What changed in this filing

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Item 2. Properties

2024-03-13 compared with 2023-03-08 · 29 added, 58 removed, 38 unchanged (70% of the section changed)

Our principal office is approximately 14,000 square feet of office, warehouse and assembly space in Rockaway, New Jersey pursuant to a lease that expires in 2024 (subject to our right to extend for an additional five years).

Our former principal office consisted of approximately 25,000 square feet of leased office space in Basking Ridge, NJ.

Since the spring of 2020, as a result of COVID-19, our employees previously based in Basking Ridge generally have conducted business remotely.

In the fourth quarter of 2020, we formally vacated the Basking Ridge, NJ facility and the lease to this facility was formally terminated in 2021.

Our principal office is approximately 22,557 square feet of office, warehouse and assembly space in Rockaway, New Jersey pursuant to a lease that expires in 2034 .

Since the spring of 2020 , most of our employees have conducted business remotely.

Management believes our facilities in Rockaway are currently suitable for their intended use.

1 unchanged sentence

Legal Proceeding s

On July 8, 2019, and August 1, 2019, purported stockholders of our company served putative class action lawsuits in the Superior Court of New Jersey for Somerset County, captioned Paul Kuehl vs.

electroCore, Inc.

, et al., Docket No.

SOM-L 000876-19 and Shirley Stone vs.

electroCore, Inc., et al., Docket No.

SOM-L 001007-19, respectively.

In addition to our company, the defendants include present and past directors and officers, Evercore Group L.L.C., Cantor Fitzgerald & Co., JMP Securities LLC and BTIG, LLC, the underwriters for our IPO;

and two of our stockholders.

On August 15, 2019, the Superior Court entered an order consolidating the Kuehl and Stone actions, which proceeded under Docket No.

SOM-L 000876-19.

Each plaintiff was appointed a co-lead plaintiff.

The plaintiffs filed a consolidated amended complaint, which sought certification of a class of stockholders who purchased our common stock in our IPO or whose purchases are traceable to that offering.

The consolidated amended complaint alleged that the defendants violated Sections 11, 12(a)(2) and 15 of the Securities Act with respect to the registration statement and related prospectus for the IPO.

The complaint sought unspecified compensatory damages, interest, costs and attorneys’ fees.

On October 31, 2019, the Company and the other defendants filed a motion to dismiss the complaint or in the alternative to stay the action in favor of the pending federal action (discussed below).

On February 21, 2020, the court granted the defendants’ motion to dismiss the consolidated amended complaint with prejudice.

On March 2, 2020, the court entered an amended order dismissing the consolidated amended complaint with prejudice.

On March 27, 2020, the plaintiffs filed a notice of appeal with the N.J.

Superior Court - Appellate Division.

The appeal was argued on September 27, 2021.

On October 8, 2021, the Appellate Division issued an order reversing the decision of the Superior Court.

The case has been remanded to the Superior Court for oral argument on the motion to dismiss.

On November 11, 2021, the defendants filed a supplemental motion to dismiss based on the forum selection clause in our certificate of incorporation's.

On December 10, 2021, the Superior Court heard argument of the original motion to dismiss and the supplemental motion to dismiss based on the federal forum selection clause.

On December 14, 2021, the Superior Court granted the supplemental motion to dismiss based on the federal forum selection clause with prejudice and granted the original motion to dismiss without prejudice.

On January 27, 2022, the plaintiffs filed a notice of appeal to the Appellate Division.

On April 15, 2022, the plaintiffs filed their appeal brief.

The brief of defendant-appellees was filed on May 16, 2022.

The appeal is fully briefed.

Oral argument is scheduled for April 19, 2023.

On September 26, 2019, and October 31, 2019, purported stockholders of our company served putative class action lawsuits in the United States District Court for the District of New Jersey captioned Allyn Turnofsky vs.

electroCore, Inc.

, et al., Case 3:19-cv-18400, and Priewe vs.

On September 26, 2019, and October 31, 2019, purported stockholders of the Company served putative class action lawsuits in the United States District Court for the District of New Jersey captioned Allyn Turnofsky vs.

electroCore, Inc ., et al., Case 3:19-cv-18400, and Priewe vs.

electroCore, Inc., et al., Case 1:19-cv-19653, respectively.

In addition to our company, the defendants include present and past directors and officers, and Evercore Group L.L.C., Cantor Fitzgerald & Co., JMP Securities LLC and BTIG, LLC, the underwriters for our IPO.

The plaintiffs each seek to represent a class of stockholders who (i) purchased our common stock in our IPO or whose purchases are traceable to the IPO, or (ii) who purchased common stock between the IPO and September 25, 2019.

In addition to the Company, the defendants include present and past directors and officers, and Evercore Group L.L.C., Cantor Fitzgerald & Co., JMP Securities LLC and BTIG, LLC, the underwriters for the IPO.

The plaintiffs each seek to represent a class of stockholders who (i) purchased the Company’s common stock in the IPO or whose purchases are traceable to the IPO, or (ii) who purchased common stock between the IPO and September 25, 2019.

The complaints each alleged that the defendants violated Sections 11 and 15 of the Securities Act and Sections 10(b) and 20(a) of the Exchange Act, with respect to (i) the registration statement and related prospectus for the IPO, and (ii) certain post-IPO disclosures filed with the SEC.

4 unchanged sentences

On July 17, 2020, the plaintiffs filed an amended complaint in Turnofsky.

In addition to the prior claims, the amended complaint adds an additional director defendant and two investors as defendants, adds a claim against the Company and the underwriters for violating Section 12(a)(2) of the Securities Act.

On September 15, 2020, the Company and the other defendants filed a motion to dismiss the amended complaint for failure to state a claim.

In addition to the prior claims, the amended complaint adds an additional director defendant and two investors as defendants, added a claim against us and the underwriters for violating Section 12 (a)( 2 ) of the Securities Act.

On September 15, 2020, we and the other defendants filed a motion to dismiss the amended complaint for failure to state a claim.

On November 6, 2020, the plaintiffs filed their opposition to the motion to dismiss.

2 unchanged sentences

On August 13, 2021, the Court dismissed the amended complaint with leave to re-plead.

On October 4, 2021, the plaintiffs filed a second amended complaint.

On November 17, 2021, the defendants moved to dismiss the new complaint.

Briefing on the motion was complete on January 7, 2022.

On July 5, 2022, the case was reassigned to Judge Zahid N.

Quraishi, who has ordered that he will consider the pending motion to dismiss in due course.

On October 4, 2021, the plaintiffs filed a second amended complaint in the Turnofsky case.

The defendants moved to dismiss, and briefing on the motion was complete on January 7, 2022.

On July 13, 2023, the court dismissed the second amended complaint with leave to re-plead.

The plaintiffs did not file a third amended complaint.

On August 23, 2023, the plaintiffs provided the court with an order of dismissal, and the court entered the order on August 24, 2023.

On September 8, 2023, plaintiff Carole Tibbs filed a notice of appeal to the United States Court of Appeals for the Third Circuit.

The appeal has been docketed as number 23-2655.

The principal brief of appellant and appendix were filed on January 5, 2024.

The appellees’ brief was filed on February 15, 2024, and appellant’s reply brief is due on or before March 15, 2024.

Argument of the motion has not yet been scheduled.

1 unchanged sentence

The action is captioned Richard Maltz , derivatively on behalf of electroCore, Inc., vs.

Amato, et al.

, Case 3:21-cv-04135.

Amato , et al., Case 3 :

21 -cv- 04135 .

The defendants include present and past directors and officers of the Company.

5 unchanged sentences

declaratory relief;

and an order requiring changes to corporate governance and internal procedures and a vote on proposed amendments to our bylaws and certificate of incorporation.

On March 8, 2021, purported stockholder Erin Yuson brought a purported stockholder derivative action in the United States District Court for the District of New Jersey.

and an order requiring changes to corporate governance and internal procedures and a vote on proposed amendments to the Bylaws and Certificate of Incorporation.

O n March 8, 2021, purported stockholder Erin Yuson brought a purported stockholder derivative action in the United States District Court for the District of New Jersey.

The action is captioned Erin Yuson, derivatively on behalf of electroCore, Inc., vs.

Amato, et al .

, Case 3:21-cv-04481.

21 -cv- 04481 .

The defendants include present and past directors and officers of the Company.

4 unchanged sentences

declaratory relief;

and an order requiring changes to corporate governance and internal procedures and a vote on proposed amendments to our bylaws and certificate of incorporation.

and an order requiring changes to corporate governance and internal procedures and a vote on proposed amendments to the Bylaws and Certificate of Incorporation.

The plaintiffs in the Maltz and Yuson derivative actions agreed to consolidate and stay those actions.

1 unchanged sentence

A stipulation to that effect was filed by the plaintiffs on April 14, 2021, and ordered by the court on April 30, 2021.

These cases also have been re-assigned to Judge Quraishi.

We intend to continue to vigorously defend ourselves in these matters.

However, in light of, among other things, the preliminary stage of these litigation matters, we are unable to determine the reasonable probability of loss or a range of potential loss.

Accordingly, we have not established an accrual for potential losses, if any, that could result from any unfavorable outcome, and there can be no assurance that these litigation matters will not result in substantial defense costs and/or judgments or settlements that could adversely affect our financial condition.

On June 9, 2023, the cases were administratively dismissed without prejudice.

We intend to continue to vigorously defend itself in these matters.

However, in light of, among other things, the preliminary stage of these litigation matters, the Company is unable to determine the reasonable probability of loss or a range of potential loss.

Accordingly, the Company has not established an accrual for potential losses, if any, that could result from any unfavorable outcome, and there can be no assurance that these litigation matters will not result in substantial defense costs and/or judgments or settlements that could adversely affect the Company’s financial condition.

We are subject to various claims, complaints and legal actions in the normal course of business from time to time.

We are not aware of any further currently pending litigation for which it believes the outcome could have a material adverse effect on its operations or financial position.

We expenses associated legal fees including those relating to the stockholder litigation described in Note 13 in the period they are incurred.

The Company is not aware of any further currently pending litigation for which it believes the outcome could have a material adverse effect on its operations or financial position.

The Company expenses associated legal fees including those relating to the stockholder litigation described in this Item 3 in the period they are incurred.

Mine Safety Disclosures

1 unchanged sentence

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 2. Properties