5
DESCRIPTION OF REGISTRANT’S SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
AEON Biopharma, Inc. (“AEON,”
“we,” “us,” or “our”) has one class of securities registered under Section 12 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”): our Class A common stock, $0.0001 par value per share (“common
stock”).
The following summary describes our common stock
and the material provisions of our third amended and restated certificate of incorporation (the “certificate of incorporation”)
and amended and restated bylaws (the “bylaws”) and of the Delaware General Corporation Law (the “DGCL”). Because
the following is only a summary, it does not contain all of the information that may be important to you. For a complete description,
you should refer to our certificate of incorporation and bylaws, filed as exhibits 3.1 and 3.2, respectively, to our Annual Report on
Form 10-K filed with the Securities Exchange Commission, of which this Exhibit 4.5 is a part. We encourage you to
read those documents and the DGCL carefully.
General
Our purpose is to engage in any lawful act or
activity for which corporations may be organized under the DGCL. The certificate of incorporation authorizes the issuance of 501,000,000
shares, consisting of 500,000,000 shares of Class A common stock, $0.0001 par value per share, and 1,000,000 shares of preferred
stock, $0.0001 par value (“preferred stock”). As of the date of this prospectus, no shares of preferred stock are issued
or outstanding. Unless our board of directors (the “Board”) determines otherwise, we will issue all shares of our capital
stock in uncertificated form.
Common Stock
Voting Power
Except as otherwise required by law or as otherwise
provided in any certificate of designation for any series of preferred stock, the holders of our common stock possess all voting power
for the election of directors and all other matters requiring stockholder action. Holders of common stock are entitled to one vote per
share on matters to be voted on by stockholders.
Dividends
Holders of common stock will be entitled to receive
such dividends, if any, as may be declared from time to time by our Board in accordance with applicable law. Any payment of cash dividends
in the future will be dependent upon our revenues and earnings, if any, capital requirements and general financial conditions.
Liquidation, Dissolution and Winding Up
In the event of AEON’s voluntary or involuntary
liquidation, dissolution or winding-up, the net assets of AEON will be distributed pro rata to the holders of our common stock,
subject to the rights of the holders of preferred stock, if any.
Preemptive or Other Rights
There are no sinking fund provisions applicable
to our common stock. Holders of shares of our common stock do not have subscription, redemption or conversion rights. All of the outstanding
shares of common stock will be validly issued, fully paid and non-assessable. Each holder of common stock is subject to, and may be adversely
affected by, the rights of the holders of any series of our preferred stock that we may designate and issue in the future.
Preferred Stock
The certificate of incorporation provides that
shares of preferred stock may be issued from time to time in one or more series. Our Board will be authorized to fix designations to
determine and fix the number of shares of such series and such powers, including voting powers, full or limited, or no voting powers,
and such designations, preferences and relative participating, optional or other special rights, and any qualifications, limitations
or restrictions thereof, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation
preferences, and to increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of
any series. Our Board will be able to, without stockholder approval, issue preferred stock with voting and other rights that could adversely
affect the voting power and other rights of the holders of our common stock, which could have anti-takeover effects. The ability of our
Board to issue preferred stock without stockholder approval could have the effect of delaying, deferring or preventing a change of control
of AEON or the removal of existing management. We have no preferred stock currently outstanding.
Exclusive Jurisdiction of Certain Actions
Our certificate of incorporation provide that,
unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State court of the State of Delaware
(or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other
state courts of the State of Delaware) will, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any
derivative action, suit or proceeding brought on our behalf; (ii) any action, suit or proceeding asserting a claim of breach of
a fiduciary duty owed by any of our current or former directors, officers or stockholders to us or our stockholders; (iii) any action,
suit or proceeding arising pursuant to any provision of the DGCL or our certificate of incorporation or bylaws (as either may be amended
from time to time); or (iv) any action, suit or proceeding asserting a claim against us governed by the internal affairs doctrine.
This exclusive forum provision will not apply to any causes of action arising under the Securities Act of 1933, as amended (the “Securities
Act”), or the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. Stockholders cannot waive
compliance with the Securities Act, the Exchange Act or any other federal securities laws or the rules and regulations thereunder.
Unless we consent in writing to the selection of an alternative forum, the United States federal district courts shall be the sole and
exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act. In addition, our certificate
of incorporation provides that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock is
deemed to have notice of and consented to these exclusive forum provisions. These forum selection provisions may limit our stockholders’
ability to litigate disputes with us in a judicial forum that they find favorable for disputes with us or our directors, officers or
employees, which may discourage the filing of lawsuits against us and our directors, officers and employees, even though an action, if
successful, might benefit our stockholders. In addition, these forum selection provisions may impose additional litigation costs for
stockholders who determine to pursue any such lawsuits against us.
Nothing in our certificate of incorporation or
bylaws precludes stockholders that bring suit to enforce any liability or duty under Exchange Act from bringing such claims in federal
court to the extent that the Exchange Act confers exclusive federal jurisdiction over such claims, subject to applicable law. Although
our certificate of incorporation contains the choice of forum provisions described above, it is possible that a court could find that
these provisions are inapplicable for a particular claim or action or that such provisions are unenforceable. For example, Section 22
of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability
created by the Securities Act or the rules and regulations thereunder. Accordingly, there is uncertainty as to whether a court would
enforce such forum selection provisions as written in connection with claims arising under the Securities Act.
Dissenters’ Rights of Appraisals and Payment
Under the DGCL, with certain exceptions, our
stockholders have appraisal rights in connection with a merger or consolidation of the Company. Pursuant to Section 262 of the DGCL,
stockholders who properly demand and perfect appraisal rights in connection with such merger or consolidation will have the right to
receive payment of the fair value of their shares as determined by the Delaware Court of Chancery.
Election of Directors and Vacancies
Subject to the rights of the holders of any series
of preferred stock to elect additional directors under specified circumstances and subject to the certificate of incorporation, the number
of directors of our Board shall be fixed from time to time by resolution duly adopted by the Board. The Board is divided into three classes,
designated Class I, II and III. Each class of directors will be elected by our stockholders upon the expiration of the applicable
class’s three-year term.
Under our bylaws, except as otherwise provided
by the certificate of incorporation, at all meetings of stockholders called for the election of directors, a plurality of the votes properly
cast will be sufficient to elect such directors to our Board. Except as the DGCL may otherwise require and subject to the rights, if
any, of the holders of any series of preferred stock, in the interim between annual meetings of stockholders or special meetings of stockholders
called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in connection therewith,
newly created directorships, death, resignation or disqualification, and any vacancies on our Board, including unfilled vacancies resulting
from the removal of directors, may be filled only by the affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum, or by a sole remaining director. All directors will hold office until the expiration of their respective terms
of office and until their successors will have been elected and qualified. Subject to the rights, if any, of any series of preferred
stock, any director may be removed from office only with cause and only by the affirmative vote of the holders of at least two-thirds
of the voting power of all of the then outstanding shares of our voting stock then entitled to vote at an election of directors. A director
elected or appointed to fill a vacancy resulting from the death, resignation or removal of a director or a newly created directorship
will serve for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred.
Notwithstanding the foregoing provisions, any
director elected pursuant to the right, if any, of the holders of preferred stock to elect additional directors under specified circumstances
will serve for such term or terms and pursuant to such other provisions as specified in the relevant certificate of designations related
to such preferred stock.
Quorum
The holders of a majority of the voting power
of the capital stock issued and outstanding and entitled to vote thereat, present in person, or by remote communication, if applicable,
or represented by proxy, will constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise
required by law or provided by the certificate of incorporation. A quorum, once established at a meeting, shall not be broken by the
withdrawal of enough votes to leave less than a quorum. If, however, such quorum will not be present or represented at any meeting of
the stockholders, then either (i) the person presiding over the meeting or (ii) the holders of a majority of the voting power
of the stockholders entitled to vote at the meeting, present in person, or by remote communication, if applicable, or represented by
proxy, will have power to recess the meeting, or to adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum will be present or represented. At such recessed or adjourned meeting at which a quorum will be present or
represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment
is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting will be given to each stockholder entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned
meeting.
Anti-Takeover Provisions
Certain provisions of our certificate of incorporation,
bylaws, and laws of the State of Delaware, where we are incorporated, may delay, discourage or make more difficult a takeover attempt
that a stockholder might consider in his, her or its best interest. These provisions may also adversely affect prevailing market prices
for the common stock. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate
takeover bids. We believe that the benefits of increased protection give us the potential ability to negotiate with the proponent of
an unsolicited proposal to acquire or restructure AEON and outweigh the disadvantage of discouraging those proposals because negotiation
of the proposals could result in an improvement of their terms. However, they also give our Board the power to discourage mergers that
some stockholders may favor.
Among other things, the certificate of incorporation
and bylaws (as amended from time to time):
| · | permit
the Board to issue shares of preferred stock, with any rights, preferences and privileges
as they may designate; |
| · | provide
that the number of directors of our Board may be changed only by resolution of our Board; |
| · | provide
that, subject to the rights of any series of preferred stock to elect directors, directors
may be removed only with cause by the holders of at least two-thirds of the voting power
of all of AEON’s then-outstanding shares of voting stock entitled to vote at an election
of directors; |
| · | provide
that all vacancies, subject to the rights of any series of preferred stock, including newly
created directorships, may, except as otherwise required by law, be filled exclusively by
the affirmative vote of a majority of directors then in office, even if less than a quorum; |
| · | provide
that stockholders seeking to present proposals before a meeting of stockholders or to nominate
candidates for election as directors at a meeting of stockholders must provide advance notice
in writing, and also specify requirements as to the form and content of a stockholder’s
notice; |
| · | provide
that, subject to the rights of any series of preferred stock, special meetings of our stockholders
may be called only by or at the direction of our Board, the chairperson of our Board, the
Chief Executive Officer, the President or the Secretary; |
| · | provide
that our Board will be divided into three classes of directors, with the directors serving
three-year terms, therefore making it more difficult for stockholders to change the composition
of the board of directors; and |
| · | not
provide for cumulative voting rights, therefore allowing the holders of a majority of the
shares of common stock entitled to vote in any election of directors to elect all of the
directors standing for election, if they should so choose. |
The combination of these provisions make it more
difficult for the existing stockholders to replace our Board as well as for another party to obtain control of AEON by replacing our
Board. Because our Board will have the power to retain and discharge its officers, these provisions could also make it more difficult
for existing stockholders or another party to effect a change in management. In addition, the authorization of undesignated preferred
stock will make it possible for our Board to issue preferred stock with voting or other rights or preferences that could impede the success
of any attempt to change the control of AEON.
These provisions are intended to enhance the
likelihood of continued stability in the composition of our Board and its policies and to discourage coercive takeover practices and
inadequate takeover bids. These provisions are also designed to reduce our vulnerability to hostile takeovers and to discourage certain
tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers
for our shares and may have the effect of delaying changes in our control or management. As a consequence, these provisions may also
inhibit fluctuations in the market price of our stock.
Certain Anti-Takeover Provisions of Delaware Law
We are subject to the provisions of Section 203
of the DGCL. This statute prevents certain Delaware corporations, under certain circumstances, from engaging in a “business combination”
with: a stockholder who owns 15% or more of the pertinent corporation’s outstanding voting stock (otherwise known as an “interested
stockholder”), or an affiliate or associate of the interested stockholder, for three years following the date that the stockholder
became an interested stockholder.
Per DGCL Section 203, “business combination”
includes, among other things, a merger or sale of more than 10% of a corporation’s assets. However, Section 203 would not
apply if:
| · | the
relevant board of directors approves either the business combination or the transaction that
made the stockholder an “interested stockholder” prior to the date of the business
combination or transaction, as applicable; |
| · | after
the completion of the transaction that resulted in the stockholder becoming an interested
stockholder, that stockholder owned at least 85% of the corporation’s voting stock
outstanding at the time the transaction commenced, other than statutorily excluded shares
of common stock; or |
| · | on
or subsequent to the date of the business combination, such business combination is approved
by our Board and authorized at an annual or special meeting of stockholders, and not by written
consent, by an affirmative vote of at least two-thirds of the outstanding voting stock not
owned by the interested stockholder. |
These provisions may have the effect of delaying,
deferring, or preventing changes in control of AEON.
Cumulative Voting
Under Delaware law, the right to vote cumulatively
does not exist unless the certificate of incorporation specifically authorizes cumulative voting. Our certificate of incorporation does
not authorize cumulative voting.
Limitations on Liability and Indemnification of Officers
The DGCL authorizes corporations to limit or
eliminate the personal liability of directors of corporations and their stockholders for monetary damages for breaches of directors’
fiduciary duties, subject to certain exceptions. Our certificate of incorporation provides that we will indemnify our officers and directors
to the fullest extent authorized or permitted by applicable law. We have entered into agreements to indemnify our directors, executive
officers and other employees as determined by the AEON. Under our bylaws, we are required to indemnify each of our directors and officers
if the basis of the indemnitee’s involvement was by reason of the fact that the indemnitee is or was a director or officer of ours
or was serving at our request as a director, officer, employee or agent for another entity. We must indemnify our officers and directors
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by the indemnitee in connection with such action, suit or proceeding if the indemnitee acted in good faith and in a manner the indemnitee
reasonably believed to be in or not opposed to the best interests of AEON, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe the indemnitee’s conduct was unlawful. Our bylaws also require us to advance expenses (including
attorneys’ fees) incurred by a director or officer in defending any civil, criminal, administrative or investigative action, suit
or proceeding, provided that such person undertakes to repay any such advance if it is ultimately determined that such person is not
entitled to indemnification by us. Any claims for indemnification by our directors and officers may reduce our available funds to satisfy
successful third-party claims against us and may reduce the amount of money available to us.
Corporate Opportunities
Our certificate of incorporation does not expressly
renounce the doctrine of corporate opportunity.
Stockholders’ Derivative Actions
Under the DGCL, any of our stockholders may bring
an action in our name to procure a judgment in our favor, also known as a derivative action, provided that the stockholder bringing the
action is a holder of our stock at the time of the transaction to which the action relates.
Transfer Agent and Registrar
The transfer agent for our capital stock is Continental
Stock Transfer & Trust Company.
Listing of Common Stock
Our common stock is listed on the NYSE American
under the symbol “AEON”.
Exhibit 21.1
SUBSIDIARY OF AEON BIOPHARMA, INC.
Name of
Subsidiary |
|
Jurisdiction
of Organization |
AEON
Biopharma Sub, Inc. |
|
Delaware |
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE AND FINANCIAL
OFFICER PURSUANT TO
RULES
13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I,
Marc Forth, certify that:
| 1. | I have reviewed this Amendment No. 2 to the Annual Report on
Form 10-K/A of AEON Biopharma, Inc.; and |
| 2. | Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were made, not misleading with
respect to the period covered by this report. |
Dated: August 12, 2024 |
By: |
/s/
Marc Forth |
|
|
Name: |
Marc Forth |
|
|
Title: |
Chief Executive Officer |
|
|
|
(Principal Executive and Financial Officer) |
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