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21, 2021 The 12th2nd Floor13, 2019Monday,Friday, May 13, 201921, 2021, at 8:00 a.m., local time, at Paul Hastings LLP, located at 200 Park Avenue, New York, New York 10166,Eastern Time, for the following purposes:(1) To elect onetwo Class I director,II directors, nominated by our Board of Directors, to serve until our 2022 Annual Meeting2024 annual meeting of Stockholdersstockholders and until his successor istheir successors are duly elected and qualified;(2) (2)2019;2021;(3) (3)To approve the reincorporation of the Company from the State of Nevada to the State of Delaware;(4) To conduct an advisory (non-binding) vote on executive compensation; (4)(5)To conductapprove an advisory (non-binding) vote onamendment to the frequencyCompany’s Amended and Restated Articles of holding future advisory votes on executive compensation;Incorporation to increase the number of authorized shares of common stock to a total of 240,000,000; and(5)(6)To transact such other business as may properly come before the Annual Meeting or any adjournment(s) thereof. record dateRecord Date for the Annual Meeting is April 5, 2019.March 23, 2021. Only stockholders of record at the close of business on that date may vote at the meeting or any adjournment(s) or postponement(s) thereof. The accompanying Proxy Statement more fully describes the details of the business to be conducted at the Annual Meeting. Our proxy materials (which include the Proxy Statement attached to this notice, our most recent Annual Report on Form 10-K and form of proxy card) are also available to you via the Internet at www.proxyvote.com. 20192021IN PERSON IF YOU ATTENDYOUR SHARES ELECTRONICALLY DURING THE MEETING.
This year’s Annual Meeting will be conducted solely online via live webcast. You will be able to attend and participate in the Annual Meeting online, vote your shares electronically and submit your questions prior to and during the meeting by visiting www.virtualshareholdermeeting.com/SEEL2021 on Friday, May 21, 2021, at 8:00 a.m., Eastern time. To be admitted to the Annual Meeting at www.virtualshareholdermeeting.com/SEEL2021, you must enter the control number included in your proxy materials. There is no physical location for the Annual Meeting. We recommend you log in at least 15 minutes before the meeting to ensure you are logged in when the meeting starts. Further instructions on how to attend and participate online are available at www.virtualshareholdermeeting.com/SEEL2021.
$9,500.
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We urge any stockholder not planning to attend the Annual Meeting to vote their proxy in advance, whether via the Internet (www.proxyvote.com) or by telephone (1-800-690-6903) or by mailing an executed proxy card to us. The deadline to vote by Internet or by telephone is 11:59 P.M. Eastern Time on Friday,Thursday, May 10, 2019.
20, 2021.
Meeting and voting shares electronically during the meeting.
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II DIRECTORS
Bylaws (the “Bylaws”).
Name | Year Initially Elected | Age | Position(s) | Expiration of Term | Class |
Daniel J. O’Connor, J.D.(1)(2) | 2019 | 54 | Director | 2019 | I |
Dr. Robin L. Smith(1)(3) | 2019 | 54 | Director | 2020 | III |
Richard W. Pascoe | 2013 | 55 | Director | 2020 | III |
Raj Mehra, Ph.D. | 2019 | 59 | Chairman, Chief Executive Officer, President and Interim Chief Financial Officer | 2021 | II |
Brian Lian, Ph.D.(1)(2)(3) | 2019 | 53 | Director | 2021 | II |
Name | | | Year Initially Elected | | | Age | | | Position(s) | | | Expiration of Term | | | Class |
Raj Mehra, Ph.D. | | | 2019 | | | 61 | | | Chairman, Chief Executive Officer, President and Interim Chief Financial Officer | | | 2021 | | | II |
Brian Lian, Ph.D.(1)(2)(3) | | | 2019 | | | 55 | | | Director | | | 2021 | | | II |
Daniel J. O’Connor, J.D.(1)(3) | | | 2019 | | | 56 | | | Director | | | 2022 | | | I |
Richard W. Pascoe | | | 2013 | | | 57 | | | Director | | | 2023 | | | III |
Judith Dunn, Ph.D.(1)(2) | | | 2020 | | | 58 | | | Director | | | 2023 | | | III |
(1) | Member of the Audit |
(2) | Member of the Corporate Governance/Nominating Committee. |
(3) | Member of the Compensation |
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Daniel J. O'Connor, J.D. has been a director since January 2019. He is the Chair of our Audit Committee and a member of our Corporate Governance/Nominating Committee. He is currently Chief Executive Officer and a director of OncoSec Medical Incorporated. Prior to that, Mr. O'Connor served as President, Chief Executive Officer, Director and in other senior roles at Advaxis, Inc., a cancer immunotherapy company, from January 2013 until his resignation in July 2017. Prior to that, Mr. O'Connor was Senior Vice President and General Counsel for BRACCO Diagnostics Inc., a diagnostic imaging company, from 2008 until 2012; Senior Vice President, General Counsel and Secretary for ImClone Systems Incorporated, a biopharmaceutical company, from 2002 until 2008; and General Counsel at PharmaNet (now inVentiv Health Clinical), a clinical research company, from 1998 until 2001. Mr. O'Connor is a 1995 graduate of the Pennsylvania State University's Dickinson School of Law in Carlisle, Pennsylvania and currently serves as an Entrepreneur Trusted Advisor to its Dean. He graduated from the United States Marines Corps Officer Candidate School in 1988 and was commissioned as an officer in the U.S. Marines, attaining the rank of Captain while serving in Saudi Arabia during Operation Desert Shield. Mr. O'Connor is currently the Vice Chairman of the Board of the Trustees of BioNJ. In October 2017, Mr. O'Connor was appointed to the New Jersey Biotechnology Task Force by its Governor, and he was formerly a New Jersey criminal prosecutor. The Board believes Mr. O’Connor is qualified to serve as a director based on the depth and diversity of his experience in senior management of pharmaceutical companies.
Class III Directors Continuing in Office until 2020
The following directors will continue in office until the 2020 annual meeting of stockholders, or until their earlier resignation or removal in accordance with our Bylaws:
Dr. Robin L. Smith has been a director since January 2019. She is a member of our Audit Committee and our Compensation Committee. Dr. Smith is a global thought leader in the regenerative medicine industry, one of the fastest growing segments of modern-day medicine. She received her M.D. from Yale University and an M.B.A. from the Wharton School of Business. She served as CEO of Caladrius Biosciences, Inc. (formerly NeoStem Inc.) (Nasdaq: CLBS), from 2006 to 2015. In 2007, Dr. Smith founded The Stem for Life Foundation (SFLF), a nonpartisan, 501(c)(3) educational organization devoted to fostering global awareness of the potential for regenerative medicine to treat and cure a range of deadly diseases and debilitating medical conditions, as opposed to merely treating their symptoms, and has served as Chairman of the Board and President of the Stem for Life Foundation since its inception and now the expanded Cura Foundation. Dr. Smith was appointed as Clinical Associate Professor, Department of Medicine at the Rutgers, New Jersey Medical School in 2017. In addition, Dr. Smith has extensive experience serving in executive and board level capacities for various medical enterprises and healthcare- based entities. She has served on the Board of Directors of Rockwell Medical (Nasdaq: RMTI) since June 2016 and ProLung Inc. since February 2017, and has been Chairman of the Board of Mynd Analytics (Nasdaq: MYND) since August 2015. She has been co-chairman of the Life Sci advisory board on gender diversity since April 2016. She has been Vice President and a member of the Board of Directors of the Science and Faith STOQ Foundation in Rome since 2015 and has served on Sanford Health's International Board since 2016 and the Board of Overseers at the NYU Langone Medical Center in New York since 2014. She served on the Board of Trustees of the NYU Langone Medical Center from 2006 to 2014, was Chairman of the Board of Directors for the New York University Hospital for Joint Diseases from 2004 to 2010 and was on the board of directors of Signal Genetics, Inc. (Nasdaq: SGNL) from July 2014 to February 2016 and BioXcel Corporation from August 2015 to June 2017. The Board believes Dr. Smith is qualified to serve as a director based on her scientific background and ability to contribute to the Board’s understanding of technical matters relating to the Company’s business, as well as Dr. Smith’s broader business development and corporate experience.
Richard W. Pascoe has been a director since March 2013. He has served as the Chairman and Chief Executive Officer of Histogen Inc., a private regenerative medicine company, since January 2019. He previously served as our Chief Executive Officer from March 2013 to January 2019, our Secretary from February 2015 to January 2019, and our Principal Financial Officer and Principal Accounting Officer from December 2016 to January 2019. He joined the Company following the merger of Somaxon Pharmaceuticals, Inc. with Pernix Therapeutics Holdings, Inc. Mr. Pascoe was the Chief Executive Officer of Somaxon from August 2008 until joining the Company and was responsible for the FDA approval of Somaxon's lead drug Silenor®. Prior to
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Somaxon, Mr. Pascoe was with ARIAD Pharmaceuticals, Inc., a specialty pharmaceutical company where he was most recently Senior Vice President and Chief Operating Officer. Prior to joining ARIAD in 2005, Mr. Pascoe held a series of senior management roles at King Pharmaceuticals, Inc. (acquired by Pfizer Inc.), including Senior Vice President positions in both marketing and sales, as well as Vice President positions in both international sales and marketing and hospital sales. Prior to King, Mr. Pascoe was in the commercial groups at Medco Research, Inc. (acquired by King), COR Therapeutics, Inc. (acquired by Millennium Pharmaceuticals Inc., the Takeda Oncology Company), B. Braun Interventional and The BOC Group. Mr. Pascoe is a member of the board of directors of KemPharm, Inc., as well as a member of the company's audit and compensation committees and its lead independent director. He serves as a member of the board of directors of the Johnny Mac Soldiers Fund, a charity for military veterans. Mr. Pascoe is also a member of the board of directors of BIOCOM, as well as its Vice-President of Industry. Mr. Pascoe served as a Commissioned Officer with the U.S. Army 24th Infantry Division and continues to serve as a Civilian Aid to the Secretary of the Army. He is a graduate of the United States Military Academy at West Point where he received a B.S. degree in Leadership. The Board believes Mr. Pascoe is qualified to serve as a director based on the depth and diversity of his experience in senior management of public pharmaceutical companies.
Class II Directors Continuing in Office until 2021
The following directors will continue in office until the 2021 annual meeting of stockholders, or until their earlier resignation or removal in accordance with our Bylaws:
Dr. Raj Mehra has been our President, Chief Executive Officer, Interim Chief Financial Officer and Chairman of the Board of Directors since January 2019. Prior to founding Seelos, Dr. Mehra spent nine years at Auriga USA, LLC as a Managing Director focused on private and public equity investments in global healthcare companies. Prior to Auriga, Dr. Mehra was the sector head for healthcare equity investments at Bennett Lawrence Management, LLC in New York. He also founded and managed a long-short equity hedge fund at Weiss, Peck & Greer LLC. Dr. Mehra started his career as an investment professional at Cowen Asset Management, LLC. Dr. Mehra holds M.S., M.Phil., Ph.D., JD and MBA degrees from Columbia University in New York. He is also a graduate of Indian Institute of Technology, Kanpur, where he was ranked first in his class. The Board believes Dr. Mehra is qualified to serve as our chairman based on his experience in the healthcare industry, including his significant business knowledge based on his experience with healthcare-based investment banking.
Dr.
Members
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Governance/Nominating Committee will then consider the offer of resignation and other relevant circumstances and recommend a course of action to the Board. The disinterested members of the Board will then determine whether to accept the offer of resignation.
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2018 | 2017 | |||||
Audit Fees(1) | $ | 394,789 | $ | 349,284 | ||
Tax Fees(2) | 21,500 | 101,300 | ||||
Total All Fees | $ | 416,289 | $ | 450,584 |
| | 2020 | | | 2019 | |
Audit Fees(1) | | | $509,000 | | | $414,200 |
Audit Related Fees | | | — | | | — |
Tax Fees(2) | | | 15,500 | | | — |
All Other Fees | | | — | | | — |
Total All Fees | | | $524,500 | | | $414,200 |
(1) | Audit fees consist of estimated fees for professional services |
(2) | Consists of fees billed for tax compliance and consulting. |
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Pre-Approval Policies and Procedures
2019.
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• | The resulting Delaware corporation (“Seelos-Delaware”) will be the same entity as the Company as currently incorporated in Nevada (“Seelos-Nevada”) and will continue with all of the rights, privileges and powers of Seelos-Nevada, will possess all of the properties of Seelos-Nevada, will continue with all of the debts, liabilities and obligations of Seelos-Nevada and will continue with the same officers and directors of Seelos-Nevada immediately prior to the Reincorporation, as more fully described below. |
• | When the Reincorporation becomes effective, all of our issued and outstanding shares of capital stock will be automatically converted into issued and outstanding shares of capital stock of Seelos-Delaware, without any action on the part of our stockholders. The Reincorporation will have no effect on the trading of our shares of Common Stock on the Nasdaq Capital Market under the symbol “SEEL”. Seelos-Delaware will continue to file periodic reports and other documents as and to the extent required by the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”). Shares of our capital stock that are freely tradeable prior to the Reincorporation will continue to be freely tradeable as shares of Seelos-Delaware capital stock, and shares of our capital stock that are subject to restrictions prior to the Reincorporation will continue to be subject to the same restrictions as shares of Seelos-Delaware capital stock. The Reincorporation will not change the respective positions of the Company or our stockholders under federal securities laws. Pursuant to the Reincorporation, Seelos-Delaware will have or assume all of Seelos-Nevada’s obligations related to convertible or exchangeable securities, including warrants, and other rights to purchase or receive Seelos-Nevada common stock, which shall become the right to purchase or receive the same number of shares of Seelos-Delaware common stock. |
• | the Court of Chancery of the State of Delaware (the “Court of Chancery”), which has exclusive jurisdiction over matters relating to the DGCL and in which cases are heard by judges, without juries, who have many years of experience with corporate issues, which can lead to quick and effective resolution of corporate litigation; and the Delaware Supreme Court, which is highly regarded; and |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
Amendment of Charter Documents | | | Nevada law requires the adoption of a resolution by the corporation’s board of directors followed by the affirmative vote of the majority of the voting power of the corporation to approve any amendment to the articles of incorporation. If any proposed amendment would adversely alter or change any preference or any relative or other right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition to the affirmative vote otherwise required, of the holders of shares representing a majority of the voting power of each class or series adversely affected by the amendment. NRS 78.390. | | | Delaware law requires the adoption of a resolution by the corporation’s board of directors followed by the affirmative vote of the majority of shares present in person or represented by proxy and entitled to vote to approve any amendment to the certificate of incorporation, unless a greater percentage vote is required by the certificate of incorporation. Where a separate vote by class or series is required, the affirmative vote of a majority of the shares of such class or series is required unless the certificate of incorporation requires a greater percentage vote. Further, Delaware law states that if an amendment would (i) increase or decrease the aggregate number of authorized shares of a class, (ii) increase or decrease the par value of shares of a class, or (iii) alter or change the powers, preferences or special rights of a particular class or series of stock so as to affect them adversely, the class or series so affected shall be given the power to vote as a class notwithstanding the absence of any specifically enumerated power in the certificate of incorporation. DGCL Section 242. |
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| | The Nevada Articles of Incorporation provide that the affirmative vote of the holders of at least 66-2/3% of the voting power of the shares entitled to vote thereon shall be required to amend or repeal Articles Fourth, Sixth, Seventh or Eighth of the Nevada Articles of Incorporation. | | | The Delaware Certificate of Incorporation provides that the affirmative vote of the holders of at least two-thirds in voting power of the outstanding shares of capital stock of Seelos-Delaware entitled to vote thereon shall be required to amend or repeal, or to adopt any provision inconsistent with Articles Sixth, Eighth, Ninth, Tenth or Eleventh of the Delaware Certificate of Incorporation. | |
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Amendment of Bylaws | | | Nevada law provides that, unless otherwise prohibited by any bylaw adopted by the stockholders, the directors may adopt, amend or repeal any bylaw, including any bylaw adopted by the stockholders. The articles of incorporation may grant the authority to adopt, amend or repeal bylaws exclusively to the directors. NRS 78.120. | | | The power to adopt, amend or repeal the bylaws of a corporation shall be vested in the stockholders entitled to vote, provided that the corporation in its certificate of incorporation may confer such power on the board of directors, although the power vested in the stockholders is not divested or limited where the board of directors also has such power. DGCL Section 109. |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
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| | The Nevada Articles of Incorporation and Nevada Bylaws are consistent with the NRS. In addition, the Nevada Articles of Incorporation and the Nevada Bylaws state that any amendment or repeal of the Nevada Bylaws, and any adoption of new bylaws, by stockholders requires the affirmative vote of a majority of the outstanding voting power of the Company, voting together as a single class. | | | The Delaware Certificate of Incorporation expressly authorizes the Board to adopt, amend, alter or repeal the Delaware Bylaws. The Delaware Certificate of Incorporation and the Delaware Bylaws also provide that the affirmative vote of the holders of at least two thirds in voting power of the outstanding shares of capital stock entitled to vote thereon shall be required to adopt, amend, alter or repeal the Delaware Bylaws. | |
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Number of Authorized Directors | | | A corporation must have at least one director, and may provide in its articles of incorporation or in its bylaws for a fixed number of directors or a variable number of directors, and for the manner in which the number of directors may be increased or decreased. Unless otherwise provided in the articles of incorporation, directors need not be stockholders. NRS 78.115. | | | The board of directors of a corporation shall consist of 1 or more members, each of whom shall be a natural person. The number of directors shall be fixed by, or in the manner provided in, the bylaws, unless the certificate of incorporation fixes the number of directors, in which case a change in the number of directors shall be made only by amendment of the certificate. DGCL Section 141. |
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| | The Nevada Articles of Incorporation provide that the number of directors may be increased or decreased from time to time by resolution of the Board, but the number of directors shall not be reduced to less than three (3). The Nevada Bylaws provide that the Board shall consist of at least three (3), but no more than nine (9) individuals. | | | The Delaware Certificate of Incorporation (which does not fix the number of directors) and the Delaware Bylaws do not change this statutory rule. | |
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Filling Vacancies on the Board of Directors | | | All vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors, though less than a quorum, unless it is otherwise provided in the articles of incorporation. Unless otherwise provided in the articles of incorporation, pursuant to a resignation by a director, the board may fill the vacancy or vacancies with each director so appointed to hold office during the remainder of the term of office of the resigning director or directors. NRS 78.335. | | | All vacancies on the board of directors of a Delaware corporation may be filled by a majority of the remaining directors, though less than a quorum, or by a sole remaining director unless the certificate of incorporation provides otherwise. Unless otherwise provided in the certificate of incorporation, the board may fill the vacancies for the remainder of the term of office of any resigning director or directors. Further, if, at the time of filling any vacancy, the directors then in office shall constitute less than a majority of the whole board, the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10% of the voting stock at the time outstanding having the right to vote for such directors, |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | | | summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. DGCL Section 223. | ||
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| | The Nevada Articles of Incorporation provide that newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board resulting from death, resignation, retirement, disqualification, removal from office or other cause shall, unless otherwise provided by law or resolution of the Board, be filled only by a majority of the directors then in office, though less than a quorum. The Nevada Articles of Incorporation further provide that directors appointed by the Board to fill a vacancy shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class to which the director has been appointed expires. | | | The Delaware Certificate of Incorporation is consistent with the DGCL and is substantially similar to the Nevada Articles of Incorporation. However, as noted, we believe that the DGCL provides greater protection to the Company’s stockholders by permitting stockholders representing at least 10% of the issued and outstanding shares to apply to the Court of Chancery to have an election of directors in the situation where the directors in office constitute less than a majority of the whole board of directors. | |
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Removal of Directors | | | Any one or all of the directors of a corporation may be removed by the holders of not less than two-thirds of the voting power of a corporation’s issued and outstanding stock, which voting standard may be increased above two-thirds in the articles of incorporation, but not reduced below two-thirds. Nevada law does not distinguish between removal of directors with or without cause. NRS 78.335. | | | Any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except as follows: (a) unless the certificate of incorporation otherwise provides, in the case of a corporation whose board is classified as provided in DGCL Section 141(d), stockholders may effect such removal only for cause; or (b) in the case of a corporation having cumulative voting, if less than the entire board is to be removed, no director may be removed without cause if the votes cast against such director’s removal would be sufficient to elect such director if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which such director is a part. DGCL Section 141. |
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| | The Nevada Articles of Incorporation are consistent with the NRS and provide that any one or all of the directors may be removed from office at any time, but only for cause and only by the affirmative vote | | | The Delaware Certificate of Incorporation provides that directors of Seelos-Delaware may be removed, but only for cause and only by the affirmative vote of the holders of at least two-thirds in voting power of |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | of the holders of at least 66-2/3% of the voting power of all of the then-outstanding shares of capital stock of the Company entitled to vote generally in the election of directors. The Nevada Bylaws are consistent with the NRS in providing that removal of a director requires the vote or written consent of stockholders representing not less than two-thirds of the voting power of the issued and outstanding shares entitled to vote. | | | the outstanding shares of capital stock of the Company entitled to vote at an election of directors. | |
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Board Action by Written Consent | | | Nevada law provides that, unless the articles of incorporation or bylaws provide otherwise, any action required or permitted to be taken at a meeting of the board of directors or of a committee thereof may be taken without a meeting if, before or after the action, a written consent thereto is signed by all the members of the board or committee. NRS 78.315 | | | Delaware law provides that, unless the certificate of incorporation or bylaws provide otherwise, any action required or permitted to be taken at a meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or committee consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board or committee. DGCL Section 141. |
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| | The Nevada Bylaws are consistent with the NRS. | | | The Delaware Bylaws are consistent with the DGCL and are substantially similar to the Nevada Bylaws in regard to board and committee action by written consent. | |
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Interested Party Transaction | | | Nevada law provides that no contract or transaction between a corporation and one or more of its directors or officers, or between a corporation and any other entity of which one or more of its directors or officers are directors or officers, or in which one or more of its directors or officers have a financial interest, is void or voidable if one of the following circumstances exists: (a) the director’s or officer’s interest in the contract or transaction is known to the board of directors, and the transaction is approved or ratified by the board of directors in good faith by a vote sufficient for the purpose (without counting the vote of the interested director or officer); (b) the director’s or officer’s interest in the contract or transaction is known to the stockholders, | | | Delaware law provides that no contract or transaction between a corporation and one or more of its directors or officers, or between a corporation and any other corporation, partnership, association or other entity in which one or more of its directors or officers are directors or officers, or in which one or more of its directors or officers have a financial interest, shall be void or voidable if (a) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or known to the board of directors or a committee thereof, which authorizes the contract or transaction in good faith by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors are less than a |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | and the transaction is approved or ratified by a majority of the stockholders holding a majority of voting power (and the votes of the common or interested directors or officers must be counted); (c) the fact of the common interest is not known to the director or officer at the time the transaction is brought before the board of directors; or (d) the contract or transaction is fair to the corporation at the time it is authorized or approved. NRS 78.140. | | | quorum, (b) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or known to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by the stockholders, or (c) the contract or transaction is fair to the corporation as of the time it is authorized, approved or ratified by the board of directors, a committee thereof or the stockholders. DGCL Section 144. | |
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| | | | Nevada and Delaware law have similar statutes, but Delaware law will not provide additional provisions regarding a conflict of interest that was not known to a director or officer at the time the transaction is brought before the board of directors. | ||
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Stockholder Voting - Quorum | | | Unless the NRS, the articles of incorporation or bylaws otherwise provide for different proportions: (a) a majority of the voting power, present in person or by proxy at a meeting of stockholders (regardless of whether the proxy has authority to vote on any matter), constitutes a quorum for the transaction of business; and (b) action by the stockholders on a matter other than the election of directors is approved if the number of votes cast in favor of the action exceeds the number of votes cast in opposition to the action. NRS 78.320. Unless elected by written consent of the stockholders, or unless the articles of incorporation or the bylaws require more than a plurality of the votes cast, directors must be elected at the annual meeting of the stockholders by a plurality of the votes cast at the election. NRS 78.330. | | | The certificate of incorporation or bylaws may specify the number of shares and/or the amount of other securities having voting power the holders of which shall be present or represented by proxy at any meeting in order to constitute a quorum for, and the votes that shall be necessary for, the transaction of any business, but in no event shall a quorum consist of less than 1/3 of the shares entitled to vote at the meeting, except that, where a separate vote by a class or series or classes or series is required, a quorum shall consist of no less than 1/3 of the shares of such class or series or classes or series. In the absence of such specification in the certificate of incorporation or bylaws: (a) a majority of the shares entitled to vote, present in person or represented by proxy, shall constitute a quorum at a meeting of stockholders; (b) in all matters other than the election of directors, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders; (c) directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors; and (d) where a separate vote by a class or series or classes or series is required, a |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | | | majority of the outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and, in all matters other than the election of directors, the affirmative vote of the majority of shares of such class or series or classes or series present in person or represented by proxy at the meeting shall be the act of such class or series or classes or series. A bylaw amendment adopted by stockholders which specifies the votes that shall be necessary for the election of directors shall not be further amended or repealed by the board of directors. DGCL Section 216. | ||
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| | The Nevada Bylaws are consistent with the NRS. | | | Consistent with the DGCL, the Delaware Bylaws state that the holders of a majority in voting power of the capital stock issued and outstanding and entitled to vote, present in person, or by remote communication, if applicable, or represented by proxy, shall constitute a quorum for the transaction of business. The Delaware Bylaws and Nevada Bylaws are substantially similar with respect to quorum requirements. | |
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Duration of Proxies | | | A proxy is effective only for a period of six months from the date of its creation, unless it otherwise provided by the stockholder in the proxy, which stated duration may not exceed seven years. A proxy shall be deemed irrevocable if the written authorization states that the proxy is irrevocable, but is irrevocable only for as long as it is coupled with an interest sufficient in law to support an irrevocable power. NRS 78.355. | | | A proxy executed by a stockholder will remain valid for a period of three years, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. DGCL Section 212. |
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| | The Nevada Bylaws do not change this statutory rule. | | | The Delaware Bylaws do not change this statutory rule. The statutory default under the DGCL provides that proxies remain valid for a longer duration than the statutory default under the NRS. | |
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Stockholder Vote for Mergers and | | | Under Nevada law, approval by the board of directors and a majority of outstanding | | | Under Delaware law, a majority of outstanding shares entitled to vote, as well |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
Other Corporate Reorganizations | | | shares entitled to vote is required for a merger or a sale of all or substantially all of the assets of the corporation. Generally, Nevada law does not require a stockholder vote of the surviving corporation in a merger if: (a) the plan of merger does not amend the existing articles of incorporation; (b) each stockholder of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations and relative rights immediately after the merger; (c) the number of voting shares issued and issuable as a result of the merger will not exceed 20% of the total number of voting shares of the surviving corporation outstanding immediately before the merger; and (d) the number of participating shares issued and issuable as a result of the merger will not exceed 20% of the total number of participating shares outstanding immediately before the merger. NRS 92A.130. | | | as approval by the board of directors, is required for a merger or a sale of substantially all of the assets of the corporation. Generally, Delaware law does not require a stockholder vote of the surviving corporation in a merger (unless the corporation provides otherwise in its certificate of incorporation) if: (a) the plan of merger does not amend the existing certificate of incorporation; (b) each share of stock of the surviving corporation outstanding immediately before the effective date of the merger is an identical outstanding share after the effective date of the merger; and (c) either no shares of common stock of the surviving corporation and no shares, securities or obligations convertible into such stock are to be issued or delivered under the plan of merger, or the authorized unissued shares or treasury shares of common stock of the surviving corporation to be issued or delivered under the plan of merger plus those initially issuable upon conversion of any other shares, securities or obligations to be issued or delivered under such plan do not exceed 20% of the shares of common stock of such constituent corporation outstanding immediately prior to the effective date of the merger. DGCL Section 251. |
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| | Neither the Nevada Articles of Incorporation nor the Nevada Bylaws change this statutory rule. | | | Neither the Delaware Certificate of Incorporation nor the Delaware Bylaws change this statutory rule. Nevada and Delaware law are substantially similar in regard to stockholder approval of mergers and other corporate reorganizations. | |
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Special Meetings of Stockholders | | | Unless otherwise provided in the articles of incorporation or bylaws, the entire board of directors, any two directors, or the president may call annual and special meetings of the stockholders and directors. NRS 78.310 | | | Special meetings of the stockholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws. DGCL Section 211. |
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| | The Nevada Articles of Incorporation and Nevada Bylaws provide that a special meeting of the stockholders may be called only by the Chairperson of the Board or the President, or by the Board acting pursuant to a resolution adopted by a majority of the total number of authorized | | | The Delaware Certificate of Incorporation and Delaware Bylaws state that special meetings of the stockholders may be called at any time only by the Board, the chairperson of the Board, the chief executive officer or the president (in the absence of a chief executive officer), and |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | directors, whether or not there exist any vacancies in previously authorized directorships. | | | may not be called by any other person or persons. The Delaware Certificate of Incorporation and Delaware Bylaws are substantially similar to the Nevada Articles of Incorporation and Nevada Bylaws. | |
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Stockholder Action by Written Consent | | | Nevada law provides that, unless the articles of incorporation or bylaws otherwise provide, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if a written consent is signed by stockholders holding at least a majority of the voting power or such proportion of voting power as is required for such an action at a meeting. NRS 78.320. | | | Delaware law provides that, unless the certificate of incorporation provides otherwise, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if the holders of outstanding stock having at least the minimum number of votes that would be necessary to authorize or take such action at a meeting consents to the action in writing. In addition, Delaware law requires that the corporation give prompt notice of the taking of a corporate action without a meeting by less than unanimous written consent to those stockholders who did not consent in writing. DGCL Section 228. |
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| | The Nevada Bylaws do not change this statutory rule. | | | The Delaware Certificate of Incorporation and Delaware Bylaws do not allow stockholders to act by written consent, and therefore differ from the Nevada Bylaws. | |
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Advance Notice Provisions | | | Nevada law permits a corporation to include in its bylaws provisions requiring advance notice of and information requirements for business or stockholder proposals to be brought before an annual or special meeting of stockholders, including nominations of persons for election as directors. | | | Delaware law permits a corporation to include in its bylaws provisions requiring advance notice of stockholder proposals. |
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| | The Nevada Bylaws provide that advance notice of a stockholder’s proposal or director nominee must be delivered to the Secretary at the Company’s principal executive offices not less than sixty (60) days nor more than ninety (90) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that if the date of the pending annual meeting is advanced by more than thirty (30) days or delayed by more than sixty (60) days from such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the ninetieth (90th) day prior to such pending | | | The Delaware Bylaws provide that advance notice of a stockholder’s proposal or director nominee must be delivered to, or mailed and received by the secretary at, the Company’s principal executive offices not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that if the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received, not earlier than the close of business on the |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | annual meeting and not later than the close of business on the later of (i) the sixtieth (60th) day prior to such pending annual meeting, or (ii) the tenth (10th) day following the day on which public disclosure of the date of such annual meeting was first made. | | | one hundred twentieth (120th) day prior to such annual meeting and not later than the later of the close of business on (i) the ninetieth (90th) day prior to such annual meeting, or (ii) the tenth (10th) day following the day on which public disclosure of the date of such annual meeting was first made. | |
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Effect of Failure to Hold an Annual Meeting of Stockholders | | | If a corporation fails to elect directors within 18 months after the last election of directors, a Nevada district court will have jurisdiction in equity and may order an election upon petition of one or more stockholders holding stock entitling them to exercise at least 15% of the voting power. NRS 78.345. | | | If an annual meeting for election of directors is not held on the date designated or an action by written consent to elect directors in lieu of an annual meeting has not been taken within 30 days after the date designated for the annual meeting, or if no date has been designated, for a period of 13 months after the latest to occur of the organization of the corporation, its last annual meeting or the last action by written consent to elect directors in lieu of an annual meeting, the Court of Chancery may summarily order a meeting to be held upon the application of any stockholder or director. DGCL Section 211. |
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| | The Nevada Bylaws do not change this statutory rule. | | | The Delaware Bylaws do not change this statutory rule. As between Nevada law and Delaware law, Delaware law provides for a shorter interval than Nevada law (13 months versus 18 months) before a stockholder can apply to a court to order a meeting for the election of directors. Also, Nevada law requires that application be made by a stockholder holding at least 15% of the voting power; whereas, Delaware law permits any stockholder or director to make the application. | |
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Adjournment of Stockholder Meetings | | | Unless the articles of incorporation or bylaws otherwise provide, if a stockholders’ meeting is adjourned to another date, time or place, notice need not be delivered of the date, time or place of the adjourned meeting if they are announced at the meeting at which the adjournment is taken. If a new record date is fixed for the adjourned or postponed meeting, notice of the adjourned or postponed meeting must be delivered to each stockholder of record as of the new record date. The board of directors must fix a new record date if the meeting is | | | If a meeting of stockholders is adjourned and the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting must be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. DGCL Section 222. |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | adjourned or postponed to a date more than 60 days later than the meeting date set for the original meeting. NRS 78.370. | | | ||
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| | The Nevada Bylaws do not change this statutory rule. | | | The Delaware Bylaws do not change this statutory rule. | |
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Limitation on Director Liability | | | Under Nevada law, except as provided in the NRS or unless the articles of incorporation or an amendment thereto (filed on or after October 1, 2003) provides for greater individual liability, a director or officer is not individually liable to the corporation or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless the trier of fact determines that the presumption that such director or officer acted in good faith is rebutted and it is proven that: (a) the director’s or officer’s act or failure to act constituted a breach of his or her fiduciary duties as a director or officer; and (b) the breach of those duties involved intentional misconduct, fraud, or a knowing violation of law. NRS 78.138. | | | Under Delaware law, if a corporation’s certificate of incorporation so provides, the personal liability of a director for monetary damages for breach of fiduciary duty as a director may be eliminated or limited. A corporation’s certificate of incorporation, however, may not limit or eliminate a director’s personal liability (a) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law, (c) for the payment of unlawful dividends, stock repurchases or redemptions, or (d) for any transaction from which the director derived an improper personal benefit. DGCL Section 102. |
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| | The Nevada Articles of Incorporation provide that a director shall have no personal liability for damages for breach of fiduciary duty as a director, except for (a) acts or omissions which involve intentional misconduct, fraud or a knowing violation of law, or (b) the payment of dividends in violation of the applicable statutes of Nevada; however, those provisions were adopted in 1996, prior to the October 2003 date set forth in NRS 78.138 and therefore the statutory provisions should govern. The Articles of Incorporation also provide that, if the NRS is amended to authorize corporate action further eliminating or limiting the personal liability of directors, the liability of a director shall be eliminated or limited to the fullest extent permitted by the NRS. The Nevada Bylaws do not change the statutory rule set forth in NRS 78.138. | | | Consistent with this statutory rule, the Delaware Certificate of Incorporation limits the personal liability of a director for monetary damages for any breach of fiduciary duty as permitted under the DGCL. Delaware law is more restrictive than Nevada law with respect to limiting or eliminating the personal liability of directors, and does not address exculpation of corporate officers as is expressly included in NRS 78.138. | |
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Indemnification | | | NRS 78.7502 permits a corporation to indemnify, pursuant to that statutory provision, a present or former director, | | | A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | officer, employee or agent of the corporation, or of another entity or enterprise for which such person is or was serving in such capacity at the request of the corporation, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, except an action by or in the right of the corporation, against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection therewith, arising by reason of such person's service in such capacity if such person (i) is not liable pursuant to NRS 78.138, or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to a criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. In the case of actions brought by or in the right of the corporation, however, no indemnification pursuant to NRS 78.7502 may be made for any claim, issue or matter as to which such person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. Any discretionary indemnification pursuant to NRS 78.7502, unless ordered by a court or advanced to a director or officer by the corporation in accordance with the NRS, may be made by a corporation only as authorized in each specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. Such determination must be made (1) by the stockholders, (2) by the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding, (3) if a majority vote of a quorum | | | completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if: (a) the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation; and (b) with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. With respect to actions by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit is brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which such court shall deem proper. A director or officer who is successful, on the merits or otherwise in defending any proceeding subject to the Delaware corporate statutes’ indemnification provisions shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith. DGCL Section 145. |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion, or (4) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion. NRS 78.751 further provides that indemnification pursuant to NRS 78.7502 does not exclude any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the articles of incorporation or any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, for either an action in the person's official capacity or an action in another capacity while holding office, except that indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the advancement of expenses, may not be made to or on behalf of any director or officer finally adjudged by a court of competent jurisdiction, after exhaustion of any appeals, to be liable for intentional misconduct, fraud or a knowing violation of law, and such misconduct, fraud or violation was material to the cause of action. | | | ||
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| | The Nevada Articles of Incorporation provide that the Company shall provide indemnification consistent with the NRS and that such indemnification shall be against all loss, liability and expense (including attorneys’ fees, costs, damages, judgments, fines, amounts paid in settlement and ERISA excise taxes or penalties) actually and reasonably incurred by or on behalf of a director or officer in connection with such action, suit or proceeding, including any appeal. | | | The Delaware Certificate of Incorporation and the Delaware Bylaws provide that the Company shall provide indemnification consistent with the DGCL and that such indemnification shall be against all expenses (including, without limitation, attorneys’ fees), liabilities, losses, judgments, fines (including, without limitation, excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974) and amounts paid in settlement actually and reasonably incurred. The indemnification provisions of the NRS and DGCL are substantially similar. | |
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| | The Nevada Bylaws mandate indemnification substantially similar to that contemplated by NRS 78.7502. | | | We expect to enter into the Delaware Indemnification Agreement with our executive officers and directors based upon the indemnification provisions of the DGCL. | |
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Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
Advancement of Expenses | | | Nevada law provides that unless otherwise restricted by the articles of incorporation, the bylaws or an agreement made by the corporation, the corporation may pay the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified by the corporation. The articles of incorporation, bylaws or an agreement made by the corporation may also make such advancement mandatory upon receipt of an undertaking to repay as described above. NRS 78.751. | | | Delaware law provides that expenses (including attorneys’ fees) incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it is ultimately determined that such person is not entitled to be indemnified by the corporation as authorized under the indemnification laws of Delaware. Such expenses (including attorneys’ fees) may be so paid upon such terms and conditions as the corporation deems appropriate. Under Delaware law, unless otherwise provided in its certificate of incorporation or bylaws, a corporation has the discretion whether or not to advance expenses. DGCL Section 145. |
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| | The Nevada Articles of Incorporation and the Nevada Bylaws mandate advancement of expenses upon receipt of an undertaking by or on behalf of the indemnitee to repay the amount if it is ultimately determined by a court of competent jurisdiction that he or she is not entitled to be indemnified by the Company. | | | The Delaware Bylaws provide that such expenses shall be paid by the Company in advance of the final disposition of such matter; provided, however, that to the extent required by law, such payment shall be made only upon receipt of an undertaking by or on behalf of such director or officer to repay all amounts so advanced in the event that it is ultimately determined by final judicial decision form which there is no further right to appeal that such director or officer is not entitled to be indemnified by the Company. The Delaware Bylaws also provide that such advancement of expenses shall not be made if the Company determines that (a) such director or officer did not act in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Company, or (b) with respect to any criminal action or proceeding, such director or officer had reasonable cause to believe his or her conduct was unlawful. | |
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Declaration and Payment of Dividends | | | Except as otherwise provided in the articles of incorporation, a board of directors may authorize and the corporation may make distributions to the holders of any class or | | | Subject to any restriction contained in a corporation’s certificate of incorporation, the board of directors may declare, and the corporation may pay, dividends or other |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | series of the corporation’s shares, including distributions on shares that are partially paid. However, no distribution may be made if, after giving effect to such distribution: (a) the corporation would not be able to pay its debts as they become due in the usual course of business; or (b) except as otherwise specifically allowed by the articles of incorporation, the corporation’s total assets would be less than the sum of its total liabilities plus the amount that would be needed, if the corporation were to be dissolved immediately after the time of the distribution, to satisfy the preferential rights upon such dissolution of stockholders whose preferential rights are superior to those receiving the distribution. NRS 78.288. | | | distributions upon the shares of its capital stock either (a) out of “surplus”; or (b) in the event that there is no surplus, out of the net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. Dividends may not be paid if the capital of the corporation is less than the total amount of capital represented by the outstanding stock of all classes having a preference upon the distribution of assets. “Surplus” is defined as the excess of the net assets of the corporation over the amount determined to be the capital of the corporation by the board of directors (which amount cannot be less than the aggregate par value of all issued shares of capital stock). DGCL Sections 154, 170. | |
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| | The Nevada Articles of Incorporation and the Nevada Bylaws do not change this statutory rule. | | | The Delaware Certificate of Incorporation and the Delaware Bylaws are consistent with the DGCL. | |
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Business Combinations | | | Nevada law prohibits certain business combinations between a Nevada corporation and an interested stockholder within two years after such person becomes an interested stockholder. Generally, an “interested stockholder” is a holder who is the beneficial owner of 10% or more of the voting power of a corporation’s outstanding stock and at any time within two years immediately before the date in question was the beneficial owner of 10% or more of the then outstanding stock of the corporation. A business “combination” is broadly defined and includes, among other transactions, a merger or consolidation, a sale or other disposition of assets having an aggregate market value equal to more than 5% of the consolidated assets of the corporation or the aggregate market value of the outstanding voting shares of the corporation or representing more than 10% of the earning power or net income of the corporation, the issuance or transfer of any shares of the corporation or a subsidiary of the corporation that have an aggregate market value equal to 5% or more of the aggregate market value of all the outstanding voting shares of the | | | Delaware law prohibits, in certain circumstances, a “business combination” between the corporation and an “interested stockholder” within three years of the stockholder becoming an “interested stockholder.” Generally, an “interested stockholder” is a holder who, directly or indirectly, controls 15% or more of the outstanding voting stock or is an affiliate of the corporation and was the owner of 15% or more of the outstanding voting stock at any time within the three-year period prior to the date upon which the status of an “interested stockholder” is being determined. A “business combination” includes a merger or consolidation, a sale or other disposition of assets having an aggregate market value equal to 10% or more of the consolidated assets of the corporation or the aggregate market value of the outstanding stock of the corporation, any transaction which results in the issuance or transfer by the corporation or any direct or indirect majority-owned subsidiary of any stock of the corporation or of such subsidiary, certain transactions that would increase the interested stockholder’s proportionate share |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | corporation to the interested stockholder or its affiliate, the adoption of any plan or proposal for the liquidation or dissolution of the corporation under any agreement with the interested stockholder or any receipt of the benefit of any loan, advance, guarantee, pledge or other financial assistance or any tax credit or other tax advantaged provided by or through the corporation. This provision does not apply to a combination during the first two years after a person first became an interested stockholder if (i) the combination, or transaction by which the person first became an interested stockholder, is approved by the board of directors before the person first became an interested stockholder or (ii) the combination is approved by the board of directors and, at or after that time, the combination is approved at a meeting of the stockholders, and not by written consent, by the affirmative vote of the holders of stock representing at least 60% of the outstanding voting power of the corporation not beneficially owned by the interested stockholder or its affiliates. After such two year period, business combinations remain prohibited unless (a) the combination, or transaction by which the person first became an interested stockholder, is approved by the board of directors before the person first became an interested stockholder, (b) the combination is approved by a majority of the outstanding voting power of the corporation not beneficially owned by the interested stockholder or its affiliates or (c) the combination meets certain fair value requirements specified in NRS 78.411 to 78.444, inclusive. NRS 78.411-78.444. These laws generally apply to Nevada corporations with 200 or more stockholders of record. | | | ownership in the corporation and any receipt of the benefit, directly or indirectly, of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation or any direct or indirect majority-owned subsidiary. This provision does not apply where, among other things, (i) the transaction which resulted in the individual becoming an interested stockholder is approved by the corporation’s board of directors prior to the date the interested stockholder acquired such 15% interest, (ii) upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the outstanding voting stock of the corporation at the time the transaction commenced, or (iii) at or after the date the person becomes an interested stockholder, the business combination is approved by a majority of the board of directors of the corporation and an affirmative vote of at least 66 2/3% of the outstanding voting stock at an annual or special meeting and not by written consent, excluding stock owned by the interested stockholder. This provision also does not apply if a stockholder acquires a 15% interest inadvertently and divests itself of such ownership and would not have been a 15% stockholder in the preceding three years but for the inadvertent acquisition of ownership. DGCL Section 203. | |
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| | A Nevada corporation may elect in its articles of incorporation not to be governed by these particular laws, but if such election is not made in the corporation's original articles of incorporation, the amendment (1) must be approved by the affirmative vote of the holders of stock | | | The Delaware Certificate of Incorporation and the Delaware Bylaws do not change this statutory rule. Nevada law and Delaware law provide for different thresholds in determining whether or not a person is an “interested stockholder.” Under Delaware law, since the threshold is |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | representing a majority of the outstanding voting power of the corporation not beneficially owned by interested stockholders or their affiliates and associates, and (2) is not effective until 18 months after the vote approving the amendment and does not apply to any combination with a person who first became an interested stockholder on or before the effective date of the amendment. We have not made such an election in our original articles of incorporation and the Nevada Articles of Incorporation do not include such an election. | | | higher and because the DGCL provisions provide a carve-out for a hostile acquirer who completes a successful tender offer to own at least 85% of the outstanding shares, the DGCL provides less protection from hostile counterparties than under the NRS. | |
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Choice of Forum | | | The Nevada Articles of Incorporation and the Nevada Bylaws do not contain any provisions governing selection of forum for litigating corporate claims. | | | The Delaware Certificate of Incorporation contains a provision regarding choice of forum, which provides that unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Company under Delaware law, (b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or other employee of the Company to the Company or the Company’s stockholders, (c) any action asserting a claim against the Company or any of its directors, officers or other employees arising pursuant to any provision of the DGCL or the Delaware Certificate of Incorporation or the Delaware Bylaws, (d) any action asserting a claim against the Company or any of its directors, officers or other employees governed by the internal affairs doctrine of the State of Delaware, or (e) any other action asserting an “internal corporate claim,” as defined in Section 115 of the DGCL, in all cases subject to the Court of Chancery having personal jurisdiction over all indispensable parties named as defendants therein. Nothing in the choice of forum provision shall preclude stockholders that assert claims under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), from bringing such claims in state or federal court, subject to applicable law. Any person or entity purchasing or |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | | | otherwise acquiring any interest in any shares of our capital stock shall be deemed to have notice of and consented to this provision. This choice of forum provision is not intended to apply to any actions brought under the Securities Act or the Exchange Act. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. As a result, the exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. However, the Delaware Bylaws do not relieve us of our duties to comply with federal securities laws and the rules and regulations thereunder, and our stockholders will not be deemed to have waived our compliance with these laws, rules and regulations. The Delaware Bylaws also provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of and consented to this choice of forum provision. These choice of forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum of its choosing for disputes with us or our directors, officers or other employees, which may discourage lawsuits against us and our directors, officers and other employees. In addition, stockholders who do bring a claim in the Court of Chancery in the State of Delaware could face additional litigation costs in pursuing any such claim, particularly if they do not reside in or near Delaware. Furthermore, the enforceability of similar choice of forum provisions in other companies’ governing documents has been challenged in legal proceedings, and it is possible that a court could find these types of provisions to be inapplicable or unenforceable. If a court were to find the choice of forum provision to be inapplicable or unenforceable in an action, |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | | | we may incur additional costs associated with resolving the dispute in other jurisdictions, which could harm our results of operations. | ||
| | | | |||
Control Share Acquisition Statute | | | Under Nevada law, an acquiring person who acquires a controlling interest in an issuing corporation is prohibited from exercising voting rights on any control shares unless such voting rights are conferred by a majority vote of the disinterested stockholders of the issuing corporation at a special or annual meeting of stockholders. Unless otherwise provided in the articles of incorporation or the bylaws, if the control shares are accorded full voting rights and the acquiring person acquires control shares with a majority or more of all the voting power, any stockholder, other than the acquiring person, who does not vote in favor of authorizing voting rights for the control shares is entitled to dissent and demand payment of the fair value of his or her shares. A controlling interest means the ownership of outstanding voting shares of an issuing corporation sufficient to enable the acquiring person, directly or indirectly and individually or in association with others, to exercise: (i) one-fifth or more but less than one-third; (ii) one-third or more but less than a majority; or (iii) a majority or more, of all the voting power of the corporation in the election of directors. Control shares means those outstanding voting shares of an issuing corporation which an acquiring person: (a) acquires in an acquisition or offer to acquire in an acquisition; and (b) acquires within 90 days immediately preceding the date when the acquiring person became an acquiring person. The control share acquisition statutes apply only to an acquisition of a controlling interest in an issuing corporation (which means, as of any date, a Nevada corporation that then has 200 or more stockholders of record, at least 100 of whom have had addresses in Nevada appearing on the stock ledger of the corporation at all times during the 90 days immediately preceding such date, and which does business in Nevada directly or | | | Delaware does not have a similar statute, and consistent with Delaware law, neither the Delaware Certificate of Incorporation nor the Delaware Bylaws will contain a provision similar to the NRS control share acquisition statute. |
Provision | | | NRS, Nevada Articles of Incorporation and Nevada Bylaws | | | DGCL, Delaware Certificate of Incorporation and Delaware Bylaws |
| | through an affiliated corporation), unless the articles of incorporation or bylaws of the corporation in effect on the 10th day following the acquisition of a controlling interest by an acquiring person provide that the provisions of those sections do not apply. NRS 78.378-78.3793. | | | ||
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| | While the Nevada Bylaws were amended to include an opt-out provision under these control statutes in connection with the business combination of the Company with Seelos Therapeutics, Inc. in January 2019, neither the Nevada Articles of Incorporation nor the Nevada Bylaws contain any provisions generally pertaining to the acquisition of a controlling interest by the Company’s existing or future stockholders. | | |
Officer and other executive officers.
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InAN AMENDMENT TO THE COMPANY’S AMENDED AND RESTATED ARTICLES OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK TO A TOTAL NUMBER OF 240,000,000 SHARES
Recommendation of Board
After careful considerationbest interest of the reasons described below,Company to increase the number of authorized shares of Common Stock in order to give the Company greater flexibility in considering and planning for future general corporate needs, including, but not limited to, grants under equity compensation plans, stock splits, financings, potential strategic transactions, as well as other general corporate transactions. The Board believes that conducting an advisory vote on executive compensation EVERY YEAR, or an annual vote, is appropriate foradditional authorized shares of Common Stock will enable the Company to take timely advantage of market conditions and favorable financing and acquisition opportunities that become available to the Company by allowing the issuance of such shares without the expense and delay of another stockholder meeting.
As describedpotential dilutive effect may cause a reduction in the Compensation Discussion and Analysis section, onemarket price of our Common Stock.
An annual vote will provide us with an opportunity to respond to stockholders’ sentiments and to implement changes before the next annual meeting. We carefully consider changes to our program to maintain the effectiveness and consistency of the program, which is important in motivating and retaining our employees.
Stockholders will be able to specify one of four choices for this proposal on the proxy card: one year, two years, three years or abstain. This advisory vote on the frequency of future advisory “say-on-pay” votes is non-binding on the Board. The option of one year, two years or three years that receives the highest number of votes cast by stockholders will be the frequency for the advisory vote on “say-on-pay” that has been selected by our stockholders. However, because this vote is advisory and not binding, the Board maychange in the future decide to conduct advisory votes on a more or less frequent basis.
Required Vote
The voting frequency option that receives the highest numbercomposition of votes cast by stockholders will be the frequency of future advisory resolutions to approve named executive officer compensation that has been selected by our stockholders. However, because this vote is advisory and not binding on the Board or oncontemplating a tender offer or other transaction for the Company,combination of us with another company that the Board may decide that itdetermines is not in the Company’s best interests or in the best interests of our stockholders andstockholders. The ability of the Board to cause the Company to hold future advisory resolutionsissue substantial amounts of Common Stock or preferred stock without the need for stockholder approval, except as may be required by law or regulation, upon such terms and conditions as the Board may determine from time to approve namedtime in the exercise of its business judgment may, among other things, result in practical impediments with respect to changes in control of the Company or have the effect of diluting the stock ownership of holders of Common Stock seeking to obtain control of the Company. The issuance of Common Stock or preferred stock, while providing desirable flexibility in connection with potential financings and other corporate transactions, may have the effect of discouraging, delaying or preventing a change in control of the Company. The Board, however, does not intend or view the Amendment to effect the Share Increase as an anti-takeover measure, nor does the Board contemplate using the Share Increase in this manner at any time in the foreseeable future.
The approval of Proposal No. 5 is a routine proposal on which a broker or other nominee has discretionary authority to vote. Accordingly, it is unlikely that any Broker Non-Votes will result from this proposal.
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stockholders.
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and the approval of award documents to our non-officer employees. However, the Compensation Committee may not delegate any authority under those plans for matters affecting the compensation and benefits of the Company’sour Named Executive Officers.Officer. Compensation recommendations and performance assessments of Named Executive Officers from the Company’sour Chief Executive Officer are considered by the Compensation Committee in determining the total compensation packages for Named Executive OfficersOfficer (excluding the Chief Executive Officer). The Chief Executive Officer is not present for any discussions relating to his compensation.
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Board oversight is conducted primarily through committees of the Board, including the Audit Committee, Compensation Committee and the Corporate Governance/Nominating Committee. However, the full Board has retained responsibility for general risk oversight. Our Board satisfies this responsibility, in part, through reports by each committee chair regarding the committee’s considerations and actions. The Board also has the responsibility of ensuring compliance with the risk management processes designed and implemented by management, which it satisfies through reports directly from the officer responsible for oversight of particular risks within our Company. The Board believes that full and open communication between management and the Board is essential for effective risk management and oversight.
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Name | | | Age | | | Position |
Raj Mehra, Ph.D. | | | | | Chairman, Chief Executive Officer, President and Interim Chief Financial Officer |
Raj Mehra, Ph.D. is our Chairman, Chief Executive Officer, President and Interim Chief Financial Officer. See “Class II Directors Continuing in Office until 2021”2023” above for a discussion of Dr. Mehra’s business experience.
Name and Position | Year | Salary | Bonus(4) | Stock Awards(5) | Option Awards(6) | Non-Equity Incentive Plan Compensation(7) | All Other Compensation | Total | ||||||||||||||
Richard W. Pascoe, Former Chief Executive Officer, Secretary and Director(1) | 2018 | $ | 487,396 | $ | — | $ | — | $ | 516,950 | $ | — | $ | 13,728 | $ | 1,018,074 | |||||||
2017 | $ | 487,396 | $ | 97,479 | $ | 64,000 | $ | — | $ | 176,681 | $ | 13,036 | $ | 838,592 | ||||||||
Brian T. Dorsey, Former Senior Former Senior Vice President, Chief Development Officer(2) | 2018 | $ | 319,300 | $ | — | $ | — | $ | 126,600 | $ | — | $ | 13,115 | $ | 459,015 | |||||||
2017 | $ | 319,300 | $ | 63,860 | $ | 48,000 | $ | — | $ | 92,597 | $ | 12,788 | $ | 536,545 | ||||||||
Neil Morton, Former Senior Vice President, Chief Business Officer(3) | 2018 | $ | 275,000 | $ | — | $ | — | $ | 126,600 | $ | — | $ | 12,636 | $ | 414,236 | |||||||
2017 | $ | 275,000 | $ | 55,000 | $ | 48,000 | $ | — | $ | 79,750 | $ | 12,006 | $ | 469,756 |
Name and Position(s) | | | Year | | | Salary | | | Option Awards(2) | | | Non-Equity Incentive Plan Compensation(3) | | | All Other Compensation(4) | | | Total |
Raj Mehra, Ph.D., Chairman, Chief Executive Officer, President and Interim Chief Financial Officer(1) | | | 2020 | | | $475,000 | | | $3,502,863 | | | $237,500 | | | $11,734 | | | $4,227,097 |
| 2019 | | | $437,500 | | | $— | | | $235,000 | | | $5,250 | | | $677,750 |
(1) |
(2) |
Represents the grant date fair value of the stock option awards, |
Represents the |
(4) | Dr. Mehra’s All Other Compensation in 2020 and 2019 consist of our matching and profit-sharing contribution to the 401(k) plan. |
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Narrative Disclosure to Summary Compensation Table
2019. Effective January 1, 2020, Dr. Mehra’s base salary increased from $437,500 to $475,000.
The Company
SLS-002, SLS-004, SLS-005 and SLS-007 programs, and the entry into certain collaboration and research agreements, and determined that Dr. Mehra should be paid his bonus at 100% of the targeted level.
Name | | | Title(s) | | | Fiscal Year 2020 Incentive Bonus Rate at Target | | | 2020 Evaluation of Company Performance | | | Final Ratio Incentive Bonus as a Percentage of Base Salary | | | Fiscal 2020 Incentive Bonus Award |
Raj Mehra, Ph.D. | | | Chairman, Chief Executive Officer, President and Interim Chief Financial Officer | | | 50% | | | 100% | | | 50% | | | $237,500 |
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grants or our annual grant program, the Compensation Committee retains discretion to grant equity awards to employees at other times, including in connection with the promotion of an employee, to reward an employee, for retention purposes or for other circumstances recommended by management or the Compensation Committee. In 2020, we granted: (i) options to purchase 4,503,895 shares of our Common Stock under our Amended and Restated 2012 Stock Long Term Incentive Plan, as amended (the “Amended and Restated 2012 Plan”) to our employees, including grants of options to purchase 3,013,262 shares of our Common Stock to our Named Executive Officer; (ii) options to purchase 104,000 shares of our Common Stock under the Amended and Restated 2012 Plan to our non-employee directors pursuant to our non-employee director compensation policy; and (iii) options to purchase 120,000 shares of our Common Stock under our 2019 Inducement Plan (the “Inducement Plan”) to certain new employees. We did not grant any restricted stock unit awards in 2020. Our Named Executed Officer did not receive any equity awards in 2019. In
2018 Awards Granted – Time-Based Stock Options
In January 2018, the Board, based upon a recommendation by the Compensation Committee, awarded annual stock options to ourOfficer.
The Board’s determination regarding each Named Executive Officer’s annual award amount was not based on any quantifiable factors, but instead was based on the Compensation Committee’s subjective analysis of the award levels the Compensation Committee deemed appropriate for each executive in light of various factors, including the fact that each executive’s base salary remained below the 50th percentile for the Company’s peer group for 2015. The final award levels, however, were entirely based on the Compensation Committee’s subjective analysis of these general factors and internal pay equity considerations.
Employee Benefit Program
Executive officers, including the Named Executive Officers, areOfficer is eligible to participate in all of our employee benefit plans, including medical, dental, vision, group life, disability and accidental death and dismemberment insurance, in each case on the same basis as other employees, subject to applicable law. We also provide vacation and other paid holidays to all employees, including executive officers. These benefit programs are designed to enable us to attract and retain our workforce in a competitive marketplace. Health, welfare and vacation benefits ensure that we have a productive and focused workforce through reliable and competitive health and other benefits.
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Option Awards(1) | Stock Awards | ||||||||||||||||||||||||||
Name | Number of Securities Underlying Unexercised Options Exercisable (#) | Number of Securities Underlying Unexercised Options Non- Exercisable (#) | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) | Option Exercise Price ($) | Option Expiration Date | Number of Shares or Units of Stock That Have Not Vested (#) | Market Value of Shares or Units of Stock That Have Not Vested ($) | Equity Incentive Plan Awards: Number of Unearned shares, Units or Other Rights That Have Not Vested (#)(4) | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($)(5) | ||||||||||||||||||
Richard W. Pascoe | — | 8,166 | — | $ | 63.30 | 1/3/2028 | — | — | 3,916 | $ | 752 | ||||||||||||||||
3,000 | — | — | $ | 753.00 | 3/18/2023 | ||||||||||||||||||||||
979 | 20 | — | $ | 429.00 | 1/29/2025 | ||||||||||||||||||||||
1,146 | 520 | — | $ | 333.00 | 3/15/2026 | ||||||||||||||||||||||
Brian T. Dorsey | 2,000 | — | — | $ | 63.30 | 1/3/2028 | — | — | — | — | |||||||||||||||||
1,000 | — | — | $ | 339.00 | 12/1/2024 | ||||||||||||||||||||||
666 | — | — | $ | 333.00 | 3/15/2026 | ||||||||||||||||||||||
Neil Morton | — | 2,000 | — | $ | 63.30 | 1/3/2028 | — | — | 2,666 | $ | 512 | ||||||||||||||||
400 | — | — | $ | 696.00 | 3/20/2024 | ||||||||||||||||||||||
266 | — | — | $ | 696.00 | 3/20/2024 | ||||||||||||||||||||||
195 | 4 | — | $ | 429.00 | 1/29/2025 | ||||||||||||||||||||||
194 | 88 | — | $ | 333.00 | 3/15/2026 | ||||||||||||||||||||||
366 | 183 | — | $ | 171.00 | 4/1/2026 |
| | Option Awards | |||||||||||||
Name | | | Grant Date | | | Number of Securities Underlying Unexercised Options Exercisable (#) | | | Number of Securities Underlying Unexercised Options Non-Exercisable (#) | | | Option Exercise Price ($) | | | Option Expiration Date |
Raj Mehra Ph.D. | | | January 6, 2020(1) | | | — | | | 731,000 | | | $1.42 | | | 1/6/2030 |
| June 11, 2020(2) | | | — | | | 2,282,262 | | | $1.08 | | | 6/11/2030 |
(1) |
(2) | 1/4th of the |
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units granted in January 2017 and June 2017 that will also vest upon our receipt of marketing approval of Vitaros in the United States by the FDA, subject to the executive’s continuous employment or service with us through the vesting date, as follows: Mr. Pascoe, 3,333 restricted stock units; and Mr. Morton, 2,500 restricted stock units. In addition, all of these restricted stock units will vest in the event of a “covered transaction” (as defined in the 2012 Plan).
Payments Upon Termination or Change In Control
Richard W. Pascoe
The 20162019 Employment Agreement, provided that if Mr. Pascoe’s employment ends dueDr. Mehra is terminated by us without cause or by Dr. Mehra for good reason (a “Covered Termination”) outside of the period commencing three months prior to an involuntary termination, as such term is defineda change in the 2016 Employment Agreement, he would receive, in a lump sum payment,control and ending 12 months after a change in control (a “Change in Control Period”), we will pay to Dr. Mehra an amount equal to the sum of his annual base salary in effect onand the date of termination, any accrued but unpaidannual bonus earned by Dr. Mehra for the calendarfiscal year immediately preceding his termination, to the extent that the criteria for the bonus had been met, plus his target bonus for thefiscal year in which the datetermination occurs, and a pro-rata portion of his involuntary termination occurred, full acceleration and vesting of his unvested equity awards, and reimbursement for the cost of continuation of health insurance benefits provided to him immediately prior to the termination (as provided under Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) or other applicable law) until the earliest of 12 months following the termination, the date Mr. Pascoe becomes eligible for coverage under health and/or dental plans of another employer or the date upon which he is no longer eligible for such COBRA or other benefits under applicable law.
The 2016 Employment Agreement also provided that if Mr. Pascoe’s employment was terminated in connection with his death or a permanent disability, Mr. Pascoe or his estate would have been entitled to a pro rataearned annual bonus for the calendarfiscal year in which the termination occurs. Additionally, the vesting of any outstanding equity awards that are scheduled to vest solely subject to continued service or employment shall accelerate so that such termination occurred, equalawards shall be vested to the bonus he would have received, to thesame extent all criteria for such a bonus have been met (with the exceptionas if Dr. Mehra had provided an additional 12 months of the requirement that he be employed on the date the bonus is to be paid), for the calendar year of termination multiplied by a fraction, the numerator of which is the number of days in such year preceding and including the date of termination, and the denominator of which is 365. Such pro-rata bonus would have been paid at the same time as the bonus would have been paid had Mr. Pascoe remained employed by the Company through the date of payment, but in any event, not later than March 15 of the calendar year following the calendar year for which the bonus was payable. Mr. Pascoe was also entitled to receive any unpaid bonus for the calendar year preceding his termination, to the extent that all criteria for such bonus had been met (with the exception of the requirement that he be employed on the date the bonus was to be paid). Such bonus would have been paid at the same time as the bonus would have been paid had he remained employed by the Company through the date of payment. Additionally, all of his outstanding but unvested equity awards would have vested immediately and the expiration date for all such equity awards would have been extended so that they expire one year after termination due to death or permanent disability.
Under the 2016 Employment Agreement, in the event that Mr. Pascoe suffered an involuntary termination within the 12-month period following the effective date of a change of control, then in addition to all salary and bonuses accrued as ofservice from the date of his termination he wouldtermination. We will also have been entitledeither continue to severance benefits. These include (i)provide Dr. Mehra and his dependents coverage under our group health plan at our sole expense or reimburse Dr. Mehra for such coverage for twelve months from the Company would have paiddate of termination.
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salary that he was receiving immediately prior to the change of control; (ii) the Company shall pay to Mr. Pascoe in one lump sum (A) any unpaid bonus for the calendar year preceding his termination, to the extent that all criteria for such bonus had been met (with the exception of the requirement that he be employed on the date the bonus was to be paid), plus (B) 100% of his target bonus for the year in which the date of his involuntary termination occurred; (iii) full acceleration of the vesting of all equity awards held by Mr. Pascoe at the time of the termination, including any options, restricted stock, RSUs or other awards, and (iv) reimbursement for the cost of continuation of health insurance benefits provided to him immediately prior to the termination pursuant to the terms of COBRA or other applicable law for a period continuing until the earlier of 18 months following the termination or the date upon which he is no longer eligible for such COBRA or other benefits under applicable law. In addition, Mr. Pascoe’s outstanding performance-based stock options as well as the unvested portion of restricted stock units granted in March 2016, April 2016, January 2017, and June 2017 would have vested in the event of a “covered transaction” (as defined in the 2012 Plan).
If he was terminated for cause at any time or resigned under circumstances that did not constitute an involuntary termination, then Mr. Pascoe would not have been entitled to receive payment of any severance benefit or any continuation or acceleration of stock option vesting. He would have received payment for all salary accrued as of the date of termination of employment.
In connection with the Merger, our board of directors approved, and we entered into, an amended and restated employment agreement with Mr. Pascoe dated August 30, 2018 (the “2018 Employment Agreement”). Under the 2018 Employment Agreement, we and Mr. Pascoe agreed as follows:
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addition, we may elect to settle the Pascoe Closing RSU in cash, in its discretion. If the settlement of the Pascoe Closing RSU would not be possible as of the grant date as a result of there being insufficient shares available for issuance under the Company’s equity incentive plan, or the issuance of such shares causing the award to exceed any individual award limits contained in the 2012 Plan, the Pascoe Closing RSU will still be granted but any share settlement shall be subject to the approval by the our board of directors and/or the our stockholders of an amendment to the Company’s equity incentive plan permitting such share settlement under the terms of such plan (and increasing or deleting the individual award limits).
For the avoidance of doubt, the Pascoe Closing RSU would be granted in consideration of Mr. Pascoe’s services to us as an employee and not for his services as a non-employee director.
All other terms of the 2016 Employment Agreement remained substantially unchanged. Mr. Pascoe’s employment was terminated on January 24, 2019 in connection with the closing of the Merger.
Brian T. Dorsey
Employment Agreement with Mr. Dorsey
On December 1, 2014, we entered into an employment agreement with Brian T. Dorsey. Subsequently, on December 20, 2016, we entered into an amended and restated employment agreement with Mr. Dorsey, which superseded and replaced the initial employment agreement. Mr. Dorsey’s employment was terminated on August 30, 2018, and he executed a release agreement in connection with such termination, which superseded the employment agreement at that time.
The amended and restated agreement provided that if Mr. Dorsey’s employment ended due to an involuntary termination, as such term is defined in his agreement, he would receive, in a lump sum payment, 12 months of his annual base salary in effect on the date of termination, any accrued but unpaid bonus for the calendar year preceding his termination, to the extent that the criteria for the bonus had been met, plus his target bonus for the year in which the date of his involuntary termination occurred, full acceleration and vesting of his unvested equity awards, and reimbursement for the cost of continuation of health insurance benefits provided to him immediately prior to the termination (as provided under COBRA or other applicable law) until the earliest of 12 months following the termination, the date Mr. Dorsey becomes eligible for coverage under health and/or dental plans of another employer or the date upon which he is no longer eligible for such COBRA or other benefits under applicable law.
If Mr. Dorsey’s employment was terminated in connection with his death or a permanent disability, Mr. Dorsey or his estate was entitled to a pro rata target bonus for the calendar year in which such termination occurred. Mr. Dorsey was also entitled to receive any accrued but unpaid bonus for the calendar year preceding his termination, to the extent that all criteria for such bonus have been met (with the exception of the requirement that he be employed on the date the bonus is to be paid). Such bonus amounts would be paid in cash in a lump sum following the effectiveness of a general release of claims (or, in the event of his death, within five days following the date of death). Additionally, all of his outstanding but unvested equity awards would vest immediately and the expiration date for all such equity awards would be extended so that they expire one year after termination due to death or permanent disability.
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In the event that Mr. Dorsey suffered an involuntary termination within the 12-month period following the effective date of a change of control, then in addition to all salary accrued as of the date of his termination he will also be entitled to severance benefits. These include (i) the Company would pay to Mr. Dorsey in one lump sum an amount equal to the greater of (A) 18 months of the salary that he was receiving immediately prior to the termination or (B) 18 months of the salary that he was receiving immediately prior to the change of control; (ii) the Company shall pay to Mr. Dorsey in one lump sum (A) any accrued but unpaid bonus for the calendar year preceding his termination, to the extent that all criteria for such bonus have been met (with the exception of the requirement that he be employed on the date the bonus is to be paid), plus (B) 100% of his target bonus for the year in which the date of his involuntary termination occurred; (iii) full acceleration of the vesting of all equity awards held by Mr. Dorsey at the time of the termination, including any options, restricted stock, RSUs or other awards, and (iv) reimbursement for the cost of continuation of health insurance benefits provided to him immediately prior to the termination pursuant to the terms of COBRA or other applicable law for a period continuing until the earlier of 18 months following the termination or the date upon which he is no longer eligible for such COBRA or other benefits under applicable law. In addition, Mr. Dorsey’s outstanding performance-based stock options as well as the unvested portion of restricted stock units granted in March 2016, May 2016, January 2017, and June 2017 will vest in the event of a “covered transaction” (as defined in the 2012 Plan).
If he was terminated for cause at any time or if he voluntarily resigned under circumstances that did not constitute an involuntary termination, then Mr. Dorsey would not be entitled to receive payment of any severance benefit or any continuation or acceleration of stock option vesting and all of his restricted stock awards shall remain subject to all applicable forfeiture provisions and transfer restrictions. He would receive payment for all salary accrued as of the date of termination of employment.
Consulting Agreement and Release Agreement with Mr. Dorsey
On August 30, 2018, Mr. Dorsey’s employment with us terminated and we entered into a consulting agreement with Mr. Dorsey pursuant to which he will consult with us on an as-needed basis through March 31, 2019, and assist with any transition of the Vitaros assets to an interested third party in conjunction with its sale or license. In connection with his termination of employment, our board of directors approved, and we entered into, a release agreement with Mr. Dorsey dated August 30, 2018. Under the release agreement, we and Mr. Dorsey agreed as follows:
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any shares cannot be issued under the terms of the Company’s equity incentive plan for any reason, including as a result of there being insufficient shares available for issuance thereunder or the issuance of shares causing any individual award limit under the plan to be exceeded, in cash with respect to such shares. In addition, we may elect to settle the Dorsey Closing RSU in cash, in its discretion. If the settlement of the Dorsey Closing RSU would not be possible as of the grant date as a result of there being insufficient shares available for issuance under the Company’s equity incentive plan, or the issuance of such shares causing the award to exceed any individual award limits contained in the 2012 Plan, the Dorsey Closing RSU will still be granted but any share settlement shall be subject to the approval by our board and/or the our stockholders of an amendment to the Company’s equity incentive plan permitting such share settlement under the terms of such plan (and increasing or deleting the individual award limits).
The value of the Dorsey Closing RSU was paid to Mr. Dorsey on January 24, 2019 in connection with the closing of the Merger.
Neil Morton
On March 20, 2014, we entered into an employment agreement with Neil Morton, which was later amended and restated on April 25, 2016. Subsequently, on December 20, 2016, we entered into a second amended and restated employment agreement with Mr. Morton, which superseded and replaced the first amended and restated employment agreement. Mr. Morton’s employment was terminated on January 24, 2019 in connection with the closing of the Merger.
The second amended and restated agreement provided that if Mr. Morton’s employment ended due to an involuntary termination, as such term is defined in his agreement, he would receive, in a lump sum payment, 12 months of his annual base salary in effect on the date of termination, any accrued but unpaid bonus for the calendar year preceding his termination, to the extent that the criteria for the bonus had been met, plus his target bonus for the year in which the date of his involuntary termination occurred, full acceleration and vesting of his unvested equity awards, and reimbursement for the cost of continuation of health insurance benefits provided to him immediately prior to the termination (as provided under COBRA or other applicable law) until the earliest of 12 months following the termination, the date Mr. Morton becomes eligible for coverage under health and/or dental plans of another employer or the date upon which he is no longer eligible for such COBRA or other benefits under applicable law.
If Mr. Morton’s employment was terminated in connection with his death or a permanent disability, Mr. Morton or his estate was entitled to a pro rata target bonus for the calendar year in which such termination occurred. Mr. Morton was also entitled to receive any accrued but unpaid bonus for the calendar year preceding his termination, to the extent that all criteria for such bonus have been met (with the exception of the requirement that he be employed on the date the bonus is to be paid). Such bonus amounts would be paid in cash in a lump sum following the effectiveness of a general release of claims (or, in the event of his death, within five days following the date of death). Additionally, all of his outstanding but unvested equity awards would vest immediately and the expiration date for all such equity awards would be extended so that they expire one year after termination due to death or permanent disability.
In the event that Mr. Morton suffered an involuntary termination within the 12-month period following the effective date of a change of control, then in addition to all salary accrued as of the date of his termination he would also be entitled to severance benefits. These include (i) the Company would pay to Mr. Morton in one lump sum an amount equal to the greater of (A) 18 months of the salary that he was receiving immediately prior to the termination or (B) 18 months of the salary that he was receiving immediately prior to the change of control; (ii) the Company would pay to Mr. Morton in one lump sum (A) any accrued but unpaid bonus for the calendar year preceding his termination, to the extent that all criteria for such bonus have been met (with the exception of the requirement that he be employed on the date the bonus is to be paid), plus (B) 100% of his target bonus for the year in which the date of his involuntary termination occurred; (iii) full acceleration of the
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vesting of all equity awards held by Mr. Morton at the time of the termination, including any options, restricted stock, RSUs or other awards, and (iv) reimbursement for the cost of continuation of health insurance benefits provided to him immediately prior to the termination pursuant to the terms of COBRA or other applicable law for a period continuing until the earlier of 18 months following the termination or the date upon which he is no longer eligible for such COBRA or other benefits under applicable law. In addition, Mr. Morton’s outstanding performance-based stock options as well as the unvested portion of restricted stock units granted in March 2016, May 2016, January 2017, and June 2017 will vest in the event of a “covered transaction” (as defined in the 2012 Plan).
If he was terminated for cause at any time or if he voluntarily resigned under circumstances that did not constitute an involuntary termination, then Mr. Morton would not be entitled to receive payment of any severance benefit or any continuation or acceleration of stock option vesting and all of his restricted stock awards shall remain subject to all applicable forfeiture provisions and transfer restrictions. He would receive payment for all salary accrued as of the date of termination of employment.
23
During 2018, each non-employee director was entitled to receive an annual cash retainer of $40,000, with additional annual cash retainers for the chairs of our various Board committees in the following amounts: $15,000 for the chair of the Audit Committee, $12,000 for the chair of the Compensation Committee and $8,000 for the chair of the Corporate Governance/Nominating Committee. Additionally, non-chair members of these committees will receive additional annual cash retainers in the following amounts: $7,000 for members of the Audit Committee, $5,000 for members of the Compensation Committee and $3,000 for members of the Corporate Governance/Nominating Committee. The Chairman of the Board is also entitled to receive an additional annual cash retainer of $40,000 per year.
Prior to January 3, 2018, on the third trading day of each calendar year, each non-employee director was eligible to receive an annual grant of 11,250 restricted stock units (or, in the case of our Chairman of the Board, 15,000 restricted stock units), subject to the terms and provisions of the 2012 Plan. Such restricted stock units vested upon the first anniversary of the date of grant, subject to the director's continuing service on our Board on such date.
On January 3, 2018, our Board approved an amendment to the equity component of our non-employee director compensation policy such that the annual grant of equity would be in the form of options rather than restricted stock units. As such, pursuant to the amendment, on the third trading day of each calendar year, each non-employee director is eligible to receive a non-qualified stock option to purchase 35,000 shares of Common Stock (or, in the case of our Chairman of the Board, an option to purchase 50,000 shares of Common Stock), subject to the terms and provisions of the 2012 Plan. Annual awards vest over one year in 12 equal monthly installments, subject to the director's continuing service on our Board through such dates. All initial and annual awards to our non-employee directors will vest in full in the event of a change in control.
On January 3, 2019, our Board determined to suspend our non-employee director compensation policy in light of the pending closing of the Merger.
24
Non-Employee Director Compensation for 2018
2020
Name | Cash Compensation(1) | Option Grants(2) | Stock Awards(3) | Total | ||||||||
Kleanthis G. Xanthopoulos, Ph.D. | $ | 92,000 | $ | 96,710 | $ | — | $ | 188,710 | ||||
Russell Ray | $ | 55,000 | $ | 67,697 | $ | — | $ | 122,697 | ||||
Paul V. Maier | $ | 58,000 | $ | 67,697 | $ | — | $ | 125,697 | ||||
Wendell Wierenga, Ph.D. | $ | 48,000 | $ | 67,697 | $ | — | $ | 115,697 | ||||
Sandford D. Smith | $ | 52,000 | $ | 67,697 | $ | — | $ | 119,697 |
Name | | | Cash Compensation(1) | | | Option Grants(2) | | | Total |
Richard W. Pascoe | | | $40,000 | | | $18,160 | | | $58,160 |
Brian Lian, Ph.D. | | | $67,000 | | | $18,160 | | | $85,160 |
Daniel J. O’Connor, J.D. | | | $59,271 | | | $18,160 | | | $77,431 |
Judith Dunn, Ph.D.(3) | | | $31,557 | | | $31,827 | | | $63,384 |
Dr. Robin L. Smith(4) | | | $19,322 | | | $18,160 | | | $37,482 |
(1) | Includes the value of the annual retainers payable to our non-employee directors. |
(2) | Represents the grant date fair value of the stock options granted in |
(3) |
(4) |
TABLE OF CONTENTSEquity Compensation Plan Information
Plan category | Number of securities to be issued upon exercise of outstanding options, warrants and rights (a)(1) | Weighted-average exercise price of outstanding options, warrants and rights (b)(2) | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)(3) | ||||||
Equity compensation plans approved by security holders | 38,416 | $ | 185.98 | 10,872 |
Plan category | | | Number of securities to be issued upon exercise of outstanding options, warrants and rights (a) | | | Weighted-average exercise price of outstanding options, warrants and rights (b)(1) | | | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)(2) |
Equity compensation plans approved by security holders(3)(4) | | | 4,871,476 | | | $2.01 | | | 3,181,105 |
Equity compensation plans not approved by security holders(5) | | | 248,101 | | | $1.19 | | | 782,715 |
Total | | | 5,119,577 | | | $1.97 | | | 3,963,820 |
(1) |
Consists of the weighted average exercise price of outstanding options as of December 31, |
(2) | Consists entirely of shares of |
(3) | Consists of options outstanding as of December 31, 2020 under Amended and Restated 2012 Plan and the NexMed, Inc. 2006 Stock Incentive Plan, and shares of Common Stock that remain available for future issuance under the ESPP. |
(4) | The number of shares of Common Stock available for issuance under the Amended and Restated 2012 Plan will increase automatically on January 1st of each year, beginning January 1, 2020 and ending on (and including) January 1, 2029 by the lesser of (a) 4% of the number of shares of Common Stock issued and outstanding on a fully-diluted basis as of the close of business on the immediately preceding December 31, and (b) a number of shares of Common Stock set by the Board on or prior to each such January 1. On January 1, 2021 and each January 1 thereafter through January 1, 2030, the number of shares available for issuance under the ESPP shall be cumulatively increased by the lesser of (i) 1% of the number of shares of Common Stock issued and outstanding on the immediately preceding December 31, and (ii) such number of shares as determined by the Board or the Compensation Committee. |
(5) | Consists of the Inducement Plan and the Seelos Therapeutics, Inc. 2016 Equity Incentive Plan. |
25
and the SEC.
| | Submitted by the Audit Committee of the Board of Directors | |
| | ||
| | Daniel J. O’Connor, J.D. (Chair) | |
| | Brian Lian, Ph.D. | |
| | Dr. |
26
IRRAS AB (“IRRAS”) is a commercial stage medical technology company of which a former director of the Company, Kleanthis G. Xanthopoulos, Ph.D., is currently the President, Chief Executive Officer and director. In January 2018, the Company and IRRAS entered into a Sublease, pursuant to which we subleased to IRRAS excess capacity in its corporate headquarters. The sublease has a term of two years and aggregate payments due to the Company of approximately $0.3 million. On October 30, 2018, the Company and IRRAS entered into an amended and restated sublease, commencing January 1, 2019, pursuant to which we agreed to sublease to IRRAS the remainder of its current corporate headquarters (the “IRRAS Restated Sublease”), which satisfied a closing condition related to the Merger. The IRRAS Sublease has a term of one year and provides for aggregate payments due to the Company of approximately $0.4 million, which approximate fair value.
Dr. Raj Mehra is an executive officer of each of the Company and STI, a member of each of the Company’s and STI’s respective boards of directors and, in his individual capacity, a holder of more than 5% of the Company’s outstanding capital stock. Prior to the Merger, Dr. Mehra was also a holder of more than 5% of STI’s outstanding capital stock. Dr. Mehra received 3,081,546 shares of our common stock in the Merger.
In connection with the Merger and in accordance with the terms of the Merger Agreement, STI also entered into a Support Agreement, with Dr. Mehra, pursuant to which, among other things Dr. Mehra agreed, solely in his capacity as a stockholder of STI, to vote all of his shares of STI’s common stock in favor of the adoption of the Merger Agreement and the approval of the Merger and against any action or agreement that would reasonably be expected to result in a material breach of any covenant, representation, warranty or other obligation of STI under the Merger Agreement. He also agreed to vote against any acquisition proposal or other matter that would reasonably be expected to impede, interfere with, delay, postpone, discourage or materially adversely affect the consummation of the Merger and the transactions contemplated by the Merger Agreement. Dr. Mehra also granted STI an irrevocable proxy to vote his STI common stock in accordance with the support agreement.
27
Name and Address of Beneficial Owner | Number of Shares Beneficially Owned | Percentage of Class (%)(1) | ||||
Ligand Pharmaceuticals Incorporated(2) | 2,030,206 | 9.99 | % | |||
Directors and Named Executive Officers(3) | ||||||
Raj Mehra, Ph.D.(4) | 3,081,546 | 15.24 | % | |||
Robin L. Smith, M.D., Director(5) | 11,558 | * | ||||
Daniel J. O’Connor, J.D., Director(6) | 11,558 | * | ||||
Brian Lian, Ph.D., Director(7) | 11,558 | * | ||||
Richard W. Pascoe, Director(8) | 21,740 | * | ||||
Brian T. Dorsey, Former Senior Vice President, Chief Development Officer(9) | 7,530 | * | ||||
Neil Morton, Former Senior Vice President, Chief Business Officer(10) | 7,039 | * | ||||
All current executive officers and directors as a group (five persons)(11) | 3,137,960 | 15.48 | % |
Name and Address of Beneficial Owner | | | Number of Shares Beneficially Owned | | | Percentage of Class (%)(1) |
Directors and Named Executive Officer(2) | | | | | ||
Raj Mehra, Ph.D.(3) | | | 3,256,928 | | | 4.1% |
Daniel J. O’Connor, J.D., Director(4) | | | 54,666 | | | * |
Brian Lian, Ph.D., Director(4) | | | 54,666 | | | * |
Richard W. Pascoe, Director(5) | | | 56,404 | | | * |
Judith Dunn, Ph.D., Director(4) | | | 29,333 | | | * |
All current executive officer and directors as a group (five persons)(6) | | | 3,451,997 | | | 4.4% |
* |
(1) | Percentage ownership is calculated based on a total of |
(2) |
(3) | Represents (i) |
(4) |
Represents (i) 5,180 shares of Common Stock held directly by |
Comprised of shares beneficially owned by each of our directors, including Dr. Mehra, our Chairman, Chief Executive Officer, President & Interim Chief Financial Officer. |
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Section 16(a) of the Securities Exchange Act requires our executive officers, directors and persons who beneficially own greater than 10% of a registered class of its equity securities to file certain reports with the SEC with respect to ownership and changes in ownership of the Common Stock and our other equity securities.
To the Company’s knowledge, based solely on our review of the copies of such reports filed with the SEC, our officers, directors and greater than 10% stockholders timely complied with these Section 16(a) filing requirements during the fiscal year ended December 31, 2018.
13, 2021.
29
| | By Order of the Board of Directors, | |
| | ||
| | Raj Mehra, Ph.D. | |
| | Chief Executive Officer | |
| | ||
| | April 12, | |
| | New York, New York |
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| | ||
PROXY | | | PROXY |
| | | Address Changes/Comments: | | |
| | | | ||
| | | |
FOR ALL | | | WITHHOLD ALL | | | FOR ALL EXCEPT: |
FOR | | | AGAINST | | | ABSTAIN |
FOR | | | AGAINST | | | ABSTAIN |
FOR | | | AGAINST | | | ABSTAIN |
FOR | | | AGAINST | | | ABSTAIN |
For address changes and/or comments, please check this box and write them on the back where indicated. |
Please sign exactly as your name(s) appear(s) hereon. |
When shares are held by joint tenants, both should sign. |
When signing as attorney, executor, administrator, trustee or corporation, please sign in full corporate name by president or other authorized person. If a partnership, please sign in partnership name by authorized person. |
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Signature (PLEASE SIGN WITHIN BOX) | | | Date | | | | | Signature (Joint Owners) | | | Date |
| | SEELOS THERAPEUTICS, INC. | ||||
| | | | |||
| | By: | | | ||
| | Name: | | | Raj Mehra, Ph.D. | |
| | Title: | | | President and Chief Executive Officer |
1. | The jurisdiction where the Non-Delaware Corporation first formed is the State of Nevada. |
2. | The jurisdiction immediately prior to filing this Certificate is the State of Nevada. |
3. | The date the Non-Delaware Corporation first formed is October 20, 1987. |
4. | The name of the Non-Delaware Corporation immediately prior to filing this Certificate is Seelos Therapeutics, Inc. |
5. | The name of the Corporation as set forth in the Certificate of Incorporation is Seelos Therapeutics, Inc. |
| | By: | | | ||
| | Name: | | | Raj Mehra, Ph.D. | |
| | Title: | | | President and Chief Executive Officer |
A. | COMMON STOCK. |
B. | PREFERRED STOCK. |
| | Seelos Therapeutics, Inc. | ||||
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| | By: | | | ||
| | | | Name: Raj Mehra, Ph.D. Title: Chief Executive Officer & President |
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REGISTERED OFFICE. |
OTHER OFFICES. |
PLACE OF MEETINGS. |
ANNUAL MEETING. |
SPECIAL MEETING. |
ADVANCE NOTICE PROCEDURES FOR BUSINESS BROUGHT BEFORE A MEETING. |
ADVANCE NOTICE PROCEDURES FOR NOMINATIONS OF DIRECTORS. |
NOTICE OF STOCKHOLDERS’ MEETINGS. |
MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. |
QUORUM. |
ADJOURNED MEETING; NOTICE. |
CONDUCT OF BUSINESS. |
VOTING. |
STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. |
RECORD DATE FOR STOCKHOLDER NOTICE; VOTING. |
PROXIES. |
LIST OF STOCKHOLDERS ENTITLED TO VOTE. |
POSTPONEMENT, ADJOURNMENT AND CANCELLATION OF MEETING. |
INSPECTORS OF ELECTION. |
POWERS. |
NUMBER OF DIRECTORS. |
ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS. |
RESIGNATION AND VACANCIES. |
PLACE OF MEETINGS; MEETINGS BY TELEPHONE. |
REGULAR MEETINGS. |
SPECIAL MEETINGS; NOTICE. |
QUORUM. |
BOARD ACTION BY CONSENT WITHOUT A MEETING. |
FEES AND COMPENSATION OF DIRECTORS. |
COMMITTEES OF DIRECTORS. |
COMMITTEE MINUTES. |
MEETINGS AND ACTION OF COMMITTEES. |
OFFICERS. |
APPOINTMENT OF OFFICERS. |
SUBORDINATE OFFICERS. |
REMOVAL AND RESIGNATION OF OFFICERS. |
VACANCIES IN OFFICES. |
REPRESENTATION OF SHARES OF OTHER ENTITIES. |
AUTHORITY AND DUTIES OF OFFICERS. |
MAINTENANCE OF RECORDS. |
EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS. |
STOCK CERTIFICATES; PARTLY PAID SHARES. |
MULTIPLE CLASSES OR SERIES OF STOCK. |
LOST CERTIFICATES. |
CONSTRUCTION; DEFINITIONS. |
DIVIDENDS. |
FISCAL YEAR. |
SEAL. |
TRANSFER OF STOCK. |
STOCK TRANSFER AGREEMENTS. |
REGISTERED STOCKHOLDERS. |
WAIVER OF NOTICE. |
NOTICE BY ELECTRONIC TRANSMISSION. |
DEFINITION OF ELECTRONIC TRANSMISSION. |
ACTIONS, SUITS AND PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION. |
ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. |
INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. |
NOTIFICATION AND DEFENSE OF CLAIM. |
ADVANCE OF EXPENSES. |
PROCEDURE FOR INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. |
REMEDIES. |
LIMITATIONS. |
SUBSEQUENT AMENDMENT. |
OTHER RIGHTS. |
PARTIAL INDEMNIFICATION. |
INSURANCE. |
SAVINGS CLAUSE. |
DEFINITIONS. |
Executed on , 2021 | | | ||||
| | Name: | | | Raj Mehra, Ph.D. | |
| | Title: | | | Secretary |