(Amendment No. )
☐ Preliminary Proxy Statement ☐ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) ☒ Definitive Proxy Statement ☐ Definitive Additional Materials ☐ Soliciting Material Pursuant to §240.14a-12
|
|
|
|
|
|
|
|
|
|
|
|
KALA PHARMACEUTICALS, INC.
☒ No fee required ☐ Fee paid previously with preliminary materials ☐ Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11 |
|
|
|
| |
|
| |
|
| |
|
|
|
Dear Stockholders:
You are cordially invited to attend
|
|
|
|
The Reverse Split Proposal was approved by the Board, at a ratio to be determined by the Board at a later date in its discretion, and requires the affirmative vote of holders of a majority of the outstanding shares of our Common Stock and Series D Preferred Stock, par value $0.001 per share (“Series D Preferred Stock”), entitled to vote at the Special Meeting on the Reverse Stock Split Proposal, voting together as a single class, to be approved. Stockholders are referred to the proxy statement for more detailed information with respect to the matters to be considered at the Special Meeting. After careful consideration, the Board recommends a vote “FOR” the Reverse Stock Split Proposal and “FOR” the Adjournment Proposal. | |
|
|
As noted above, our annual meetingSpecial Meeting will be a “virtual meeting” of stockholders, which will be conducted exclusively via the Internet at a virtual web conference. There will not be a physical meeting location, and stockholders will not be able to attend the annual meetingSpecial Meeting in person. This means you can attend the annual meetingSpecial Meeting online, vote your shares electronically during the annual meetingSpecial Meeting and submit questions online during the annual meetingSpecial Meeting by accessing www.virtualshareholdermeeting.com/KALA2022KALA2022SM shortly prior to the scheduled start of the meeting and entering the 16-digit control number found on the proxy card or voting instruction form or notice of availability of proxy materials.form. We believe that hosting a “virtual meeting” will enable greater stockholder attendance and participation from any location around the world.
Stockholders of record at
We have elected to provide access to our proxy materials over the Internet under the Securities and Exchange Commission’s “notice and access” rules. We are mailing the Notice of Internet Availability of Proxy Materials for the Annual Meeting of Stockholders to be held on June 16,August 31, 2022, beginning on or about April 29, 2022, and it contains instructions on howSeptember 9, 2022. The Company’s proxy statement to access our proxy materials over the Internet. We believe that providing our proxy materials over the Internet expedites stockholders’ receipt of proxy materials, lowers costs and reduces the environmental impact of our annual meeting.
security holders is also available at www.proxyvote.com.
If your shares are held in the name of a broker, trust, bank or other nominee, and you receive notice of the Special Meeting through your broker or through another intermediary, please vote or complete and return the materials in accordance with the instructions provided to you by such broker or other intermediary or contact your broker directly in order to obtain a proxy issued to you by your nominee holder to attend the Special Meeting and vote online. Failure to do so may result in your shares not being eligible to be voted by proxy at the Special Meeting.
April 29,
TABLE OF CONTENTS
| | | Page | | |||
|
| | | | 2 | | |
| | | | 11 | | | |
| | | | 11 | | | |
| | | | 11 | | | |
| | | | 12 | | | |
| | | | 13 | | | |
| | | | 13 | | | |
| | | | 14 | | | |
| | | | 14 | | | |
| | | | 14 | | | |
| | | | 18 | | | |
| | | | 18 | | | |
| | | | 18 | | | |
| | | | 18 | | | |
| | | | 19 | | | |
| | | | 19 | | | |
| | | | 19 | | | |
| | | | 19 | | | |
| | | | 19 | | | |
| | | | 19 | | | |
| | | | 20 | | | |
| | | | 21 | | | |
| | | | 21 | | | |
| | | | 21 | | | |
| | | | 22 | | | |
| |||||||
| |||||||
| |||||||
| |||||||
| |||||||
| |||||||
| |||||||
| |||||||
| |||||||
| |||||||
| |||||||
| |||||||
|
| ||||||
| |||||||
| |||||||
|
| ||||||
| | | | 24 | | | |
| | | | 25 | | | |
| |||||||
|
| ||||||
|
| | A-1 | | |
2022 ANNUAL
In addition, unless the context otherwise requires, references to “stockholders” are to the holders of our common stock, par value $0.001 per share (“
Common Stock”) and our Series D Preferred Stock, par value $0.001 per share (“Series D Preferred Stock”).A copy
1
IMPORTANT INFORMATION ABOUT THE ANNUAL MEETING AND VOTING
|
|
|
|
|
|
|
|
Q.
Special Meeting?
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Q.
|
|
|
|
KALA2022SM.
|
|
am a beneficial owner of shares, can my brokerage firm vote my shares?
|
|
|
|
|
|
|
|
|
|
3
behalf according to your instructions. The proxy materials, as well as voting and revocation instructions, should have been forwarded to you by the bank, broker or other nominee that holds your shares. In order to vote your shares, you will need to follow the instructions that your bank, broker or other nominee provides you. The voting deadlines and availability of telephone and Internet voting for beneficial owners of shares held in “street name” will depend on the voting processes of the bank, broker or other nominee that holds your shares. Therefore, we urge you to carefully review and follow the voting instruction card and any other materials that you receive from that organization.
If you do not give instructions to your bank, broker or other nominee, your bank, broker or other nominee will still be able to vote your shares with respect to certain “discretionary” items. The ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm (Proposal 2) is considered a discretionary item. Accordingly, your bank, broker or other nominee may vote your shares in its discretion with respect to that matter even if you do not give voting instructions on Proposal 2. If they exercise this discretionary authority, no broker non-votes are expected to occur in connection with Proposal 2.
However, under applicable stock exchange rules that regulate voting by registered brokerage firms, the election of our nominees to serve as Class II directors (Proposal 1) is not considered to be a discretionary item. Accordingly, if you do not give your broker voting instructions on Proposal 1, your broker may not vote your shares with respect to this matter and your shares will be counted as “broker non-votes” with respect to this proposal. A “broker non-vote” occurs when shares held by a bank, broker or other nominee are not voted with respect to a particular proposal because the bank, broker or other nominee does not have or did not exercise discretionary authority to vote on the matter and has not received voting instructions from its client.
If your shares are held in “street name”, you will receive instructions from your bank, broker or other nominee explaining how you can attend the annual meeting online and vote your shares online during the annual meeting.
|
|
|
|
|
|
|
|
|
|
|
|
4
revoking any previously submitted voting instructions if you follow the procedures described under “How“How do I vote?vote?” above.
|
|
|
|
|
|
|
|
A nominee will be elected as a director at the annual meeting ifSpecial Meeting for determining a quorum at the nominee receivesmeeting. An abstention is not an “affirmative vote” but an abstaining stockholder is considered “entitled to vote” at the Special Meeting. Accordingly, an abstention will
Shares withheld from voting and “broker non-votes” will not be counted as votes in favor of such matter and will also not be counted as shares voting onagainst Proposal 1. Accordingly, shares withheld and “broker non-votes”An abstention will have no effect on Proposal 2 because an abstention does not count as a vote cast.
For information about what happens ifinstructions provided. Attendance at the Special Meeting alone will not revoke your proxy.
Proposal 2—Ratificationquorum and hold the Special Meeting?
the shares of the capital stock of the Company issued and outstanding and entitled to vote at the Special Meeting, present in person, present by means of remote communication, or represented by proxy, constitutes a quorum for the transaction of business at the Special Meeting. For purposes of determining whether a quorum exists, we count as present any shares that are voted over the Internet, by telephone, by completing and submitting a proxy card by mail or that are represented virtually at the meeting. Further, for purposes of establishing a quorum, we will count as present shares that a stockholder holds even if the stockholder votes to abstain or only votes on one of the proposals. In addition, we will count as present shares held in “street name” by banks, brokers or other nominees who indicate on their proxies that they do not have authority to vote those shares. If a quorum is not present, we expect to adjourn the Special Meeting until we obtain a quorum.
Shares that abstain from votingReverse Stock Split?
5
|
|
|
|
The nominating and corporate governance committee will evaluate the best interestscurrent business of the companyCompany. Following the Reverse Stock Split, we will continue to operate in the biopharmaceutical sector.
The board of directors will then decide whether to accept, reject or modify the nominating and corporate governance committee’s recommendation, considering the factors considered by the nominating and corporate governance committee and such additional factors the board of directors believes to be relevant. After the board’s determination, we will promptly publicly disclose the board’s decision regarding the action to be taken with respect to such director’s resignation, and if such resignation is rejected by the board, such disclosure will include the rationale behind the decision. If the director’s resignation is accepted, then the board of directors may fill the resulting vacancy in accordance with our amended and restated bylaws or may decrease the size of our board of directors.
Our Corporate Governance Guidelines are available on the “Investors—Corporate Governance” section of our website, which is located at www.kalarx.com.
collecting voting instructions.
|
|
Q.AreSpecial Meeting, if necessary, to solicit additional proxies if there otherare insufficient votes at the time of the Special Meeting to approve the Reverse Stock Split Proposal.
|
|
6
accounting firm. Ifour stockholders have any other matters are properly presenteddissenters’ or appraisal rights or cumulative voting rights with respect to the matter to be voted on at the annual meeting, the persons named in the accompanying proxy intend to vote, or otherwise act, in accordance with their judgment on the matter.
Special Meeting.
|
|
|
|
|
|
7
TableIf you wish to submit a question, on the day of Contents
BOARD
Our boardincorporation currently authorizes the Company to issue a total of directors is authorized125,000,000 shares of capital stock, consisting of 120,000,000 shares of Common Stock, par value $0.001 per share, and 5,000,000 shares of preferred stock, par value $0.001 per share.
Dr. Grunberg will not stand for re-election at the 2022 annual meeting of stockholders.
Set forth below are the names of and certain information for each memberper share market price of our board of directors, includingCommon Stock to meet the nomineesminimum per share bid price requirements for election as Class II directors, as of April 20, 2022. The information presented includes each director’s and nominee’s principal occupation and business experience for the past five years, and the names of other public companies of which he has served as a director during the past five years. The information presented below regarding the specific experience, qualifications, attributes and skills of each director and nominee led our nominating and corporate governance committee and our board of directors to conclude that he or she should serve as a director. In addition, we believe that all of our directors and nominees possess the attributes or characteristics described in “Corporate Governance Matters—Director Nomination Process” that the nominating and corporate governance committee expects
8
of each director. There are no family relationships among any of our directors, nominees for director or executive officers.
|
|
|
|
|
|
|
| ||
|
|
|
|
|
|
|
| ||
|
|
|
|
|
|
|
|
|
|
|
|
| ||
|
|
|
|
|
|
|
| ||
|
|
| ||
|
|
|
|
|
|
|
|
|
|
|
|
| ||
|
|
|
Andrew I. Koven has served as a member of our board of directors since September 2017 and as our Lead Independent Director since December 2018. Mr. Koven was, until his retirement in January 2019, the President and Chief Business Officer of Aralez Pharmaceuticals Inc., or Aralez, a public specialty pharmaceutical company, and served in that role with the company’s predecessor, Pozen Inc., or Pozen, commencing in June 2015. Prior to joining Pozen, Mr. Koven served as Executive Vice President, Chief Administrative Officer and General Counsel of Auxilium Pharmaceuticals Inc., a public specialty biopharmaceutical company, from February 2012 until January 2015, when it was acquired by Endo International plc. Mr. Koven served as President and Chief Administrative Officer and a member of the board of directors of Neurologix, Inc., a company focusedcontinued listing on the development of multiple innovative gene therapy development programs, from September 2011 to November 2011. Before Neurologix, Mr. Koven served as Executive Vice President and Chief Administrative and Legal Officer of Inspire Pharmaceuticals, Inc., a public specialty pharmaceutical company, from July 2010 until May 2011 when it was acquired by Merck & Co., Inc. Previously, Mr. Koven served as Executive Vice President, General Counsel and Corporate Secretary of Sepracor Inc. (now Sunovion), a public specialty pharmaceutical company, from March 2007 until February 2010 when it was acquired by Dainippon Sumitomo Pharma Co., Ltd. Prior to joining Sepracor, Mr. Koven served as Executive Vice President, General Counsel and Corporate Secretary of Kos Pharmaceuticals, Inc., a public specialty pharmaceutical company, from August 2003 until its acquisition by Abbott Laboratories (now AbbVie) in December 2006. Mr. Koven began his career in the pharmaceutical industry first as an Assistant General Counsel and then as Associate General Counsel at Warner-Lambert Company from 1993 to 2000, followed by his role as Senior Vice President and General Counsel at Lavipharm Corporation from 2000 to 2003. Mr. Koven also currently serves on the board of NeuroBo Pharmaceuticals, Inc., a publicly-traded company, and has served as its chairperson since January 2022. From 1986 to 1992 he was a corporate associate at Cahill, Gordon & Reindel in New York. From 1992 to 1993 he served as Counsel, Corporate and Investment Division, at The Equitable Life Assurance Society of the U.S. Mr. Koven holds a Master of Laws (LL.M.) Degree from Columbia University School of Law and a Bachelor of Laws (LL.B.) Degree and Bachelor of Arts Degree in Political Science from Dalhousie University.Nasdaq. We believe that Mr. Koven’s extensive experiencea range of Reverse Stock Split ratios provides us with the most flexibility to achieve the desired results of the Reverse Stock Split. The Reverse Stock Split is not intended as, and will not have the effect of, a “going private transaction” covered by Rule 13e-3 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Reverse Stock Split is not intended to modify the rights of existing stockholders in any material respect.
9
Gregory D. Perry has served as a member of our board of directors since February 2018. Mr. Perry has served as Chief Financial OfficerCommon Stock. The actual timing for Finch Therapeutics Group, Inc., a public therapeutics company focused on the microbiome, since June 2018, and has announced his retirement effective April 30, 2022. Previously, he served as Chief Financial and Administrative Officer of Novelion Therapeutics Inc., or Novelion, a public biopharmaceutical company, from November 2016 to December 2017. Prior to this, Mr. Perry was Chief Financial Officer of Aegerion Pharmaceuticals, Inc., a public biopharmaceutical company, from July 2015 until its merger with Novelion in November 2016. Prior to that, he served as Chief Financial and Business Officer of Eleven Biotherapeutics, Inc., a public company, from January 2014 to June 2015. Before joining Eleven Biotherapeutics, Mr. Perry served as the Interim Chief Financial Officer of InVivo Therapeutics, a public biotechnology company, from September 2013 to December 2013, and prior to that he served as the Senior Vice President and Chief Financial Officer of ImmunoGen, Inc., a public biotechnology company, from 2009 until he was promoted in 2011 to Executive Vice President and Chief Financial Officer, a role he held until 2013. Before that, he was the Chief Financial Officer of Elixir Pharmaceuticals. Mr. Perry previously was Senior Vice President and Chief Financial Officer of Transkaryotic Therapies. He has also held various financial leadership roles within PerkinElmer Inc., Domantis Ltd., Honeywell and General Electric. Since May 2016, Mr. Perry has served on the board of directors of Merus N.V., a public clinical-stage immuno-oncology company, including as Chair of its Audit Committee. From December 2011 to February 2016, Mr. Perry served on the board of directors of Ocata Therapeutics, a public biotechnology company, including as Chair of its Audit Committee and a member of its Compensation Committee, until it was acquired by Astellas Pharma Inc. Mr. Perry received a B.A. in Economics and Political Science from Amherst College. We believe that Mr. Perry’s experience in the biopharmaceutical industry, including his specific experience in financial leadership roles in biopharmaceutical companies, qualifies him to serve as a member of our board of directors.
Mark Iwicki has served as our Chief Executive Officer and Chairman of our board of directors since September 2015. Mr. Iwicki previously served as our President from August 2017 to December 2021 and as Executive Chairman of our board of directors from April 2015 to September 2015. Prior to joining us, Mr. Iwicki served as President and Chief Executive Officer of Civitas Therapeutics, Inc., or Civitas, a biopharmaceutical company, from January 2014 to November 2014. Prior to Civitas, Mr. Iwicki served as President and Chief Executive Officer at Blend Therapeutics, Inc., or Blend, a biopharmaceutical company, from December 2012 to January 2014. Prior to Blend, Mr. Iwicki was President and Chief Executive Officer of Sunovion Pharmaceuticals Inc. (formerly Sepracor Inc.), or Sunovion, a pharmaceutical company. Mr. Iwicki was at Sepracor/Sunovion from October 2007 to June 2012. Prior to joining Sepracor Inc., Mr. Iwicki was Vice President and Business Unit Head at Novartis Pharmaceuticals Corporation, a biopharmaceutical company. He was at Novartis from March 1998 to October 2007. Prior to that, Mr. Iwicki held management positions at Astra Merck Inc. and Merck & Co., Inc. In addition to serving on our board of directors, Mr. Iwicki also currently serves on the boards of Aerovate Therapeutics, Inc., Merus N.V. and Akero Therapeutics, Inc., and formerly served on the board of Aimmune Therapeutics, Inc. and Pulmatrix Inc., all publicly-traded companies. Mr. Iwicki holds a B.S. in Business Administration from Ball State University and an M.B.A. from Loyola University. We believe that Mr. Iwicki’s extensive experience as a pharmaceutical industry leader managing all stages of drug development and commercialization in multiple therapeutic areas qualifies him to serve as a member of our board of directors.
Mark S. Blumenkranz, M.D., MMS, has served as a member of our board of directors since November 2021. Dr. Blumenkranz has served as the HJ Smead Professor Emeritus in the Department of Ophthalmology at Stanford University since March 2019 and he previously served as the chairimplementation of the Department of Ophthalmology from 1997Reverse Stock Split would be determined by the Board based upon its evaluation as to 2015. Dr. Blumenkranz is a co-founder of Kedalion Therapeutics, Inc., or Kedalion, a venture-backed ophthalmic drug delivery companywhen such action would be most advantageous to the Company and has served as its chief executive officer and chairman since September 2019. Dr. Blumenkranz is also a founder and has served as managing partner of Lagunita Biosciences LLC, an early-stage healthcare investment company and incubator, that is our current 5% beneficial stockholder since October 2015. Previously, he served on the board of directors of Combangio, Inc, a Lagunita portfolio clinical-stage biotechnology company, from February 2014 through the closing of its acquisition by us in November 2021. He currently serves on the board of directors of Kedalion, Iveric Bio, Inc., a publicly traded ophthalmic biopharmaceutical company, BVI Medical, Inc., a privately held
10
ophthalmic and microsurgical products company, and One Medical, a publicly traded primary care platform and digital health company. He previously served on the board of directors of Adverum Biotechnologies, Inc., a publicly traded ocular gene therapy company. He is a past presidentstockholders. Notwithstanding approval of the American University ProfessorsReverse Stock Split Proposal by our stockholders, the Board will have the sole authority to elect whether or not and when to amend our restated certificate of Ophthalmology,incorporation to effect the Retina Society,Reverse Stock Split. If the Macula Society, andReverse Stock Split Proposal is approved by our stockholders, the Board will make a Fellow Emeritus ofdetermination as to whether effecting the Corporation of Brown University. Dr. Blumenkranz holds an A.B.Reverse Stock Split is in Biology, Master’s Degree in Biochemical Pharmacology, and M.D. from Brown University. We believe that Dr. Blumenkranz’s experience in the ophthalmology field qualifies him to serve as a member of our board of directors.
C. Daniel Myers has served as a member of our board of directors since October 2021. Mr. Myers served as the Chief Executive Officer of MediPrint Ophthalmics, Inc. (formerly Leo Lens Pharma), a private eye-care company, from April 2020 to April 2022. Previously, Mr. Myers co-founded Alimera Sciences, Inc., or Alimera, a publicly traded pharmaceutical company, and served as its Chief Executive Officer from 2003 until January 2019. Before co-founding Alimera, Mr. Myers was an initial employee of Novartis Ophthalmics (formerly CIBA Vision Ophthalmics), a pharmaceutical company, and served as its Vice President of sales and marketing from 1991 to 1997 and as President from 1997 to 2003. Mr. Myers has served as a director of Alimera since 2003 and has served as chairman of its board of directors since January 2019. In addition, Mr. Myers served on the board of directors of Ocular Therapeutix, Inc., a publicly traded biopharmaceutical company, from 2009 to 2012. Mr. Myers holds a B.S. in Industrial Management from the Georgia Institute of Technology. We believe that Mr. Myers’ experience in the biopharmaceutical industry, including his specific experience with ophthalmology pharmaceutical companies, qualifies him to serve as a member of our board of directors.
Robert Paull has served as a member of our board of directors since July 2009. Mr. Paull was a co-founder of, and since 2014 has been a Venture Partner at, Lux Capital Management, or Lux Capital, where he focuses on healthcare ventures. Mr. Paull has served as an Advisor to Outsized Ventures, an early stage venture capital fund, since December 2021. In addition, Mr. Paull served as our founding Chief Executive Officer, President and Treasurer from July 2009 to June 2012. Mr. Paull also served as founding Chief Executive Officer of Genocea Biosciences Inc., a vaccine discovery and development company, from August 2006 to February 2009, and was the co-founder of Lux Research, Inc., an emerging technology market research and consulting firm, which was founded in January 2004. From January 2018 to December 2020, Mr. Paull was the founding Chief Executive Officer of Mahana Therapeutics, Inc., a digital therapeutics company. Mr. Paull holds a B.S. in Architecture from the University of Virginia. We believe that Mr. Paull’s extensive experience guiding and investing in healthcare ventures qualifies him to serve as a member of our board of directors.
Howard B. Rosen has served as a member of our board of directors since January 2014. Since 2008, Mr. Rosen has served as a consultant to several companies in the biotechnology industry. He has served at Stanford University as an adjunct professor in Chemical Engineering since 2021 and as a lecturer in Management since 2011, and he previously served as a lecturer in Chemical Engineering from 2009 until 2021. Mr. Rosen served as Chief Executive Officer of AcelRx Pharmaceuticals, Inc., or AcelRx, a public specialty pharmaceutical company developing products for pain relief, from April 2016 to March 2017, and Interim Chief Executive Officer from April 2015 to March 2016. Mr. Rosen also served as Interim President and Chief Executive Officer of Pearl Therapeutics, Inc. from June 2010 to March 2011. From 2004 to 2008, Mr. Rosen was Vice President of Commercial Strategy at Gilead Sciences, Inc., a biopharmaceutical company. From 2003 until 2004, Mr. Rosen was President of ALZA Corporation, a pharmaceutical and medical systems company that merged in 2001 with Johnson & Johnson, a global healthcare company. Prior to that, from 1994 until 2003, Mr. Rosen held various positions at ALZA Corporation. Mr. Rosen is a member of the board of directors of AcelRx and also served on the board of directors of Alcobra, Ltd., a public pharmaceutical company, until November 2017. Mr. Rosen is also currently a member of the board of directors of private companies, including Firecycte Therapeutics, Inc., Hammerton, Inc., Aria Pharmaceuticals, Inc., Hopewell Therapeutics, Inc. and Entrega, Inc., and was a member of the board of directors of Metera Pharmaceuticals, Inc. from 2018 to 2020. Mr. Rosen holds a B.S. in Chemical Engineering from Stanford University, an M.S. in Chemical Engineering from the Massachusetts Institute of Technology and an M.B.A. from the Stanford Graduate School of Business where he was an Arjay Miller Scholar and a Henry Ford II Scholar. We believe that Mr. Rosen’s experience in the biopharmaceutical
11
industry, including his specific experience with the development and commercialization of pharmaceutical products, qualifies him to serve as a member of our board of directors.
Our board of directors believes that good corporate governance is important to ensure that our company is managed for the long-term benefit of stockholders. This section describes key corporate governance guidelines and practices that our board of directors has adopted. Complete copies of our corporate governance guidelines, committee charters and code of conduct are available on the “Investors—Corporate Governance” section of our website, which is located at www.kalarx.com. Alternatively, you can request a copy of any of these documents by writing us at Kala Pharmaceuticals, Inc., 1167 Massachusetts Avenue, Arlington, Massachusetts 02476, Attention: General Counsel.
Corporate Governance Guidelines
Our board of directors has adopted corporate governance guidelines to assist in the exercise of its duties and responsibilities and to serve the best interests of our companythe Company and our stockholders. These guidelines, which provide a framework forstockholders in light of, among other things, the conductCompany’s ability to increase the trading price of our boardCommon Stock to meet the minimum stock price standards of directors’ business, provideNasdaq without effecting the Reverse Stock Split, the per share price of the Common Stock immediately prior to the Reverse Stock Split and the expected stability of the per share price of the Common Stock following the Reverse Stock Split. If the Board determines that among other things:
In June 2021, our boardit is in the best interests of directorsthe Company and its stockholders to effect the Reverse Stock Split, it will hold a Board meeting to determine the ratio of the Reverse Stock Split. For additional information concerning the factors the Board will consider in deciding whether to effect the Reverse Stock Split, see “— Determination of the Reverse Stock Split Ratio” and “— Board Discretion to Effect the Reverse Stock Split.”
State of the State of Delaware, which will become effective upon its filing;
Mr. Iwicki serves, that the Reverse Stock Split Amendment is subject to revision to include such changes as Chairmanmay be required by the office of our boardthe Secretary of State of the State of Delaware and as our Chief Executive Officer. Our board believes that combining the Chairman and Chief Executive Officer positions fosters clear accountability, effective decision-making and alignment of corporate strategy and is the appropriate leadership structure for us at this time. Our board believes that Mr. Iwicki’s combined role of Chairman and Chief Executive Officer promotes effective execution of strategic goals and facilitates information flow between management and our board. Mr. Koven has served as our Lead Independent Director since December 2018. As our Lead Independent Director, Mr. Koven’s responsibilities include the following, among others:
12
We believe this structure represents an appropriate allocation of roles and responsibilities for our company at this time. Our nominating and corporate governance committee evaluates our board leadership structure from time to time and may recommend further alterations of this structure in the future.
Board Determination of Independence
Applicable Nasdaq rules require a majority of a listed company’s board of directors to be comprised of independent directors within one year of listing. In addition, the Nasdaq rules require that, subject to specified exceptions, each member of a listed company’s audit, compensation and nominating and corporate governance committees be independent. Audit committee members must also satisfy the independence criteria set forth in Rule 10A-3 under the Exchange Act and compensation committee members must also satisfy the independence criteria set forth in Rule 10C-1 under the Exchange Act. Under applicable Nasdaq rules, a director will only qualify as an “independent director” if, in the opinion of the listed company’s board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In order to be considered independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors, or any other board committee, accept, directly or indirectly, any consulting, advisory or other compensatory fee from the listed company or any of its subsidiaries or otherwise be an affiliated person of the listed company or any of its subsidiaries. In order to be considered independent for purposes of Rule 10C-1, the board must consider, for each member of a compensation committee of a listed company, all factors specifically relevant to determining whether a director has a relationship to such company which is material to that director’s ability to be independent from management in connection with the duties of a compensation committee member, including, but not limited to: (1) the source of compensation of the director, including any consulting advisory or other compensatory fee paid by such company to the director; and (2) whether the director is affiliated with the company or any of its subsidiaries or affiliates.
In April 2022, our board of directors undertook a review of the composition of our board of directors and its committees and the independence of each then-sitting director. Based upon information requested from and provided by each director concerning his background, employment and affiliations, including family relationships, our board of directors has determined that each of our directors, with the exception of Mark Iwicki, is an “independent director” as defined under applicable Nasdaq rules. In March 2021, our board of directors also previously determined that Rajeev Shah, a former director who served during part of the year ended December 31, 2021, was an “independent director” as defined under applicable Nasdaq rules prior to his resignation in October 2021. In making such determinations, our board of directors considered the relationships that each such non-employee director has with our company and all other facts and circumstances that our board of directors deemed relevant in determining his or her independence, including the beneficial ownership of our capital stock by each non-employee director. Mr. Iwicki is not an independent director under these rules because he is our Chief Executive Officer.
13
Board of Director Meetings and Attendance
Our board of directors held twelve meetings during the year ended December 31, 2021, or fiscal 2021. During fiscal 2021, each of the directors then in office attended at least 75% of the aggregate of the number of board of director meetings and the number of meetings held by all committees of the board of directors on which such director then served.
Our corporate governance guidelines provide that directors are expected to attend the annual meeting of stockholders. All of our directors then in office attended our 2021 annual meeting of stockholders virtually.
Communicating with the Independent Directors
The board will give appropriate attention to written communications that are submitted by stockholders, and will respond if and as appropriate. The lead independent director, subject to advice and assistance from the company’s general counsel or an individual performing a similar function, if any, or the company’s chief financial officer, or an individual performing a similar function, is primarily responsible for monitoring communications from stockholders and for providing copies or summaries to the other directors as he considers appropriate.
Communications are forwarded to all directors if they relate to important substantive matters and include suggestions or comments that the lead independent director, or chairman of the nominating and corporate governance committee, as applicable, considers to be important for the directors to know. In general, communications relating to corporate governance and corporate strategy are more likely to be forwarded than communications relating to ordinary business affairs, personal grievances and matters as to which we receive repetitive or duplicative communications.
Stockholders who wish to send communications on any topic to our board of directors should address such communications to Andrew I. Koven, Lead Independent Director, c/o Kala Pharmaceuticals, Inc., 1167 Massachusetts Avenue, Arlington, Massachusetts 02476.
Committees of the Board of Directors
We have established an audit committee, a compensation committeedeems necessary and a nominating and corporate governance committee. Each of these committees operates under a charter that has been approved by our board of directors. A copy of each committee’s charter can be found under the “Investors—Corporate Governance” section of our website, which is located at www.kalarx.com.
advisable. The members of our audit committee are Dr. Grunberg, Mr. Rosen, Mr. Paull and Mr. Perry. Mr. Perry is the chair of the audit committee. On October 15, 2021, Dr. Grunberg was appointed to our audit committee. Prior to this, the members of our audit committee were Mr. Rosen, Mr. Paull and Mr. Perry, and Mr. Perry served as the chair of the audit committee. Our audit committee’s responsibilities include:
14
All audit and non-audit services, other than de minimis non-audit services, to be provided to us by our independent registered public accounting firm must be approved in advance by our audit committee. In 2020, the audit committee delegated to its chair authority to pre-approve any audit or non-audit services to be provided to us by our independent registered public accounting firm. By the terms of the delegated authority, the chair must report on any such approval of services pursuant to such authority at the first regularly scheduled meeting of the audit committee following such approval.
Our board of directors has determined that Mr. Perry is an “audit committee financial expert” as defined in applicable SEC rules. We believe that each member of our audit committee possesses the financial sophistication required for audit committee members under Nasdaq rules and that the composition of our audit committee meets the requirements for independence under current Nasdaq and SEC rules and regulations. The audit committee held four meetings during fiscal 2021.
The members of our compensation committee are Dr. Blumenkranz, Mr. Myers, Mr. Koven and Mr. Rosen. Mr. Koven is the chair of the compensation committee. On October 15, 2021, the compensation committee was reconstituted to add Mr. Myers and Mr. Rosen. Prior to the reconstitution of our compensation committee, the members of our compensation committee were Mr. Shah, Mr. Koven and Dr. Grunberg, and Mr. Shah served as the chair of the compensation committee. On March 10, 2022, Dr. Blumenkranz was appointed to our compensation committee. Our compensation committee’s responsibilities include:
15
We believe that the composition of our compensation committee meets the requirements for independence under current Nasdaq and SEC rules and regulations. The compensation committee held five meetings during fiscal 2021.
Nominating and Corporate Governance Committee
The members of our nominating and corporate governance committee are Mr. Paull, Mr. Myers, and Mr. Koven. Mr. Paull is the chair of the nominating and corporate governance committee. On October 15, 2021, the nominating and corporate governance committee was reconstituted. Prior to the reconstitution of our nominating and corporate governance committee, the members of our nominating and corporate governance committee were Mr. Paull, Mr. Koven and Mr. Shah, and Mr. Paull served as the chair of the nominating and corporate governance committee. Our nominating and corporate governance committee’s responsibilities include:
We believe that the composition of our nominating and corporate governance committee meets the requirements for independence under current Nasdaq and SEC rules and regulations. The nominating and corporate governance committee held five meetings during fiscal 2021.
The process followed by our nominating and corporate governance committee to identify and evaluate director candidates includes requests to board members and others for recommendations, meetings from time to time to evaluate biographical information and background material relating to potential candidates and interviews of selected candidates by members of the nominating and corporate governance committee and our board of directors.
In considering whether to recommend to our board of directors any particular candidate for inclusion in our board of directors’ slate of recommended director nominees, including candidates recommended by stockholders, the nominating and corporate governance committee of our board of directors applies the criteria set forth in our corporate governance guidelines. These criteria include the candidate’s integrity, business acumen, knowledge of our business and industry, the ability to act in the interests of all stockholders and lack of conflicts of interest.
The director biographies on pages 9 to 11 of this proxy statement indicate each nominee’s experience, qualifications, attributes and skills that led our nominating and corporate governance committee and our board of directors to conclude he should continue to serve as a director. Our nominating and corporate governance committee and our board of directors believe that each of the nominees has the individual attributes and characteristics required of each of our directors, and the nominees as a group possess the skill sets and specific experience desired of our board of directors as a whole.
Our nominating and corporate governance committee does not have a policy (formal or informal) with respect to diversity, but believes that our board, taken as a whole, should embody a diverse set of skills, experiences and
16
backgrounds. In this regard, the nominating and corporate governance committee also takes into consideration the diversity (for example, with respect to gender, race and national origin) of our board members. While the nominating and corporate governance committee does not make any particular weighting of diversity or any other characteristic in evaluating nominees and directors, the committee will deem diversity an important criteria to consider in evaluating future nominees and directors.
Stockholders may recommend individuals to our nominating and corporate governance committee for consideration as potential director candidates by submitting their names, together with appropriate biographical information and background materials, to Kala Pharmaceuticals, Inc., Attention: Nominating and Corporate Governance Committee, 1167 Massachusetts Avenue, Arlington, Massachusetts 02476. Assuming that appropriate biographical and background material has been provided on or before the dates set forth in this proxy statement under the heading “Other Matters – Stockholder Proposals for our 2023 Annual Meeting of Stockholders”, the committee will evaluate stockholder-recommended candidates by following substantially the same process, and applying substantially the same criteria, as it follows for candidates submitted by others. If the board determines to nominate a stockholder-recommended candidate and recommends his or her election, then his or her name will be included in our proxy card for the next annual meeting.
Stockholders also have the right under our by-laws to directly nominate director candidates, without any action or recommendation on the part of the nominating and corporate governance committee or our board of directors, by following the procedures set forth under “Other Matters—Stockholder Proposals for our 2023 Annual Meeting of Stockholders.”
From February 2016 to March 2018, Eric L. Trachtenberg, our General Counsel and Chief Compliance Officer, served as General Counsel, Chief Compliance Officer and Corporate Secretary of Aralez. Prior to that, Mr. Trachtenberg served in similar capacities for Pozen, Aralez’s predecessor, from June 2015 to February 2016. In addition, Mr. Koven was, until his retirement on January 30, 2019, the President and Chief Business Officer of Aralez and served in that role with the company’s predecessor, Pozen, commencing on June 1, 2015. On August 10, 2018, Aralez and its affiliates each filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code.
Our board of directors oversees our risk management processes directly and through its committees. Our management is responsible for risk management on a day-to-day basis. The role of our board of directors and its committees is to oversee the risk management activities of management. Our board of directors fulfills this duty by discussing with management the policies and practices utilized by management in assessing and managing risks and providing input on those policies and practices. In general, our board of directors oversees risk management activities relating to business strategy, acquisitions, capital allocation, organizational structure and certain operational risks; our audit committee oversees risk management activities related to financial controls and legal and compliance risks; our compensation committee oversees risk management activities relating to our compensation policies and practices; and our nominating and corporate governance committee oversees risk management activities relating to the composition of our board of directors and management succession planning. Each committee reports to the full board of directors on a regular basis, including reports with respect to the committee’s risk oversight activities as appropriate. In addition, since risk issues often overlap, committees from time to time request that the full board of directors discuss particular risks.
Code of Business Conduct and Ethics
We have adopted a written code of business conduct and ethics that applies to our directors, officers and employees, including our principal executive officer and principal financial officer. A copy of the code is available on the “Investors—Corporate Governance” section of our website, which is located at www.kalarx.com. Our board of directors
17
is responsible for overseeing the code of business conduct and ethics and must approve any waivers of the code for directors, officers and employees. If we make any substantive amendments to, or grant any waivers from, the code of business conduct and ethics for any officer or director, we will disclose the nature of such amendment or waiver on our website or in a current report on Form 8-K.
Policies and Procedures for Related Person Transactions
Our board of directors has adopted written policies and procedures for the review of any transaction, arrangement or relationship in which our company is a participant, the amount involved exceeds $120,000, and one of our executive officers, directors, director nominees or 5% stockholders, or their immediate family members, each of whom we refer to as a “related person,” has a direct or indirect material interest.
If a related person proposes to enter into such a transaction, arrangement or relationship, which we refer to as a “related person transaction,” the related person must report the proposed related person transaction to our general counsel or, if none, to our chief financial officer, or individual performing a similar function. The policy calls for the proposed related person transaction to be reviewed and, if deemed appropriate, approved by our audit committee. Whenever practicable, the reporting, review and approval will occur prior to entry into the transaction. If advance review and approval is not practicable, the committee will review, and, in its discretion, may ratify the related person transaction. The policy also permits the chairman of the audit committee to review and, if deemed appropriate, approve proposed related person transactions that arise between committee meetings, subject to ratification by the committee at its next meeting. Any related person transactions that are ongoing in nature will be reviewed annually.
A related person transaction reviewed under the policy will be considered approved or ratified if it is authorized by the audit committee after full disclosure of the related person’s interest in the transaction. As appropriate for the circumstances, the audit committee will review and consider:
Our audit committee may approve or ratify the transaction only if it determines that, under all of the circumstances, the transaction is in our best interests. Our audit committee may impose any conditions on the related person transaction that it deems appropriate.
In addition to the transactions that are excluded by the instructions to the SEC’s related person transaction disclosure rule, our board of directorsBoard has determined that the following transactions do not create a material direct or
18
indirect interest on behalf of related persons and, therefore, are not related person transactions for purposes of this policy:
The policy provides that transactions involving compensation of executive officers shall be reviewed and approved by our compensation committee in the manner specified in the compensation committee’s charter.
With respect to related person transactions, itamendment is the practice of our board of directors to consider the nature of and business reasons for such transactions, how the terms of such transactions compared to those which might be obtained from unaffiliated third parties and whether such transactions were otherwise fair toadvisable and in the best interests of or not contrary to,the Company and its stockholders and has submitted the amendment for consideration by our best interests.
In addition tostockholders at the compensation arrangements with directors and executive officers described elsewhere inSpecial Meeting.
Combangio Acquisition
On180 calendar days, or until November 15, 2021, we and our newly formed, direct wholly owned subsidiary, Ceres Merger Sub, Inc., or the Merger Subsidiary, entered into an Agreement and Plan of Merger, or the Merger Agreement, with Combangio and Fortis Advisors LLC, solely in its capacity as Combangio Equityholder Representative in connection21, 2022, to regain compliance with the Merger Agreement, pursuant toBid Price Requirement.
In connection with the Closing, we appointed Dr. Blumenkranz, a then-member of the board of directors of Combangio, to our board of directors, and we appointed Mr. Kharabi, the then-President and Chief Executive Officer of Combangio, as our Chief Business Officer.
19
The following table sets forth the consideration paid and payable by us to Dr. Blumenkranz, Mr. Kharabi, Lagunita Biosciences, LLC and Garland Investments, L.P. pursuant to the Merger Agreement.
| | | | | | | |
| | Cash | | | | | |
| | Consideration | | Initial | | Holdback | |
Name | | at Closing | | Shares | | Shares | |
Mark S. Blumenkranz | | $ | 29,675 | | 139,109(1) | | 18,656(1) |
Darius Kharabi | | $ | 437,703 | | 230,991(2) | | 64,666(2) |
Lagunita Biosciences, LLC (3) | | $ | 967,638 | | 4,536,045(4) | | 608,345(4) |
Garland Investments, L.P. | | $ | 7,329 | | 34,358(5) | | 4,607(5) |
In addition to the foregoing consideration, former equityholders of Combangio are entitled to receive from us contingent considerationdecrease in the form of cash and additional shares of our common stock upon the achievement of various milestones.
March 2020 Public Offering
On March 13, 2020, we issued and sold 16,000,000 shares of our common stock in an underwritten public offering at a public offering price of $7.89 per share, before expenses and underwriting discounts and commissions. On April 3, 2020, we issued and sold an additional 979,371 shares of our common stock in the offering on the same terms following the exercise by the underwriters of their option to purchase additional shares. In the offering, certain of our 5% stockholders and their affiliated entities purchased an aggregate of 10,826,879 shares of our common stock at a price per share of $7.89. The following table sets forth the aggregatetotal number of shares of our commonCommon Stock outstanding and increase the market price of our Common Stock. The Board intends to effect the Reverse Stock Split only if it believes that a decrease in the number of shares outstanding is in the best interests of the Company and our stockholders and is likely to improve the trading price of our Common Stock and improve the likelihood that we will be allowed to maintain our listing on Nasdaq. Accordingly, our Board approved the Reverse Stock Split as being in the best interests of the Company.
| | | | | |
| | Shares of | | | |
| | Common | | Aggregate | |
| | Stock | | Purchased | |
Purchaser |
| Purchase |
| Price | |
Entities affiliated with RA Capital(1) |
| 6,337,135 | | $ | 49,999,995 |
Entities affiliated Longitude Venture Partners(2) |
| 2,534,854 | |
| 19,999,998 |
Entities affiliated with OrbiMed Advisors LLC |
| 1,954,890 | |
| 15,424,082 |
20
Registration Rights
We are a party to a registration rights agreement, as amended, with certain holdersThe market price of our common stock, including Mr. Iwicki, certainCommon Stock is dependent upon our performance and other factors, some of which are unrelated to the number of shares outstanding. If the Reverse Stock Split is effected and the market price of our 5% stockholdersCommon Stock declines, the percentage decline as an absolute number and their affiliates and entities affiliated with someas a percentage of our directors. This registration rights agreement, as amended, provides these holdersoverall market capitalization may be greater than would occur in the right, subjectabsence of the Reverse Stock Split. Furthermore, the reduced number of shares that will be outstanding after the Reverse Stock Split could significantly reduce the trading volume and otherwise adversely affect the liquidity of our Common Stock.
Indemnification Agreements
Ouraware to accumulate our shares of Common Stock or obtain control of the Company, nor is it a plan by management to recommend a series of similar actions to our Board or our stockholders. Notwithstanding the decrease in the number of outstanding shares of Common Stock following the Reverse Stock Split, our Board does not intend for this transaction to be the first step in a “going private transaction” within the meaning of Rule 13e-3 of the Exchange Act.
EXECUTIVE AND DIRECTOR COMPENSATION
Certain information regarding our executive officers as of April 20, 2022 is set forth below.
|
|
|
|
|
|
|
| ||
|
|
| ||
|
|
| ||
|
|
| ||
|
|
| ||
|
|
| ||
|
|
|
Mark Iwicki is our Chief Executive Officer and Chairman of our Board of Directors. Please see “Board of Directors and Corporate Governance – Election of Directors” above for biographical information regarding Mr. Iwicki.
Todd Bazemore has served as our President since December 2021 and as our Chief Operating Officer since November 2017. Previously, he served as Executive Vice President and Chief Operating Officer of Santhera Pharmaceuticals (USA) Inc., or Santhera, a pharmaceutical company and subsidiary of Santhera Pharmaceuticals Holdings AG, from September 2016 until November 2017. Prior to joining Santhera, Mr. Bazemore served as Executive Vice President and Chief Commercial Officer of Dyax Corp., or Dyax, a biopharmaceutical company focused on orphan diseases, between April 2014 and January 2016, when Dyax was acquired by Shire plc. At Dyax, Mr. Bazemore oversaw all aspects of Dyax’s commercial department including sales, marketing, commercial analytics, market access and patient services. Between April 2012 and September 2013, he served as Vice President, Managed Markets at Sunovion Pharmaceuticals, Inc., or Sunovion (a subsidiary of Dainippon Sumitomo Pharma Co. Ltd.), a global biopharmaceutical company focused on serious medical conditions. Prior to that, Mr. Bazemore held several roles of increasing responsibility at Sunovion, including Vice President of Sales and Vice President of Respiratory Business Unit. Since October 2020, Mr. Bazemore has served on the board of directors of Pulmatrix Inc., a clinical stage publicly traded biopharmaceutical company. He received his Bachelor of Science from the University of Massachusetts, Lowell.
Kim Brazzell, Ph.D. has served as our Chief Medical Officer since February 2013 and as our Head of Research and Development since December 2021. Dr. Brazzell served as Chief Medical Officer of Mimetogen Pharmaceuticals, Inc., a clinical stage biotechnology company, from January 2012 until December 2015. Dr. Brazzell also held several executive positions at Inspire Pharmaceuticals, Inc., or Inspire, a specialty pharmaceutical company focusing on ophthalmic and respiratory products, including Executive Vice President of Medical and Scientific Affairs from 2010 to 2011, Executive Vice President and Head of Ophthalmology Business from 2009 to 2010, and Senior Vice President of Ophthalmic Research and Development from 2004 to 2008. Prior to joining Inspire, Dr. Brazzell served as Global Head of Clinical
21
R&D and Senior Vice President, U.S. R&D, of Novartis Ophthalmics AG from 2000 to 2004. Dr. Brazzell also served as Vice President, R&D at Ciba Vision Ophthalmics, Inc. and as Associate Director, R&D, at Alcon Laboratories, Inc. Dr. Brazzell received a B.S. in Pharmacy and a Ph.D. in Pharmaceutical Sciences from the University of Kentucky.
Darius Kharabi has served as our Chief Business Officer since November 2021. Mr. Kharabi formerly served as President and Chief Executive Officer of Combangio from August 2018 to November 2021, and is the co-founder of Lagunita Biosciences LLC, a biotechnology and medical investment company and incubator. From October 2015 to August 2018, he helped create and manage multiple Lagunita portfolio life-science companies, including xCella Biosciences, Kedalion and Combangio. From October 2015 through August 2019 he served as the Chief Operating Officer of xCella Biosciences and from October 2015 through November 2017 he served as the President of Kedalion. Prior to Lagunita, he served as Vice President, Corporate Development and International Sales at OrthAlign Inc., a commercial stage orthopedic surgery navigation company, where his responsibilities included the launchform of the KneeAlign® total knee arthroplasty navigation product line in North America, Europe, Asia and Australia. Mr. Kharabi started his career as a biotechnology licensing attorney at Wilson, Sonsini Goodrich & Rosati PC. He received his B.S. in Biochemistry from Georgetown University and his J.D. and M.B.A. degrees from Stanford University.
Mary Reumuth, C.P.A. has served as our Chief Financial Officer since July 2017, Senior Vice President, Finance from February 2017Reverse Stock Split Amendment attached to July 2017, our Vice President, Finance from December 2014 to February 2017, our Senior Director, Finance from February 2014 to December 2014, our Corporate Controller from February 2014 to July 2017 and as our Treasurer since February 2014. Prior to joining us, Ms. Reumuth acted as an independent financial consultant from November 2012 to January 2014 and, prior to that, served as Corporate Controller for Enobia Pharma Corp., or Enobia, a global biopharmaceutical company acquired by Alexion Pharmaceuticals, Inc., from May 2011 to June 2012. Prior to Enobia, Ms. Reumuth served as Director of Finance at Verenium Corporation, or Verenium, a biotechnology company, from December 2007 to March 2011. From 2001 to 2007, Ms. Reumuth held a variety of finance and accounting positions at Genzyme Corporation, or Genzyme, (now a Sanofi Company), and ILEX Oncology, Inc., or ILEX (acquired by Genzyme). Prior to ILEX, Ms. Reumuth was an auditor at Ernst & Young LLP. Since April 2022, Ms. Reumuth has served on the board of directors of Olink Holding AB, a publicly traded, commercial-stage biotechnology company. Ms. Reumuth earned her Bachelor’s degree in Business Administration from Texas A&M University—Corpus Christi, and is a Certified Public Accountant.
Eric L. Trachtenberg has served as our General Counsel and Corporate Secretary since April 2018 and as our Chief Compliance Officer since June 2018. Previously, he served as General Counsel, Chief Compliance Officer and Corporate Secretary of Aralez Pharmaceuticals Inc., or Aralez, a pharmaceutical company, from February 2016 to March 2018. Prior to that, he served in similar capacities for Pozen Inc., Aralez’s predecessor, from June 2015 to February 2016. Mr. Trachtenberg also formerly served as Deputy General Counsel at Auxilium Pharmaceuticals, Inc., a specialty biopharmaceutical company, from May 2012 through its acquisition by Endo Pharmaceuticals in February 2015. Prior to Auxilium, he was Vice President, General Counsel and Corporate Secretary of Enobia Pharma, Inc. from April 2011 through its acquisition by Alexion Pharmaceuticals in April 2012. Prior to that, Mr. Trachtenberg served as Vice President and Associate General Counsel of Sepracor Inc. (now known as Sunovion Pharmaceuticals Inc.) commencing in May 2007 and remained in that position following the acquisition of Sepracor Inc. by Dainippon Sumiztomo Pharma through April 2011. Mr. Trachtenberg also held a Senior Counsel position at Kos Pharmaceuticals, Inc. from July 2005 to April 2007 before its acquisition by Abbott. Mr. Trachtenberg began his career at Blank Rome LzLP. He holds a Juris Doctorate and Master of Business Administration from Temple University and a Bachelor of Science in Management from Tulane University.
The following discussion relates to the compensation of our Chief Executive Officer, Mark Iwicki, our President and Chief Operating Officer, Todd Bazemore, and our Head of Research and Development and Chief Medical Officer , Kim Brazzell, Ph.D. for the periods presented. These three individuals are collectively referred to in this proxy statement as Annex A. The exact timing of the filing of the Reverse Stock Split Amendment will be determined by the Board based upon its evaluation of when such action will be most advantageous to the Company and our named executive officers. Each year,stockholders. The Board reserves the right, notwithstanding stockholder approval and without further action by our compensation committeestockholders, to elect not to proceed with the Reverse Stock Split if, at any time prior to filing such Reverse Stock Split Amendment, the Board, in its sole discretion, determines that it is no longer in the best interests of the Company and boardour stockholders. The Board currently intends to effect the Reverse Stock Split. If our Board does not implement the Reverse Stock Split prior to the one-year anniversary of directors reviewthe date on which the Reverse Stock Split is approved by the Company’s stockholders at the Special Meeting, the authority granted in this proposal to implement the Reverse Stock Split will terminate and determine the compensationReverse Stock Split Amendment to effect the Reverse Stock Split will be abandoned.
22
| Proposed Ratio (Old Common Stock: New Common Stock) | | | Percentage Reduction in Outstanding Common Stock | | | Approximate Number of Shares of Common Stock to be Outstanding after the Reverse Stock Split | | ||||||
| 2:1 | | | | | 50% | | | | | | 36,604,070 | | |
| 3:1 | | | | | 66.67% | | | | | | 24,402,714 | | |
| 4:1 | | | | | 75% | | | | | | 18,302,035 | | |
| 5:1 | | | | | 80% | | | | | | 14,641,628 | | |
| 6:1 | | | | | 83.33% | | | | | | 12,201,357 | | |
| 7:1 | | | | | 85.71% | | | | | | 10,458,306 | | |
| 8:1 | | | | | 87.5% | | | | | | 9,151,018 | | |
| 9:1 | | | | | 88.89% | | | | | | 8,134,238 | | |
| 10:1 | | | | | 90% | | | | | | 7,320,814 | | |
| 11:1 | | | | | 90.91% | | | | | | 6,655,286 | | |
| 12:1 | | | | | 91.67% | | | | | | 6,100,679 | | |
| 13:1 | | | | | 92.31% | | | | | | 5,631,396 | | |
| 14:1 | | | | | 92.86% | | | | | | 5,229,153 | | |
| 15:1 | | | | | 93.33% | | | | | | 4,880,543 | | |
| 16:1 | | | | | 93.75% | | | | | | 4,575,509 | | |
| 17:1 | | | | | 94.12% | | | | | | 4,306,362 | | |
| 18:1 | | | | | 94.44% | | | | | | 4,067,119 | | |
| 19:1 | | | | | 94.74% | | | | | | 3,853,060 | | |
| 20:1 | | | | | 95% | | | | | | 3,660,407 | | |
| 21:1 | | | | | 95.24% | | | | | | 3,486,102 | | |
| 22:1 | | | | | 95.45% | | | | | | 3,327,643 | | |
| 23:1 | | | | | 95.65% | | | | | | 3,182,963 | | |
| 24:1 | | | | | 95.83% | | | | | | 3,050,340 | | |
| 25:1 | | | | | 96.00% | | | | | | 2,928,326 | | |
| 26:1 | | | | | 96.15% | | | | | | 2,815,698 | | |
| 27:1 | | | | | 96.30% | | | | | | 2,711,413 | | |
| 28:1 | | | | | 96.43% | | | | | | 2,614,577 | | |
| 29:1 | | | | | 96.55% | | | | | | 2,524,419 | | |
| 30:1 | | | | | 96.67% | | | | | | 2,440,272 | | |
| 31:1 | | | | | 96.77% | | | | | | 2,361,553 | | |
| 32:1 | | | | | 96.88% | | | | | | 2,287,755 | | |
| 33:1 | | | | | 96.97% | | | | | | 2,218,429 | | |
| 34:1 | | | | | 97.06% | | | | | | 2,153,181 | | |
| 35:1 | | | | | 97.14% | | | | | | 2,091,662 | | |
| 36:1 | | | | | 97.22% | | | | | | 2,033,560 | | |
| 37:1 | | | | | 97.30% | | | | | | 1,978,599 | | |
| 38:1 | | | | | 97.37% | | | | | | 1,926,530 | | |
| 39:1 | | | | | 97.44% | | | | | | 1,877,132 | | |
| 40:1 | | | | | 97.50% | | | | | | 1,830,204 | | |
Executive
| Proposed Ratio (Old Common Stock: New Common Stock) | | | Percentage Reduction in Outstanding Common Stock | | | Approximate Number of Shares of Common Stock to be Outstanding after the Reverse Stock Split | | ||||||
| 41:1 | | | | | 97.56% | | | | | | 1,785,565 | | |
| 42:1 | | | | | 97.62% | | | | | | 1,743,051 | | |
| 43:1 | | | | | 97.67% | | | | | | 1,702,515 | | |
| 44:1 | | | | | 97.73% | | | | | | 1,663,822 | | |
| 45:1 | | | | | 97.78% | | | | | | 1,626,848 | | |
| 46:1 | | | | | 97.83% | | | | | | 1,591,482 | | |
| 47:1 | | | | | 97.87% | | | | | | 1,557,620 | | |
| 48:1 | | | | | 97.92% | | | | | | 1,525,170 | | |
| 49:1 | | | | | 97.96% | | | | | | 1,494,044 | | |
| 50:1 | | | | | 98.00% | | | | | | 1,464,163 | | |
| 51:1 | | | | | 98.04% | | | | | | 1,435,454 | | |
| 52:1 | | | | | 98.08% | | | | | | 1,407,849 | | |
| 53:1 | | | | | 98.11% | | | | | | 1,381,286 | | |
| 54:1 | | | | | 98.15% | | | | | | 1,355,707 | | |
| 55:1 | | | | | 98.18% | | | | | | 1,331,058 | | |
| 56:1 | | | | | 98.21% | | | | | | 1,307,289 | | |
| 57:1 | | | | | 98.25% | | | | | | 1,284,354 | | |
| 58:1 | | | | | 98.28% | | | | | | 1,262,210 | | |
| 59:1 | | | | | 98.31% | | | | | | 1,240,816 | | |
| 60:1 | | | | | 98.33% | | | | | | 1,220,136 | | |
| 61:1 | | | | | 98.36% | | | | | | 1,200,134 | | |
| 62:1 | | | | | 98.39% | | | | | | 1,180,777 | | |
| 63:1 | | | | | 98.41% | | | | | | 1,162,034 | | |
| 64:1 | | | | | 98.44% | | | | | | 1,143,878 | | |
| 65:1 | | | | | 98.46% | | | | | | 1,126,280 | | |
| 66:1 | | | | | 98.48% | | | | | | 1,109,215 | | |
| 67:1 | | | | | 98.51% | | | | | | 1,092,659 | | |
| 68:1 | | | | | 98.53% | | | | | | 1,076,591 | | |
| 69:1 | | | | | 98.55% | | | | | | 1,060,988 | | |
| 70:1 | | | | | 98.57% | | | | | | 1,045,831 | | |
| 71:1 | | | | | 98.59% | | | | | | 1,031,101 | | |
| 72:1 | | | | | 98.61% | | | | | | 1,016,780 | | |
| 73:1 | | | | | 98.63% | | | | | | 1,002,852 | | |
| 74:1 | | | | | 98.65% | | | | | | 989,300 | | |
| 75:1 | | | | | 98.67% | | | | | | 976,109 | | |
Our executive compensation program is administeredwill not affect any stockholder’s proportionate equity interest in the Company, except for those stockholders who receive an additional share of our Common Stock in lieu of a fractional share. None of the rights currently accruing to holders of our Common Stock will be affected by the compensation committeeReverse Stock Split. Following the Reverse Stock Split, each share of New Common Stock will entitle the holder thereof to one vote per share and will otherwise be identical to Old Common Stock. The Reverse Stock Split also will have no effect on the number of authorized shares of our boardCommon Stock. The shares of directors, subjectNew Common Stock will be fully paid and non-assessable.
Our director compensation program is administered by our board of directors with the assistance of the compensation committee. The compensation committee conducts an annual review of director compensation and makes recommendationsform reasonably acceptable to the board of directors with respect thereto.
In the future, we expect that our compensation committee will continue to engage independent compensation consultants to provide additional guidance on our executive compensation programs, our director compensation programs and to conduct further competitive benchmarking against a peer group of publicly traded companies.
The compensation committee reviewed information regarding the independence and potential conflicts of interest of Aon, taking into account, among other things, the factorsCompany (ii) set forth in reasonable detail the Nasdaq listing standards. Based on such review,number of shares of Series D Preferred Stock beneficially owned by the compensation committee concluded thatholder at the engagement of Aon did not raise any conflict of interest.
Under its charter,applicable redemption time and include evidence reasonably satisfactory to the compensation committee may form,Company regarding the same, and delegate authority to, subcommittees, consisting of independent directors, as it deems appropriate. During fiscal year 2021,(iii) set forth a calculation specifying the compensation committee did not form or delegate authorityamount in cash owed to such subcommittees. In addition,holder by the Company with respect to the shares of Series D Preferred Stock that were redeemed at the applicable redemption time.
23
Summary Compensation Table
The following table sets forth information regarding compensation awarded to, earned by or paid to each of our named executive officers for the periods presented.
| | | | | | | | | | | | | | |
| | | | | | | | Stock | | Option | | All other | | |
Name and Principal | | | | Salary | | Bonus | | Awards | | Awards | | compensation | | Total |
Position |
| Year |
| ($) |
| ($)(1) |
| ($)(2) | | ($)(3) |
| ($) |
| ($) |
Mark Iwicki(4) |
| 2021 |
| 643,500 | | 270,270 | | 521,360 | | 1,330,806 | | 6,120 | (5) | 2,772,056 |
Chief Executive Officer |
| 2020 |
| 585,500 | | 676,500 | | 2,665,962 | | 969,079 | | 4,719 | (6) | 4,901,760 |
| | | | | | | | | | | | | | |
Todd Bazemore(4) |
| 2021 |
| 489,878 | | 171,457 | | 188,650 | | 483,131 | | 10,240 | (7) | 1,343,356 |
President and Chief Operating Officer |
| 2020 |
| 455,700 | | 273,420 | | 1,170,000 | | 318,777 | | 10,419 | (8) | 2,228,316 |
| | | | | | | | | | | | | | |
Kim Brazzell, Ph.D. |
| 2021 |
| 476,207 | | 150,005 | | 188,650 | | 483,131 | | 18,976 | (9) | 1,316,969 |
Head of Research and Developemnt and Chief Medical Officer |
| 2020 |
| 455,700 | | 373,420 | | 1,170,000 | | 318,329 | | 19,155 | (10) | 2,336,604 |
24
Narrative Disclosure to Summary Compensation Table
Base Salary. We use base salaries to recognize the experience, skills, knowledge and responsibilities required of all our employees, including our named executive officers. None of our named executive officers is currently party to an employment agreement or other agreement or arrangement that provides for automatic or scheduled increases in base salary.
In December 2020, our compensation committee increased Mr. Iwicki’s, Mr. Bazemore’s and Dr. Brazzell’s annual base salaries to $643,500, $489,878 and $476,207, respectively, effective January 1, 2021.
In December 2021, our compensation committee increased Mr. Iwicki’s, Mr. Bazemore’s and Dr. Brazzell’s annual base salaries to $682,110, $515,000 and $500,000, respectively, effective January 1, 2022.
Annual Bonus. Performance-based bonuses, which are calculated as a percentage of base salary, are designed to motivate our employees to achieve annual goals based on our strategic, financial and operating performance objectives. Historically, our board of directors or our compensation committee has approved discretionary annual cash bonuses to our named executive officers with respect to their prior year performance.
With respect to 2021 performance, our compensation committee awarded bonuses of $270,270, $171,457 and $150,005 to Mr. Iwicki, Mr. Bazemore and Dr. Brazzell, respectively, which represented payments at 70% of each individual’s target bonus opportunity. Mr. Iwicki’s individual performance-based target bonus amount for 2022, expressed as a percentage of his 2022 base salary, is 60%. Mr. Bazemore’s individual performance-based target bonus amount for 2022, expressed as a percentage of his 2022 base salary, is 50%. Dr. Brazzell’s individual performance-based target bonus amount for 2022, expressed as a percentage of his 2022 base salary, is 45%.
Equity Incentives. Although we do not have a formal policy with respect to the grant of equity incentive awards to our executive officers, or any formal equity ownership guidelines applicable to them, we believe that equity grants provide our executives with a strong link to our long-term performance, create an ownership culture and help to align the interests of our executives and our stockholders. In addition, we believe that equity grants with a time-based vesting feature promote executive retention because this feature incentivizes our executive officers to remain in our employment during the vesting period. Accordingly, our compensation committee annually reviews the equity incentive compensation of our named executive officers and from time to time may grant equity incentive awards to them in the form of stock options and/or restricted stock units with time-based and/or performance-based vesting conditions.
In January 2021, we granted to Mr. Iwicki options to purchase 303,000 shares of our common stock and to each of Mr. Bazemore and Dr. Brazzell options to purchase 110,000 shares of our common stock. All of the options granted in January 2021 to Mr. Iwicki, Mr. Bazemore and Dr. Brazzell vest monthly as to 1/48th of the shares underlying the option. In January 2021, we also granted restricted stock units with respect to 76,000, 27,500 and 27,500 shares of our common stock to Mr. Iwicki, Mr. Bazemore and Dr. Brazzell, respectively. Such awards vest as to 1/3 of the shares on each of January 4, 2022, January 4, 2023 and January 4, 2024.
In January 2020, we granted to Mr. Iwicki options to purchase 365,000 shares of our common stock and to each of Mr. Bazemore and Dr. Brazzell options to purchase 120,000 shares of our common stock. All of the options granted in 2020 to Mr. Iwicki, Mr. Bazemore and Dr. Brazzell vest monthly as to 1/48th of the shares underlying the option. In June 2020, based on overall performance, we granted restricted stock units with respect to 49,560, 19,000 and 19,000
25
shares of our common stock to Mr. Iwicki, Mr. Bazemore and Dr. Brazzell, respectively. Such awards vested as to 50% of the shares on June 25, 2021 and the remaining 50% of the shares vest on June 25, 2022. In June 2020, we also granted performance-based restricted stock units tied to FDA approval of EYSUVIS with respect to 178,300, 81,000 and 81,000 shares of our common stock to Mr. Iwicki, Mr. Bazemore and Dr. Brazzell, respectively. In October 2020, our board of directors determined that the performance condition for the awards had been achieved. As a result, under the terms of the awards, the awards vested as to 50%2017 Plan. As of the Record Date, there were 12,510,514 shares on October 26, 2021,of Common Stock reserved for issuance under the first anniversary2017 Plan, of which 3,405,201 remained available for future awards, and following the Reverse Stock Split, if any, such reserve will be reduced to between 166,807 – 6,255,257 shares of Common Stock, of which between approximately 45,403 – 1,702,601 shares will be available for future awards.
Prior to our IPO, our executives were eligible to participate in our 2009 Employee, Director and Consultant Equity Incentive Plan as amended, or the 2009 Plan. Following the closing of our IPO, our employees and executives are eligible to receive stock options and other stock-based awards pursuant to the 2017 Equity Incentive Plan and no further grants are made under the 2009 Plan. For a description of our (the “
Historically, we have used stock options to compensate our executive officers in the form of initial grants in connectiontogether with the commencement of employment and also at various times, often but not necessarily annually. The award of stock options to our executive officers, including our Chief Executive Officer, generally have been and going forward are expected to be made by our board of directors. We have granted stock options to our executive officers with both time-based and performance-based vesting. Since our IPO and going forward, annual and other option grants made to existing executive officers and employees typically vest monthly as to 1/48th of the shares underlying the option. Vesting and exercise rights cease shortly after termination of employment except in the case of death or disability and, in certain circumstances, including, upon a change in control. Prior to the exercise of an option, the holder has no rights as a stockholder with respect to the shares subject to such option, including no voting rights and no right to receive dividends or dividend equivalents. In addition, we have historically granted stock options with exercise prices that are equal to the fair market value of our common stock on the date of grant as determined by our board of directors or compensation committee, based on a number of objective and subjective factors. The exercise price of all stock options granted after our IPO has been and will be equal to the fair market value of shares of our common stock on the date of grant, which will be determined by reference to the closing market price of our common stock on the date of grant.
In June 2020, we also began to use restricted stock units to compensate our executive officers. The awards of restricted stock units to our executive officers, including our Chief Executive Officer, generally have been and going forward are expected to be made by our board of directors. We have granted restricted stock units to our executive officers with both time-based and performance-based vesting. Time-based awards vest over two or three years, as applicable. Prior to settlement of the restricted stock units, the holder has no rights as a stockholder with respect to the shares subject to such restricted stock unit, including no voting rights and no right to receive dividends or dividend equivalents.None of our executive officers is currently party to an employment agreement that provides for automatic equity awards.
26
Outstanding Equity Awards at December 31, 2021
The following table sets forth information regarding all outstanding equity awards held by each of our named executive officers as of December 31, 2021.
| | | | | | | | | | | | | | | | | | |
| | Option Awards | | Stock Awards | ||||||||||||||
| | | | | | | | | | | | | | | | Equity | | Equity |
| | | | | | | | | | | | | | | | Incentive | | Incentive |
| | | | | | | | | | | | | | | | Plan Awards: | | Plan Awards: |
| | | | | | | | | | | | | | | | Number of | | Market or |
| | | | | | | | | | | | Number | | Market | | Unearned | | Payout Value |
| | Number of | | Number of | | Number of | | | | | | of Shares | | Value | | Shares, Units | | of Unearned |
| | Securities | | Securities | | Securities | | | | | | or Units | | of Shares | | or Other | | Shares, Units |
| | Underlying | | Underlying | | Underlying | | | | | | of Stock | | or Units of | | Rights | | or Other |
| | Unexercised | | Unexercised | | Unexercised | | Option | | Option | | That | | Stock That | | That Have | | Rights That |
| | Options (#) | | Options (#) | | Unearned | | Exercise | | Expiration | | Have Not | | Have Not | | Not | | Have Not |
Name |
| Exercisable |
| Unexercisable | | Options (#) |
| Price ($) |
| Date | | Vested (#) | | Vested ($)(1) |
| Vested (#) |
| Vested ($) |
Mark Iwicki | | 272,496 | | — | | — | | 3.34 | | 6/3/2025 | | — | | — | | — | | — |
| | 378,844 | | — | | — | | 5.21 | | 9/11/2025 | | — | | — | | — | | — |
| | 609,811 | | — | | — | | 3.34 | | 6/17/2026 | | — | | — | | — | | — |
| | 78,632 | | — | | — | | 15.00 | | 7/18/2027 | | — | | — | | — | | — |
| | 220,417 | | 9,583 | (2) | — | | 12.86 | | 2/6/2028 | | — | | — | | — | | — |
| | 335,417 | | 124,583 | (3) | — | | 5.19 | | 1/1/2029 | | — | | — | | — | | — |
| | 174,896 | | 190,104 | (4) | — | | 3.84 | | 1/1/2030 | | — | | — | | — | | — |
| | 69,438 | | 233,562 | (5) | — | | 6.86 | | 1/3/2031 | | — | | — | | — | | — |
| | — | | — | | — | | — | | — | | 24,780 | (7) | 29,984 | | — | | — |
| | — | | — | | — | | — | | — | | 89,150 | (8) | 107,872 | | — | | — |
| | — | | — | | — | | — | | — | | 76,000 | (9) | 91,960 | | — | | — |
Todd Bazemore | | 172,000 | | — | | — | | 19.60 | | 11/19/2027 | | — | | — | | — | | — |
| | 23,958 | | 1,042 | (2) | — | | 12.86 | | 2/6/2028 | | — | | — | | — | | — |
| | 127,604 | | 47,396 | (3) | — | | 5.19 | | 1/1/2029 | | — | | — | | — | | — |
| | 94,792 | | 80,208 | (6) | — | | 3.45 | | 10/10/2029 | | — | | — | | — | | — |
| | 57,500 | | 62,500 | (4) | — | | 3.84 | | 1/1/2030 | | — | | — | | — | | — |
| | 25,208 | | 84,792 | (5) | — | | 6.86 | | 1/3/2031 | | — | | — | | — | | — |
| | — | | — | | — | | — | | — | | 9,500 | (7) | 11,495 | | — | | — |
| | — | | — | | — | | — | | — | | 40,500 | (8) | 49,005 | | — | | — |
| | — | | — | | — | | — | | — | | 27,500 | (9) | 33,275 | | — | | — |
Kim Brazzell, Ph.D | | 15,430 | | — | | — | | 5.21 | | 10/2/2025 | | — | | — | | — | | — |
| | 102,341 | | — | | — | | 3.34 | | 6/17/2026 | | — | | — | | — | | — |
| | 47,142 | | — | | — | | 15.00 | | 7/18/2027 | | — | | — | | — | | — |
| | 67,083 | | 2,917 | (2) | — | | 12.86 | | 2/6/2028 | | — | | — | | — | | — |
| | 109,375 | | 40,625 | (3) | — | | 5.19 | | 1/1/2029 | | — | | — | | — | | — |
| | 57,500 | | 62,500 | (4) | — | | 3.84 | | 1/1/2030 | | — | | — | | — | | — |
| | 25,208 | | 84,792 | (5) | — | | 6.86 | | 1/3/2031 | | — | | — | | — | | — |
| | — | | — | | — | | — | | — | | 9,500 | (7) | 11,495 | | — | | — |
| | — | | — | | — | | — | | — | | 40,500 | (8) | 49,005 | | — | | — |
| | — | | — | | — | | — | | — | | 27,500 | (9) | 33,275 | | — | | — |
27
Employment Agreements with Named Executive Officers
Letter Agreement with Mr. Iwicki
Mr. Iwicki was appointed as our Chief Executive Officer and Chairman of our board of directors pursuant to a letter agreement with us dated September 10, 2015, which amended and restated a prior letter agreement. Mr. Iwicki served as our President from August 2017 to December 2021. Mr. Iwicki is an at-will employee, and his employment with us can be terminated by him or us at any time and for any reason.
Mr. Iwicki’s base salary is subject to annual review and adjustment by our compensation committee. In December 2021, Mr. Iwicki’s annual base salary was increased to $682,110, effective January 1, 2022. In addition, Mr. Iwicki is eligible to receive a discretionary bonus in a target amount of 60% of his annual base salary, as determined by our board of directors in its sole discretion.
On March 11, 2019, Mr. Iwicki’s employment letter agreement was amended to revise the severance benefits he is entitled to receive upon termination in connection with the following events. Subject to his execution and nonrevocation of a release of claims in our favor, in the event of the termination of Mr. Iwicki’s employment by us without cause or by him for good reason, each as defined in his employment letter agreement, and such termination is not within the twenty-four month period following a change of control, as defined in his employment letter agreement, Mr. Iwicki will be entitled to a lump sum payment in an amount equal to (i) twenty-four months of his then-current annual base salary, (ii) any bonus earned for the year prior to the year of termination that has not yet been paid, (iii) an amount equal to 200% of his target bonus attributable to the year of termination and (iv) a pro-rated portion of any bonus attributable to the year of termination based upon performance against company but not individual objectives. In addition, Mr. Iwicki will be entitled to twenty-four months of COBRA premiums for continued health benefit coverage on the same terms as were applicable to him prior to his termination and outplacement services for the twenty-four month period.
Further, in the event of the termination of Mr. Iwicki’s employment by us without cause or by him for good reason within the twenty-four month period following a change of control, Mr. Iwicki will be entitled to a lump sum payment in an amount equal to (i) thirty months of his then-current annual base salary, (ii) any bonus earned for the year prior to the year of termination that has not yet been paid, (iii) a pro-rated portion of any bonus attributable to the year of termination based upon performance against company but not individual objectives and (iv) 250% of the greater of (A) the average bonus Mr. Iwicki received during the two years prior to termination or resignation, or (B) the target bonus for the year of termination or resignation. In addition, Mr. Iwicki will be entitled thirty months of COBRA premiums for continued health benefit coverage on the same terms as were applicable to him prior to his termination and outplacement services for thirty months.
In addition, in the event we terminate his employment or other service relationship with us without cause, he terminates his employment or other service relationship with us for good reason, or his employment or other service relationship with us terminates by reason of his death or disability, Mr. Iwicki is entitled to the automatic vesting and exercisability of any unvested options that would have vested if Mr. Iwicki’s employment or other service relationship with us had continued for twenty-four months following such termination. In addition, provided Mr. Iwicki is an employee, member of our board of directors or is otherwise providing services to us at the time of a change of control, as defined in the letter agreement, or in the event of the termination of Mr. Iwicki’s employment by us without cause or by him for good reason in contemplation of a change of control, as defined in the letter agreement, Mr. Iwicki’s time-based equity awards will vest in full upon consummation of such change in control. Options granted to Mr. Iwicki will be exercisable for up to eighteen months following the termination of his employment or other relationship with us other
28
than a termination for cause. Mr. Iwicki also is entitled to piggyback registration rights with respect to options granted pursuant to his employment letter agreement.
In addition, in the event we terminate his employment without cause or he terminates his employment for good reason within the twenty-four month period following a change of control, Mr. Iwicki is entitled to the automatic vesting and exercisability of any options and other equity awards granted to him following a change of control that vest solely based on his continued employment and have not vested.
Letter Agreement with Mr. Bazemore
Mr. Bazemore was appointed as our Chief Operating Officer pursuant to a letter agreement with us dated November 6, 2017 and was appointed as our President commencing December 16, 2021. Mr. Bazemore is an at-will employee, and his employment with us can be terminated by him or us at any time and for any reason.
Mr. Bazemore’s base salary is subject to annual review and adjustment by our compensation committee. In December 2021, Mr. Bazemore’s annual base salary was increased to $515,000, effective January 1, 2022. In addition, Mr. Bazemore is eligible to receive a discretionary bonus in a target amount of 50% of 2022 annual base salary, as determined by our board of directors in its sole discretion.
On March 11, 2019, Mr. Bazemore’s employment letter agreement was amended to revise the severance benefits he is entitled to receive upon termination in connection with the following events. Subject to his execution and nonrevocation of a release of claims in our favor, in the event of the termination of Mr. Bazemore’s employment by us without cause or by him for good reason, each as defined in his employment letter agreement, and such termination is not within the twenty-four month period following a change of control, as defined in his employment letter agreement, Mr. Bazemore will be entitled to a lump sum payment in an amount equal to (i) twelve months of his then-current annual base salary, (ii) any bonus earned for the year prior to the year of termination that has not yet been paid, (iii) a pro-rated portion of any bonus attributable to the year of termination based upon performance against company but not individual objectives and (iv) an amount equal to 100% of his target bonus for the year of termination. In addition, Mr. Bazemore is entitled to twelve months of COBRA premiums for continued health benefit coverage on the same terms as were applicable to him prior to his termination and outplacement services for the twelve-month period.
Further, in the event of the termination of Mr. Bazemore’s employment by us without cause or by him for good reason within the twenty-four month period following a change of control, Mr. Bazemore will be entitled to a lump sum payment in an amount equal to (i) eighteen months of his then-current annual base salary, (ii) any bonus earned for the year prior to the year of termination that has not yet been paid, (iii) a pro-rated portion of any bonus attributable to the year of termination based upon performance against company but not individual objectives and (iv) 150% of the greater of (A) the average bonus Mr. Bazemore received during the two years prior to termination or resignation, or (B) the target bonus for the year of termination or resignation. In addition, Mr. Bazemore is entitled to eighteen months of COBRA premiums for continued health benefit coverage on the same terms as were applicable to him prior to his termination and outplacement services for the eighteen-month period.
In addition, in the event we terminate his employment without cause or he terminates his employment for good reason, Mr. Bazemore is entitled to the automatic vesting and exercisability of any options and other equity awards granted to him that vest solely based on his continued employment that would have vested if his employment had continued for twelve months following such termination, and any performance-based grants with the performance period ending within one year after the termination shall be treated as having satisfied any service requirement with respect thereto and shall vest subject to, and only to the extent of, the satisfaction of the applicable performance goals at the end of the applicable performance period.
In the event we terminate his employment without cause or he terminates his employment for good reason in contemplation of a change of control, as defined in the letter agreement, or within the twenty-four-month period following a change of control, Mr. Bazemore is entitled to the automatic vesting and exercisability of 100% of any options and other equity awards granted to him that vest solely based on his continued employment, and any
29
performance based grants with a performance period ending within one year after the termination will be treated as having satisfied any service requirement with respect such grant, and will vest subject to, and only to the extent of, the satisfaction of the applicable performance goals at the end of the applicable performance period.
Letter Agreement with Dr. Brazzell
Dr. Brazzell was appointed to serve on a full-time basis as our Chief Medical Officer pursuant to a letter agreement with us dated May 10, 2016, which amended and restated a prior letter agreement. Dr. Brazzell is an at-will employee, and his employment with us can be terminated by him or us at any time and for any reason.
Brazzell’s base salary is subject to annual review and adjustment by our compensation committee. In December 2021, Dr. Brazzell’s annual base salary was increased to $500,000, effective January 1, 2022. In addition, Dr. Brazzell is eligible to receive a discretionary bonus in a target amount of 45% of 2022 annual base salary, as determined by our compensation committee in its sole discretion.
On March 11, 2019, Dr. Brazzell’s employment letter agreement was amended to revise the severance benefits he is entitled to receive upon termination in connection with the following events. Subject to his execution and nonrevocation of a release of claims in our favor, in the event of the termination of Dr. Brazzell’s employment by us without cause or by him for good reason, each as defined in his employment letter agreement, and such termination is not within the twenty-four month period following a change of control, as defined in his employment letter agreement, Dr. Brazzell will be entitled to a lump sum payment in an amount equal to (i) twelve months of his then-current annual base salary, (ii) any bonus earned for the year prior to the year of termination that has not yet been paid, (iii) a pro-rated portion of any bonus attributable to the year of termination based upon performance against company but not individual objectives and (iv) an amount equal to 100% of his target bonus for the year of termination. In addition, Dr. Brazzell is entitled to twelve months of COBRA premiums for continued health benefit coverage on the same terms as were applicable to him prior to his termination and outplacement services for the twelve-month period.
Further, in the event of the termination of Dr. Brazzell’s employment by us without cause or by him for good reason within the twenty-four month period following a change of control, Dr. Brazzell will be entitled to a lump sum payment in an amount equal to (i) eighteen months of his then-current annual base salary, (ii) any bonus earned for the year prior to the year of termination that has not yet been paid, (iii) a pro-rated portion of any bonus attributable to the year of termination based upon performance against company but not individual objectives and (iv) 150% of the greater of (A) the average bonus Dr. Brazzell received during the two years prior to termination or resignation, or (B) the target bonus for the year of termination or resignation. In addition, Dr. Brazzell is entitled to eighteen months of COBRA premiums for continued health benefit coverage on the same terms as were applicable to him prior to his termination and outplacement services for the eighteen-month period.
In addition, in the event we terminate his employment without cause or he terminates his employment for good reason, Dr. Brazzell is entitled to the automatic vesting and exercisability of any options and shares granted to him that vest solely based on his continued employment that would have vested if his employment had continued for twelve months following such termination. In the event of a change of control, as defined in his employment letter agreement, during his employment, Dr. Brazzell is entitled to the automatic vesting and exercisability of 100% of any options and restricted shares granted to him that vest solely based on his continued employment. The option referenced in his employment agreement for 162,135 shares is exercisable for a period of up to six months following his termination date.
In addition, in the event we terminate his employment without cause or he terminates his employment for good reason within the twenty-four-month period following a change of control, Dr. Brazzell is entitled to the automatic vesting and exercisability of any options and shares granted to him following a change of control that vest solely based on his continued employment and have not vested.
30
Employee Non-Competition, Non-Solicitation, Confidentiality, and Assignment of Inventions Agreements
Each of our named executive officers has entered into a standard form agreement with respect to non-competition, non-solicitation, confidential information and assignment of inventions. Under this agreement, each executive officer has agreed not to compete with us during his or her employment and for a period of one year after the termination of his or her employment and to protect our confidential and proprietary information indefinitely. Under this agreement, each of Mr. Iwicki and Dr. Brazzell has agreed not to solicit our employees or consultants during his employment and for a period of twelve months after the termination of his employment, and Mr. Bazemore has agreed not to solicit our employees or consultants during his employment and for a period of eighteen months after the termination of his employment, and each executive officer has agreed to protect our confidential and proprietary information indefinitely. In addition, under this agreement, each executive officer has agreed that we own all inventions, as defined in the agreement, that are developed during such executive officer’s employment and for a period of one year after the termination of his or her employment, to the extent such invention is our field of interest, as defined in the agreement. Each executive officer also agreed to assign to us any inventions which were not prepared or originated in the performance of employment but that were provided to us or incorporated into any of our products or systems.
Stock Option and Other Compensation Plans
In this section we describe our 2009 Employee, Director and Consultant Equity Incentive Plan, as amended to date, or the 2009 Plan, our 2017 Equity Incentive Plan, or the 2017 Plan and our Amended and Restated 2017 Employee Stock Purchase Plan, or 2017 ESPP. Prior to our initial public offering of common stock, or IPO, which closed on July 25, 2017, we granted awards to eligible participants underESPP, the 2009 Plan. Following the closing of our IPO, we ceased granting awards under the 2009 Plan and started granting awards to eligible participants under the 2017 Plan.
2009 Plan
Our 2009 Plan was adopted by our board of directors and approved by our stockholders on December 11, 2009 and subsequently amended by our board in 2012, 2013, 2014 and 2015. The 2009 Plan provided for the grant of incentive stock options, non-qualified options, shares, restricted or otherwise, of our common stock, and other stock-based awards. We refer to awards granted under our 2009 Plan as stock rights. Our employees, directors and consultants were eligible to receive stock rights under our 2009 Plan; however incentive stock options could only be granted to our employees who are deemed to be residents of the United States.
The type of stock right granted under our 2009 Plan and the terms of such stock right are set forth in the applicable stock right award agreement.
Pursuant to the 2009 Plan, our board of directors (or a committee to which our board delegates its authority) administers the 2009 Plan. Subject to the provisions of the 2009 Plan, our board of directors is authorized to:
31
Effect of certain changes in capitalization
If our shares of common stock are subdivided or combined into a greater or smaller number of shares, if we issue shares of common stock as a stock dividend, or if we make any distribution of additional, new or different shares or securities of ours or any distribution of non-cash assets with respect to our shares of common stock, then, subject to the terms of the 2009 Plan, our board of directors shall proportionately and appropriately adjust:
Effect of certain corporate transactions
In the event that we are consolidated with or acquired by another entity in a merger, consolidation, or sale of all or substantially all of our assets (other than a transaction to merely change the state of incorporation), which we refer to as corporate transactions, our board of directors, or the board of directors of any entity assuming our obligations under the 2009 Plan, must take one of the following actions pursuant to the 2009 Plan as to outstanding options, subject to the terms of the 2009 Plan:
If there is a corporate transaction, our board of directors, or the board of directors of any entity assuming our obligations under the 2009 Plan, must take one of the following actions pursuant to the 2009 Plan as to outstanding stock grants, restricted or otherwise, subject to the terms of the 2009 plan:
32
In taking any of the above actions with respect to stock rights, our board of directors will not be obligated to treat all stock rights, all stock rights held by a participant, or all stock rights of the same type, identically.
As of March 31, 2022, options to purchase 1,921,752 shares of common stock were outstanding under the 2009 Plan at a weighted average exercise price of $3.66 per share, and 983,657 options to purchase shares of our common stock had been exercised.
We will no longer grant awards under our 2009 Plan; however, awards outstanding under our 2009 Plan continue to be governed by their existing terms.
2017 Equity “Incentive Plan
Our 2017 Plan, which became effective on July 19, 2017, was adopted by our board of directors and approved by our stockholders in July 2017. An amendment to our 2017 Plan was adopted by our board of directors on April 2020 and approved by our stockholders at the 2020 annual meeting of stockholders. The 2017 Plan provides for the grant of incentive stock options, non-qualified options, stock appreciation rights, restricted stock awards, restricted stock units and other stock-based awards. The number of shares of our common stock reserved for issuance under the 2017 Plan is the sum of: (1) 3,786,883; plus (2) 241,548 shares available for issuance under the 2009 Plan at the time of our IPO and the number of shares of our common stock subject to outstanding awards under the 2009 Plan that expire, terminate or are otherwise surrendered, cancelled, forfeited or repurchased by us at their original issuance price pursuant to a contractual repurchase right; plus (3) an annual increase, to be added on the first day of each fiscal year, beginning with the fiscal year ending December 31, 2018 and continuing until, and including, the fiscal year ending December 31, 2027, equal to the lowest of 3,573,766 shares of our common stock, 4% of the number of shares of our common stock outstanding on the first day of such fiscal year and an amount determined by our board of directors. The number of shares authorized for issuance under the 2017 Plan further increased each year, pursuant to the terms of the 2017 Plan, on the first of January beginning in 2018 by an amount equal to 4% of our then-outstanding common stock.
Our employees, officers, directors, consultants and advisors are eligible to receive awards under the 2017 Plan. Incentive stock options, however, may only be granted to our employees.
Pursuant to the terms of the 2017 Plan, our board of directors (or a committee delegated by our board of directors or, subject to certain limitations, officers delegated by our board of directors) administers the plan and, subject to any limitations in the plan, selects the recipients of awards and determines:
33
If our board of directors delegates authority to an executive officer to grant awards under the 2017 Plan, the executive officer will have the power to make awards to all of our employees, except executive officers. Our board of directors will fix the terms of the awards to be granted by such executive officer, including the exercise price of such awards (which may include a formula by which the exercise pricePlans”), will be determined), and the maximum number of shares subject to awards that such executive officer may make.
Effect of certain changes in capitalization
Upon the occurrence of any stock split, reverse stock split, stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any dividend or distribution to holders of our common stock other than an ordinary cash dividend, our board of directors shall equitably adjust:
Effect of certain corporate transactions
Upon a merger or other reorganization event (as defined in our 2017 Plan), our board of directors may, on such terms as our board determines (except to the extent specifically provided otherwise in an applicable award agreement or other agreement between the participant and us), take any one or more of, or a combination of, the following actions pursuant to the 2017 Plan as to some or all outstanding awards, other than restricted stock awards:
34
Our board of directors does not need to take the same action with respect to all awards, all awards held by a participant or all awards of the same type.
In the case of certain restricted stock units, no assumption or substitution is permitted, and the restricted stock units will instead be settledproportionately reduced, in accordance with the terms of the applicable restricted stock unit agreement.
UponIncentive Plan, in the occurrencesame ratio as the reduction in the number of a reorganization event other than a liquidation or dissolution,shares of outstanding Common Stock, except that any fractional shares resulting from such reduction will be rounded down to the repurchasenearest whole share to comply with the requirements of Code Sections 409A and other rights with respect424. Correspondingly, the per share exercise price of any such options will be increased in direct proportion to outstanding restricted stock awards will continuethe Reverse Stock Split ratio (rounded up to the nearest whole cent), so that the aggregate dollar amount payable for the benefitpurchase of the successor company and will, unless our board of directors may otherwise determine, applyshares subject to the cash, securities or other property into whichoptions will remain materially unchanged. For example, assuming that we effect the Reverse Stock Split at a ratio of 1-for-5, and that an optionee holds options to purchase 1,033 shares of our common stock are converted or exchanged pursuantCommon Stock at an exercise price of $1.00 per share, upon the effectiveness of the Reverse Stock Split at such ratio, the number of shares of the Common Stock subject to that option would be reduced to 206 (rounded down from 206.6 to account for fractional shares) and the reorganization event. Upon the occurrence of a reorganization event involving a liquidation or dissolution, all restrictions and conditions on each outstanding restricted stock award will automaticallyexercise price would be deemed terminated or satisfied, unless otherwise provided in the agreement evidencing the restricted stock award or any other agreement between the participant and us.
At any time, our board of directors may, in its sole discretion, provide that any award under the 2017 Plan will become immediately exercisable in full or in part, free of some or all restrictions or conditions, or otherwise realizable in whole or in part as the case may be.
No award may be granted under the 2017 Plan on or after July 19, 2027. Our board of directors may amend, suspend or terminate the 2017 Plan at any time, except that stockholder approval may be requiredproportionately increased to comply with applicable law or stock market requirements.
$5.00 per share.
As of March 31, 2022, 1,842,052 shares of common stock were available for future issuance under our 2017 Plan.
Amended and Restated 2017 Employee Stock Purchase Plan
Our 2017 ESPP, which became effective on July 19, 2017, was adopted by our board of directors and approved by our stockholderssame ratio as the reduction in July 2017 and amended and restated by our board of directors in December 2018. The 2017 ESPP is administered by our board of directors or by a committee appointed by our board of directors. The 2017 ESPP initially provides participating employees with the opportunity to purchase an aggregate of 223,341 shares of our common stock. The number of shares of our common stock reserved for issuance underoutstanding Common Stock. Correspondingly, the 2017 ESPPper share exercise price of such warrants will automatically increase on the first day of each fiscal year, beginning on January 1, 2019 and ending on December 31, 2029,be increased in an amount equaldirect proportion to the lowest of: (1) 893,441Reverse Stock Split ratio, so that the aggregate dollar amount payable for the purchase of the shares subject to the warrants will remain unchanged.
35
All of our employees and employees of any of our designated subsidiaries, as defined in the 2017 ESPP, are eligible to participate in the 2017 ESPP, provided that:
We retain the discretion to determine which eligible employees may participate in an offering under applicable Treasury regulations.
We may make one or more offerings to our eligible employees to purchase stock under the 2017 ESPP beginning at such time and on such dates as our board of directors may determine, or the first business day thereafter. Each offering will consist of a six-month offering period during which payroll deductions will be made and held for the purchase of our common stock at the end of the offering period. Our board of directors or a committee appointed by our board, may, at its discretion, choose a different period of not more than 12 months for offerings. Offering periods under our 2017 ESPP commenced on each January 1 and July beginning with January 1, 2019.
On each offering commencement date, each participant will be granted the right to purchase, on the last business day of the offering period, up to 25,000record hold their shares of our common stock. No employee may be granted an option under the 2017 ESPP that permits the employee’s rights to purchase shares under the 2017 ESPPCommon Stock in certificate form or a combination of certificate and any other employee stock purchase plan of ours or ofbook-entry form. If any of our subsidiaries to accrue at a rate that exceeds $25,000 of the fair market value of our common stock (determined as of the first day of each offering period) for each calendar year in which the option is outstanding. In addition, no employee may purchaseyour shares of our common stock underCommon Stock are held in certificate form, you will receive a transmittal letter from the 2017 ESPP that would result inCompany’s transfer agent as soon as practicable
On the commencement date of each offering period, each eligible employee may authorize up to a maximum of 15% of his or her compensation to be deducted by us during the offering period. Each employee who continues to be a participant in the 2017 ESPP on the last business day of the offering periodReverse Stock Split, if any. The transmittal letter will be deemedaccompanied by instructions specifying how to have exercised an option to purchase from usexchange your certificate representing the Old Common Stock for a statement of holding or a certificate of New Common Stock.
An employee may at any time prior to the close of business on the fifteenth business day prior to the end of an offering period, and for any reason, permanently withdraw from participation in an offering prior to the end of an offering period and permanently withdraw the balance accumulated in the employee’s account. Any balance remaining in an employee’s payroll deduction account at the end of an offering period will be automatically refunded to the employee. If a participating employee’s employment ends before the last business day of an offering period, no additional payroll deductions will be taken and the balance in the employee’s account will be paid to the employee.
We are required to make equitable adjustments to the extent determined by our board of directors or a committee of our board of directors to the number and class of securities available under the 2017 ESPP, the share limitations under the 2017 ESPP and the purchase price for an offering period under the 2017 ESPP to reflect stock splits, reverse stock splits, stock dividends, recapitalizations, combinations of shares, reclassifications of shares, spin-offs and other similar changes in capitalization or events or any dividends or distributions to holders of our common stock other than ordinary cash dividends.
36
In connection with a merger or other reorganization event (as defined in the 2017 ESPP), our board of directors or a committee of our board of directors may take any one or more of the following actions as to outstanding options to purchase shares of our common stock under the 2017 ESPP on such terms as our board of directors or committee determines:
Our board of directors may at any time, and from time to time, amend or suspend the 2017 ESPP, or any portion of the 2017 ESPP. We will obtain stockholder approval for any amendment if such approval is required by Section 423 of the Internal Revenue Code of 1986, as amended or the Code. Further, our board of directors may not make any amendment that would cause the 2017 ESPP to fail to comply with Section 423 of the Code. The 2017 ESPP may be terminated at any time by our board of directors. Upon termination, we will refund all amounts in the accounts of participating employees.
401(k) Plan
We maintain a defined contribution employee retirement plan for our employees. Our 401(k) plan is intended to qualify as a tax-qualified plan under Section 401 of the Code so that contributions to our 401(k) plan, and income earned on such contributions, are not taxable to participants until withdrawn or distributed from the 401(k) plan. Our 401(k) plan provides that each participant may contribute up to 90% of his or her pre-tax compensation, up to a statutory limit, which was $19,500 for 2021 and is $20,500 for 2022. Participants who are at least 50 years old can also make “catch-up” contributions, which in 2021 was up to an additional $6,500 above the statutory limit and in 2022 is up to an additional $6,500 above the statutory limit. We also make discretionary matching contributions to our 401(k) plan equal to 50% of the employee contributions up to 4% of the employee’s salary, subject to the statutorily prescribed limit, equal to $19,500 in 2021 and $20,500 in 2022. The discretionary matching contributions are capped at $5,800 and $6,100 in 2021 and 2022, respectively. Under our 401(k) plan, each employee is fully vested in his or her deferred salary contributions and our discretionary match. Employee contributions are held and invested by the plan’s trustee, subject to participants’ ability to give investment directions by following certain procedures.
37
Rule 10b5‑1 Sales Plans
Our directors
Anti-Hedging Policies
Our insider trading policy expressly prohibits all of our employees, including our executive officers, and our directors from engaging in any purchases of financial instruments (including prepaid variable forward contracts, equity swaps, collars and exchange funds) that are designed to hedge or offset any decrease in the market value of our securities.
The table below shows all compensation to our non-employee directors during 2021.
| | | | | | | | | |
| | Fees Earned or | | Option | | Stock | | | |
| | Paid in Cash | | Awards | | Awards | | Total | |
Name |
| ($) |
| ($)(1)(2)(3) |
| ($)(2)(4)(5) |
| ($) | |
Mark S. Blumenkranz(6) | | 6,386 | | 56,755 | | — | | 63,141 | (7) |
Gregory Grunberg |
| 58,030 |
| — |
| 117,600 |
| 175,630 |
|
Andrew I. Koven |
| 82,840 |
| — |
| 147,000 |
| 229,840 |
|
C. Daniel Myers(8) | | 13,247 | | 58,926 | | — | | 72,173 | |
Robert Paull |
| 70,000 |
| — |
| 117,600 |
| 187,600 |
|
Gregory D. Perry |
| 70,000 |
| — |
| 117,600 |
| 187,600 |
|
Howard B. Rosen |
| 61,590 |
| — |
| 117,600 |
| 179,190 |
|
Rajeev Shah(9) | | 55,163 | | — | | 44,200 | | 99,363 | |
|
|
|
|
|
|
|
| |
|
|
|
|
| |
|
| |
|
|
|
|
| |
|
| |
|
|
|
|
|
38
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
| |
|
| |
|
|
|
|
| |
|
| |
|
| |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||
|
|
|
|
|
|
|
| ||
|
|
| ||
|
|
|
|
|
|
|
| ||
|
|
| ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39
Mr. Iwicki, one of our directors who also serves as our Chief Executive Officer, does not receive any additional compensation for his service as a director. The compensation that we pay to our Chief Executive Officer is discussed under “—Summary Compensation Table” and “—Narrative Disclosure to Summary Compensation Table.”
During the year ended December 31, 2021, our non-employee directors were entitled to compensation for their services on our board of directors as follows:
Each member of our board of directors also is entitled to be reimbursed for reasonable travel and other expenses incurred in connection with attending meetings of our board of directors and any committee of our board of directors on which he or she serves.
In December 2021, upon the recommendation of our compensation committee, our board of directors approved a change to the Initial Grant and the Annual Grant under our director compensation program for 2022, and retained the cash fees set forth above for 2022. Beginning in 2022, for the Initial Grant, each non-employee director shall receive upon his or her initial election to the board of directors an option to purchase 80,000 shares of our common stock, which option will vest with respect to one third of the shares on the first anniversary of the grant and with respect to an additional 1/36th of the shares on each monthly anniversary thereafter and will vest automatically as to 100% of the unvested portion of such option upon specified change in control events.
40
Beginning in 2022, for the Annual Grant, each non-employee director who has then served on our board of directors for at least six months will receive, on the date of the first board meeting held after each annual meeting of stockholders, an annual grant of an option to purchase 40,000 shares of our common stock, and if then serving as the lead independent director, an option to purchase 50,000 shares of our common stock, which stock options will vest (A) on the earlier of (i) the first anniversary date of the previous year’s annual meeting or (ii) the date of the first annual meeting following the grant date, and (B) automatically as to 100% of the unvested portion of such option upon specified change in control events.
Securities Authorized for Issuance under Equity Compensation Plans
The following table contains information about our equity compensation plans as of December 31, 2021. As of December 31, 2021, we had three equity compensation plans, our 2009 Plan, our 2017 Plan and our 2017 ESPP, each of which was approved by our stockholders. We have also made inducement awards to certain new hires, which awards were not approved by our stockholders.
Equity Compensation Plan Information
| | | | | | | | |
| | | | | | | Number of |
|
| | Number of | | | | | securities | |
| | securities to be | | Weighted‑ | | remaining available |
| |
| | issued upon | | average | | for future issuance |
| |
| | exercise of | | exercise price | | under equity |
| |
| | outstanding | | of outstanding | | compensation plans |
| |
| | options | | options | | (excluding |
| |
| | warrants and | | | warrants and | | securities reflected |
|
| | rights | | | rights | | in column (a)) |
|
|
| (a) |
| | (b) |
| (c) |
|
Equity compensation plans approved by security holders |
| 8,709,021 | (1) | $ | 6.80 | (2) | 3,064,802 | (3)(4)(5) |
Equity compensation plans not approved by security holders |
| 1,291,909 | (6) | $ | 6.59 |
| — | |
Total |
| 10,000,930 | | $ | 6.77 |
| 3,064,802 | |
41
Report of the Audit Committee of the Board of Directors
The audit committee oversees the Company’s financial reporting process on behalf of the board of directors. The audit committee has reviewed the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2021 and discussed them with Company management and Deloitte & Touche LLP, the Company’s independent registered public accounting firm.
The audit committee has received from, and discussed with, Deloitte & Touche LLP, which is responsible for expressing an opinion on the conformity of the Company’s audited consolidated financial statements with accounting principles generally accepted in the United States, its judgments as to the quality, not just the acceptability, of the Company’s accounting principles and such other matters as are required to be discussed with the audit committee under generally accepted auditing standards, including the matters required to be discussed by the applicable requirements of the Public Company Accounting Oversight Board (the “PCAOB”) and the Securities and Exchange Commission. In addition, the audit committee has received from Deloitte & Touche LLP the written disclosures and the letter required by applicable requirements of the PCAOB regarding its communications with us concerning independence, have considered the compatibility of non-audit services with the auditors’ independence and have discussed with Deloitte & Touche LLP its independence from management and the Company.
Based on the review and discussions referred to above, the audit committee recommended to the board of directors that the audited consolidated financial statements be included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2021.
This report of the audit committee is not “soliciting material,” shall not be deemed “filed” with the SEC and shall not be incorporated by reference by any general statement incorporating by reference this Proxy Statement into any filing under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date hereof, and irrespectiveall of any general incorporation languagewhich are subject to change, possibly on a retroactive basis, or different interpretation. Any such changes could affect the continuing validity of this discussion.
The foregoing report has been furnished by the audit committee.
Respectfully submitted,
The Audit Committee of the Board of DirectorsGregory D. Perry, Chair
Gregory Grunberg, M.D.
Robert PaullHoward B. Rosen
42
Proposal 1: Election of Directors
Our Restated Certificate of Incorporation provides forincur a classified board of directors. This means our board of directors is divided into three classes, with each class having as nearly as possible an equal number of directors. The term of service of each class of directors is staggered so that the term of one class expires at each annual meeting of the stockholders.
Our board of directors consists of eight members, divided into three classes as follows:
At each annual meeting of stockholders, directors are elected for a full term of three years to succeed those directors whose terms are expiring.
Our board of directors, on the recommendation of our nominating and corporate governance committee, has nominated Mark Iwicki and Mark S. Blumenkranz, M.D. for election as Class II directors, each with a term ending at the 2025 annual meeting of stockholders. Our board of directors, upon the recommendation of our nominating and corporate governance committee, appointed Dr. Blumenkranz to our board of directors in November 2021taxable event in connection with the closingReverse Stock Split), broker-dealers, foreign entities, nonresident alien individuals and tax-exempt entities. This summary also assumes that the Old Common Stock shares were, and the New Common stock shares will be, held as a “capital asset,” as defined in Section 1221 of the Combangio Acquisition. Dr. GrunbergCode.
Unless otherwise instructedthe Reverse Stock Split.
| | The Board unanimously recommends that you vote “FOR” the approval of the Reverse Stock Split Proposal. | | |
A pluralityuse the additional time to solicit additional proxies in favor of the combinedReverse Stock Split Proposal.
OUR BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE ELECTION OF MARK IWICKI AND MARK S. BLUMENKRANZ TO SERVE AS CLASS II DIRECTORS.
43
Proposal 2: Ratificationapproval of the Appointment of Independent Registered Public Accounting Firm
Our audit committee has appointed the firm of Deloitte & Touche LLP, or Deloitte, an independent registered public accounting firm, as independent auditors for the fiscal year ending December 31, 2022. Although stockholder approval of our audit committee’s appointment of Deloitte is not required by law, our board of directors believes that it is advisable to give stockholders an opportunity to ratify this appointment. If this proposal is not approved at the annual meeting, our audit committee will reconsider its appointment of Deloitte. Deloitte has no direct or indirect material financial interest in our company or our subsidiaries. Representatives of Deloitte are expected to be present at the annual meeting and will have the opportunity to make a statement, if they desire to do so, and will be available to respond to appropriate questions from our stockholders.
Deloitte was our independent registered public accounting firm for the years ended December 31, 2021 and December 31, 2020. The following table summarizes the fees Deloitte billed to us for the last two fiscal years. All such services and fees were pre-approved by our audit committee in accordance with the “Pre-Approval Policies and Procedures” described below.
| | | | | | |
| | Years Ended December 31, | ||||
Fee Category |
| 2021 |
| 2020 | ||
Audit Fees(1) | | $ | 866,489 | | $ | 917,051 |
Audit-Related Fees | |
| — | |
| — |
Tax Fees(2) | |
| 147,808 | |
| 85,793 |
All Other Fees(3) | |
| 1,895 | |
| 1,895 |
Total Fees | | $ | 1,016,192 | | $ | 1,004,739 |
|
| The Board unanimously recommends that you vote “FOR” the approval of | | |
|
|
|
|
Pre-approval policies
The audit committee of our board of directors has adopted policies and procedures for the pre-approval of audit and non-audit services for the purpose of maintaining the independence of our independent auditor. We may not engage our independent auditor to render any audit or non-audit service unless either the service is approved in advance by the audit committee, or the engagement to render the service is entered into pursuant to the audit committee’s pre-approval policies and procedures. In 2020, the audit committee delegated to its chair the authority to pre-approve any audit or non-audit services to be provided to us by our independent registered public accounting firm. By the terms of this delegated authority, the chair must be report on any such approval of services pursuant to such authority at the first regularly scheduled meeting of the audit committee following such approval. The audit committee does not delegate its responsibility to approve services performed by the independent auditor to any member of management.
The standard applied by the audit committee, or the chair of the audit committee, in determining whether to grant approval of any type of non-audit service, or of any specific engagement to perform a non-audit service, is whether the services to be performed, the compensation to be paid therefore and other related factors are consistent with the independent registered public accounting firm’s independence under guidelines of the SEC and applicable professional standards. Relevant considerations include whether the work product is likely to be subject to, or implicated in, audit
44
procedures during the audit of our financial statements, whether the independent registered public accounting firm would be functioning in the role of management or in an advocacy role, whether the independent registered public accounting firm’s performance of the service would enhance our ability to manage or control risk or improve audit quality, whether such performance would increase efficiency because of the independent registered public accounting firm’s familiarity with our business, personnel, culture, systems, risk profile and other factors, and whether the amount of fees involved, or the non-audit services portion of the total fees payable to the independent registered public accounting firm in the period would tend to reduce the independent registered public accounting firm’s ability to exercise independent judgment in performing the audit.
OUR BOARD
45
Security Ownership of Certain Beneficial Owners and Management
Unless otherwise provided below, the following table sets forth information regarding beneficial ownership of our common stockCommon Stock and our Series D Preferred Stock as of MarchAugust 31, 2022 by:
Name and Address of Beneficial Owner | | | Shares of Common Stock Beneficially Owned | | | Shares of Series D Preferred Stock | | | Percentage of Common Stock | | | Percentage of Series D Preferred Stock(13) | | ||||||||||||
5% Stockholders: | | | | | | | | | | | | | | | | | | | | | | | | | |
Entities affiliated with Longitude Venture Partners(1) | | | | | 5,411,860 | | | | | | 5,411.860 | | | | | | 7.39% | | | | | | 7.39% | | |
Entities affiliated with Lagunita(2) | | | | | 4,570,403 | | | | | | 4,570.403 | | | | | | 6.24% | | | | | | 6.24% | | |
Directors and Named Executive Officers: | | | | | | | | | | | | | | | | | | | | | | | | | |
Mark Iwicki(3) | | | | | 2,650,729 | | | | | | 120.882 | | | | | | 3.50% | | | | | | * | | |
Todd Bazemore(4) | | | | | 727,724 | | | | | | 60.161 | | | | | | * | | | | | | * | | |
Kim Brazzell, Ph.D.(5) | | | | | 777,015 | | | | | | 226.227 | | | | | | 1.05% | | | | | | * | | |
Mark S. Blumenkranz, M.D.(6) | | | | | 4,709,512 | | | | | | 4,709.512 | | | | | | 6.43% | | | | | | 6.43% | | |
Andrew I. Koven(7) | | | | | 59,880 | | | | | | — | | | | | | * | | | | | | * | | |
C. Daniel Myers(8) | | | | | — | | | | | | — | | | | | | * | | | | | | * | | |
Robert Paull(9) | | | | | 49,281 | | | | | | 2.361 | | | | | | * | | | | | | * | | |
Gregory D. Perry(10) | | | | | 46,920 | | | | | | — | | | | | | * | | | | | | * | | |
Howard B. Rosen(11) | | | | | 98,230 | | | | | | 13.064 | | | | | | * | | | | | | * | | |
All current executive officers and directors as a group (12 persons)(12) | | | | | 10,490,749 | | | | | | 5,519.474 | | | | | | 13.42% | | | | | | 7.54% | | |
| | | | | |
| | Number of | | Percentage |
|
| | shares | | of shares |
|
| | beneficially | | beneficially |
|
Name and Address of Beneficial Owner |
| owned |
| owned |
|
5% Stockholders: | | | | | |
Entities affiliated with RA Capital(1) |
| 10,914,613 |
| 15.04 | % |
Entities affiliated with Longitude Venture Partners(2) |
| 5,411,860 |
| 7.45 | % |
Entities affiliated with Lagunita(3) |
| 4,570,403 |
| 6.30 | % |
Directors and Named Executive Officers: | | | | | |
Mark Iwicki(4) | | 1,827,704 | | 2.46 | % |
Todd Bazemore(5) |
| 636,107 |
| * | |
Kim Brazzell, Ph.D.(6) |
| 706,284 |
| * | |
Mark S. Blumenkranz, M.D.(7) |
| 4,709,512 |
| 6.49 | % |
Gregory Grunberg, M.D.(8) |
| 5,478,780 |
| 7.54 | % |
Andrew I. Koven(9) |
| 59,880 |
| * | |
C. Daniel Myers(10) |
| — |
| * | |
Robert Paull(11) |
| 49,281 |
| * | |
Gregory D. Perry(12) |
| 46,920 |
| * | |
Howard B. Rosen(13) |
| 98,230 |
| * | |
All current executive officers and directors as a group (13 persons)(14) |
| 15,462,375 |
| 20.04 | % |
*
46
47
48
Stockholders are advised to review our by-laws which also specify requirements as to the form and content of a stockholder’s notice.
49
| |||||||||||
| | KALA PHARMACEUTICALS, INC. | | ||||||||
| | | | By: | | | | | |||
| | | | | | | Name: | | | | |
| | | | | | | Title: | | | | |
|