UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the
Securities
Exchange Act of 1934 (Amendment No.)
Filed
by the Registrant [X] Filed by a Party other than the Registrant [ ]
Check
the appropriate box:
[X]
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Preliminary
Proxy Statement
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[ ]
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Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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[ ]
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Definitive
Proxy Statement
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[ ]
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Definitive
Additional Materials
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[ ]
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Soliciting
Material Pursuant to §240.14a-12
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Digipath,
Inc.
(Name
of Registrant as Specified in Its Charter)
(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
[X]
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No
fee required.
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[ ]
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
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1)
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Title
of each class of securities to which transaction applies:
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2)
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Aggregate
number of securities to which transaction applies:
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3)
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Per
unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was determined):
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4)
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Proposed
maximum aggregate value of transaction:
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5)
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Total
fee paid:
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[ ]
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Fee
paid previously with preliminary materials.
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[ ]
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Check
box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date
of its filing.
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1)
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Amount
previously paid:
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2)
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Form,
Schedule or Registration Statement No.:
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3)
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Filing
Party:
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4)
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Date
Filed:
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DIGIPATH,
INC.
6450
Cameron Blvd., Suite 113
Las
Vegas, NV 89118
NOTICE
OF SPECIAL MEETING OF STOCKHOLDERS
To
Be Held on _____ __, 2019
To
Our Stockholders:
You
are cordially invited to attend a Special Meeting of Stockholders of Digipath, Inc. (the “Company”) to be held ______
__, 2019, at 10:00 a.m., Pacific Standard Time, at 6450 Cameron Blvd., Suite 113, Las Vegas, NV 89118, for the following purposes:
1.
To approve an amendment to the Company’s Articles of Incorporation increasing the number of authorized shares of common
stock from 90,000,000 shares to 250,000,000 shares; and
2.
To transact such other business as may properly come before the special meeting or any adjournment or postponement thereof.
Stockholders
of record at the close of business on April 1, 2019 are entitled to notice and to vote at the special meeting and any adjournment
or postponement of the meeting.
Whether
or not you plan to attend the special meeting, it is important that your shares be represented and voted at the meeting. Therefore,
I urge you to promptly vote and submit your proxy by phone, via the Internet, or by signing, dating and returning the enclosed
proxy card in the enclosed envelope. If you decide to attend the special meeting, you will be able to vote in person, even if
you have previously submitted your proxy.
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By
Order of the Board of Directors
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Todd
Denkin
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Chairman
of the Board and
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Chief
Executive Officer
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April
__, 2019
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DIGIPATH,
INC.
6450
Cameron Blvd., Suite 113
Las
Vegas, NV 89118
PROXY
STATEMENT
Special
Meeting of Stockholders to be held on _______ __, 2019
The
enclosed proxy is solicited on behalf of the Board of Directors of Digipath, Inc., a Nevada corporation (the “Company”),
for use at the special meeting of stockholders to be held on __________ __, 2019, at 10:00 a.m., Pacific Standard Time, or at
any adjournment or postponement of the meeting, for the purposes set forth in this proxy statement and in the accompanying Notice
of Special Meeting.
The
special meeting will be held at 6450 Cameron Blvd., Suite 113, Las Vegas, NV 89118.
The
Company intends to mail this proxy statement and accompanying proxy card on or about April __, 2019 to all stockholders entitled
to vote at the special meeting.
All
expenses incurred in connection with this solicitation will be paid by the Company.
Purposes
of the Special Meeting
The
special meeting has been called for the following purposes:
1.
To approve an amendment to the Company’s Articles of Incorporation increasing the number of authorized shares of common
stock from 90,000,000 shares to 250,000,000 shares;
2.
To transact such other business as may properly come before the special meeting or any adjournment or postponement thereof.
VOTING
PROCEDURES
How
You Can Vote
You
may vote your shares by proxy or in person using one of the following methods:
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Voting
by Internet. You may vote over the Internet using the directions on your proxy card by accessing the website address printed
on the card. The deadline for voting over the Internet is ______ __, 2019, at 11:59 p.m., Eastern Standard Time. If you received
a proxy card and vote over the Internet, you need not return your proxy card.
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Voting
by Proxy Card. You may vote by completing and returning your signed proxy card. To vote using your proxy card, please mark,
date and sign the card and return it by mail in the accompanying postage-paid envelope. You should mail your signed proxy
card sufficiently in advance for it to be received by ______ __, 2019. Alternatively, you may fax the proxy card to the fax
number set forth on the proxy card. The deadline for voting by fax is ______ __, 2019, at 11:59 p.m., Eastern Standard Time.
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Voting
by Telephone. If you hold your shares through a broker, bank or other nominee, you may vote using the directions on your proxy
card by calling the toll-free telephone number printed on the card. The deadline for voting by telephone is ______ __, 2019,
at 11:59 p.m., Eastern Standard Time. If you received a proxy card and vote by telephone, you need not return your proxy card.
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Voting
in Person. You may vote in person at the special meeting if you are the record owner of the shares to be voted. You can also
vote in person at the special meeting if you present a properly signed proxy that authorizes you to vote shares on behalf
of the record owner.
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Record
Date and Voting Rights
The
Board has fixed the close of business on April 1, 2019 as the record date for the determination of stockholders entitled to receive
notice of and to vote at the special meeting and any adjournment or postponement of the special meeting. As of the close of business
on April 1, 2019 the Company had outstanding [46,932,277] shares of common stock and [1,325,942] shares of Series A Preferred
Stock. The holders of our common stock are entitled to one vote per share and the holders of our Series A Preferred Stock are
entitled to five votes per share (which is the number of shares of common stock each share of Series A Preferred Stock is convertible
into) and vote with the holders of our common stock as a single group on all matters submitted to a vote of our holders of common
stock. The presence at the special meeting, in person or by proxy, of the holders of a majority of the shares entitled to vote
at the special meeting will constitute a quorum.
How
You Can Vote Shares Held by a Broker, Bank or Other Nominee
If
your shares are held in the name of a broker, bank or other nominee, you will receive instructions from the holder of record.
You must follow the instructions of the holder of record in order for your shares to be voted. If your shares are not registered
in your own name and you plan to vote your shares in person at the special meeting, you should contact your broker or agent to
obtain a legal proxy or broker’s proxy card and bring it to the special meeting in order to vote.
For
shares held in “street name” through a broker, bank or other nominee, the broker, bank or nominee may not be permitted
to exercise voting discretion with respect to the matters to be acted upon. Thus, if you do not give your broker, bank or nominee
specific instructions, your shares may not be voted on those matters and will not be counted in determining the number of shares
necessary for approval.
How
Your Proxy Will Be Voted
If
you vote by proxy, the proxy holders will vote your shares in the manner you indicate. You may specify whether your shares should
be voted for or against the proposed amendment to the Company’s Articles of Incorporation.
If
the proxy card is signed and returned, but voting directions are not made, the proxy will be voted in favor of the proposal set
forth in the accompanying “Notice of Special Meeting of Stockholders” and in such manner as the proxy holders named
on the enclosed proxy card in their discretion determine upon such other business as may properly come before the special meeting
or any adjournment or postponement thereof.
How
You Can Revoke Your Proxy and Change Your Vote
Any
proxy given pursuant to this solicitation may be revoked by the person giving it at any time before it is voted by:
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attending
the special meeting and voting in person;
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delivering
a written revocation to the Company’s Chief Executive Officer;
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timely
submitting another signed proxy card bearing a later date; or
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timely
voting by telephone or over the Internet as described above.
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Your
most current proxy card, telephone, or Internet proxy is the one that will be counted.
Vote
Required
Assuming
the existence of a quorum, the proposal to amend our Articles of Incorporation will be approved if the votes cast for approval
of the proposal constitutes a majority of the shares entitled to a vote on such proposal. Accordingly, abstentions and broker
non-votes will have the same effect as votes against such proposal.
PROPOSAL
NO. 1
AMENDMENT
TO THE COMPANY’S ARTICLES OF INCORPORATION TO INCREASE THE AUTHORIZED SHARES OF COMMON STOCK
Overview
The
Company’s board of directors has unanimously approved a proposal to amend its Articles of Incorporation to increase the
authorized shares of common stock of the Company from 90,000,000 shares to 250,000,000 shares, subject to stockholder approval.
The board has declared this amendment to be advisable and recommended that this proposal be presented to the Company’s stockholders
for approval. The text of the form of proposed amendment to the Company’s Articles of Incorporation to increase the authorized
shares of common stock of Company to 250,000,000 shares is attached to this proxy statement as Appendix A.
If
the Company’s stockholders approve this Proposal, the Company expects to promptly file a Certificate of Amendment to the
Company’s Articles of Incorporation with the Secretary of State of the State of Nevada to increase the number of authorized
shares of common stock. Upon filing, the Certificate of Amendment to the Company’s Articles of Incorporation will increase
the number of authorized shares of common stock from 90,000,000 to 250,000,000.
Reasons
for the Increase in Authorized Shares
As
of April __, 2019, the record date for the special meeting, the Company had [46,932,277] shares of common stock outstanding, [1,325,942]
shares of Series A Preferred Stock outstanding convertible into an aggregate of [6,629,710] shares of common stock, outstanding
options to purchase an aggregate of 9,360,000 shares of common stock, warrants to purchase an aggregate of [4,100,461] shares
of common stock, and convertible notes under which approximately [3,610,000] shares of common stock may be issued. Accordingly,
at present, the Company has a limited number of authorized shares of its common stock available for future issuances.
Although
the Company has no current commitments or agreements to issue additional shares of common stock, it desires to have additional
shares available to provide additional flexibility to use its capital stock for business and financial purposes in the future.
These purposes may include, among others:
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raising
capital;
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the
acquisition of other businesses;
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providing
equity incentives to employees, officers or directors; and
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establishing
strategic relationships with other companies.
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The
terms of additional shares of common stock will be identical to those of the currently outstanding shares of the Company’s
common stock. However, because holders of the Company’s common stock have no preemptive rights to purchase or subscribe
for any unissued stock of the Company, the issuance of any additional shares of common stock authorized as a result of the increase
in the number of authorized shares of common stock will reduce the current stockholders’ percentage of ownership interest
in the total outstanding shares of common stock.
Effects
of the Increase in Authorized Shares
The
proposed increase in the authorized number of shares of common stock could have a number of effects on the stockholders of the
Company depending upon the exact nature and circumstances of any actual issuances of authorized but unissued shares. The increase
could have an anti-takeover effect, in that additional shares could be issued (within the limits imposed by applicable law) in
one or more transactions that could make a change in control or takeover of the Company more difficult. For example, additional
shares could be issued by the Company so as to dilute the stock ownership or voting rights of persons seeking to obtain control
of the Company. Similarly, the issuance of additional shares to certain persons allied with the Company’ management could
have the effect of making it more difficult to remove the Company’ management by diluting the stock ownership or voting
rights of persons seeking to cause such removal.
The
proposed amendment to Company’s Articles of Incorporation to increase the number of authorized shares of common stock from
90,000,000 shares to 250,000,000 shares will be effective upon the filing of the Certificate of Amendment with the Secretary of
State of the State of Nevada. The Company expects to file the proposed Certificate of Amendment promptly following approval of
this Proposal.
Vote
Required; Recommendation of Company Board of Directors
Assuming
the existence of a quorum, this proposal will be approved if the number of shares voted in favor of this Proposal No. 1 constitutes
a majority of the shares entitled to a vote on the proposal. Accordingly, abstentions and broker non-votes will have the same
effect as votes against this proposal, but will be counted for determining the existence of a quorum.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” PROPOSAL NO. 1 TO AMEND THE ARTICLES OF INCORPORATION
INCREASING THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK TO 250,000,000.
OTHER
MATTERS
The
Board of Directors does not know of any other matters which will be presented at the special meeting. If any other matters are
properly brought before the special meeting, the proxy holders named on the enclosed proxy card will vote on such matter in accordance
with their best judgment.
Security
Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The
following table sets forth, as of April 1, 2019, certain information with regard to the record and beneficial ownership of the
Company’s common stock by (i) each person known to the Company to be the record or beneficial owner of 5% or more of the
Company’s common stock, (ii) each director of the Company, (iii) each of the named executive officers, and (iv) all executive
officers and directors of the Company as a group. The address of each of our directors and executive officers named in the table
is c/o Digipath, Inc., 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118:
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Series A
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Common
Stock
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Preferred
Stock
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Name
of Beneficial Owner
(1)
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Number
of
Shares
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%
of
Class
(2)
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Number
of
Shares
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%
of
Class
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Officers and Directors:
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Todd Denkin,
CEO and Chairman
(3)
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3,176,611
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6.4
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%
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-
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-
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Todd A. Peterson, CFO
(4)
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1,156,528
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2.5
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%
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-
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Dr. Cindy Orser, Director
(5)
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850,000
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1.8
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%
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-
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Bruce
Raben, Director
(6)
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450,000
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1.0
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%
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-
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Directors
and Officers as a Group (4 persons)
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5,633,139
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11.8
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%
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-
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5% Holders
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Estate
of Joseph Bianco
(7)
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5,457,852
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11.1
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%
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-
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-
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*
less than 1%
(1)
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Except
as indicated in the footnotes to this table and pursuant to applicable community property
laws, the persons named in the table have sole voting and investment power with respect
to all shares of Common Stock or Series A Preferred Stock owned by such person.
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(2)
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Percentage
of beneficial ownership is based upon [46,932,277] shares of Common Stock outstanding
as of April 1, 2019. For each named person, this percentage includes Common Stock that
the person has the right to acquire either currently or within 60 days of April 1, 2019,
including through the exercise of an option; however, such Common Stock is not deemed
outstanding for the purpose of computing the percentage owned by any other person.
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(3)
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Includes
options to purchase 3,000,000 shares of common stock exercisable at $0.13 per share.
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(4)
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Includes
options to purchase 100,000 shares of common stock exercisable at $0.13 per share.
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(5)
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Includes
options to purchase 550,000 shares of common stock exercisable at $0.13 per share.
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(6)
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Includes
options to purchase 250,000 shares of common stock exercisable at $0.13 per share.
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(7)
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Includes
options to purchase 4,750,000 shares of common stock exercisable at $0.20 per share.
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SUBMISSION
OF STOCKHOLDER PROPOSALS
Pursuant
to Rules 14a-4 and 14a-5(e) under the Exchange Act, to be included in the proxy statement for our next Annual Meeting of Stockholders,
stockholder proposals must be received by us at our principal executive office a reasonable time before we begin to print and
send proxy materials for such meeting.
DELIVERY
OF DOCUMENTS TO STOCKHOLDERS SHARING AN ADDRESS
Stockholders
who share a single address will receive only one proxy statement at that address unless we have received instructions to the contrary
from any stockholder at that address. This practice, known as “householding,” is designed to reduce our printing and
postage costs. However, if a stockholder of record residing at such an address wishes to receive a separate copy of this proxy
statement or of future proxy statements, he or she may contact Todd Denkin, our Chief Executive Officer, or Todd Peterson, our
Chief Financial Officer, Digipath, Inc., 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118 (telephone number (702) 527-2060).
We will deliver separate copies of this proxy statement promptly upon written or oral request. If you are a stockholder of record
receiving multiple copies of this proxy statement, you can request householding by contacting us in the same manner. If you own
your shares of our common stock through a bank, broker or other stockholder of record, you can request additional copies of this
proxy statement or request householding by contacting the stockholder of record.
ADDITIONAL
INFORMATION
Additional
information concerning the Company, including its annual report on Form 10-K, quarterly reports on Form 10-Q, and current reports
on Form 8-K, which have been filed with the Securities and Exchange Commission, may be accessed through the EDGAR archives at
www.sec.gov.
EXPENSES
The
Company will pay all expenses incurred in connection with this solicitation, including postage, printing, handling and the actual
expenses incurred by custodians, nominees and fiduciaries in forwarding proxy materials to beneficial owners. In addition to solicitation
by mail, certain of the Company’s officers, directors and regular employees, who will receive no additional compensation
for their services, may solicit proxies by telephone, personal communication or other means. The Company will also reimburse brokerage
firms and other persons representing beneficial owners of shares for reasonable expenses incurred in forwarding proxy soliciting
materials to the beneficial owners.
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