UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant ☒
Filed by a Party other than the Registrant ☐
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| Preliminary Proxy Statement |
☐ | Confidential, for Use of the Commission Only (as permitted by Rule |
| Definitive Proxy Statement |
☐ | Definitive Additional Materials |
☐ | Soliciting Material Pursuant to |
KALA PHARMACEUTICALS, INC.
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
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☒ | No fee required | |
☐ | Fee paid previously with preliminary materials | |
☐ | Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules | |
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TablePRELIMINARY COPY SUBJECT TO COMPLETION DATED MARCH 1, 2023
In accordance with Rule 14a-6(d) under Regulation 14A, please be advised that Kala Pharmaceuticals, Inc. intends to release definitive copies of Contentsthis Proxy Statement to security holders on or about March 13, 2023.
KALA PHARMACEUTICALS, INC.
1167 Massachusetts Avenue
Arlington, Massachusetts 02476
(781) 996-5252
NOTICE OF 2022 ANNUALSPECIAL MEETING OF STOCKHOLDERS
To Be Held on June 16, 2022April 24, 2023
Dear Stockholders:To the Stockholders of Kala Pharmaceuticals, Inc.:
You are cordially invited to attend the 2022 annualNotice is hereby given that a special meeting of stockholders (the “Special Meeting”) of Kala Pharmaceuticals, Inc, whichInc. (“Kala” or the “Company”), will be a virtual meeting held virtually via the Internet at www.virtualshareholdermeeting.com/KALA2022KALA2023SM on June 16, 2022April 24, 2023 at 11:00 a.m., Eastern Time. At the annual meeting,Special Meeting, stockholders will consider and vote on the following matters:
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The Option Exchange Proposal and Auditor Ratification Proposal were approved by the board of directors of the Company (the “board” or “board of directors”), and both require the affirmative vote of the holders of shares of our common stock, par value $0.001 per share (“Common Stock”) representing a majority of the votes cast by holders of all shares of Common Stock present or represented at the Special Meeting, 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 Option Exchange Proposal, “FOR” the Auditor Ratification 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/KALA2022KALA2023SM shortly prior to the scheduled start of the meeting and entering the 16-digit control number found on the proxy card, voting instruction form or notice of availability of proxy
materials.We believe that hosting a “virtual meeting” will enable greater stockholder attendance and participation from any location around the world.
Stockholders of record atThe board has fixed the close of business on April 20, 2022 will beFebruary 24, 2023 as the record date for determining the stockholders entitled to notice of, and to vote at, the annual meetingSpecial Meeting or any adjournmentadjournments thereof. Only the stockholders of record of our Common Stock are entitled to receive notice of, and to vote at, the Special Meeting or postponementany adjournments thereof.
Accordingly, we urge you to review the accompanying material carefully and to promptly return the enclosed proxy card or voting instruction. On the following pages, we provide answers to frequently asked questions about the Special Meeting.
A complete list of registered stockholders entitled to vote at the Special Meeting will be available for inspection by stockholders at the principal executive offices of the Company during regular business hours for the 10 calendar days prior to and during the Special Meeting, and online during the Special Meeting.
Hard copies of the Company’s proxy statement to security holders in connection with the Special Meeting are being mailed to stockholders of record as of the close of business on the record date will be available online for examination by our stockholders of record during the annual meeting.
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, 2022February 24, 2023, beginning on or about April 29, 2022, and it contains instructions on howMarch 13, 2023. 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.
YOUR VOTE AND PARTICIPATION IN THE COMPANY’S AFFAIRS ARE IMPORTANT.
We encourage all stockholders to attend the virtual annual meeting.Special Meeting. However, whether or not you plan to attend the virtual annual meeting,Special Meeting, we encourage you to read this proxy statement and submit your proxy or voting instructions as soon as possible.possible. Please review the instructions of each of your voting options described in the proxy statement.
TableIf your shares are registered in your name, even if you plan to attend the Special Meeting or any postponement or adjournment of Contentsthe Special Meeting online, we request that you vote by telephone, over the Internet, or complete, sign and mail your proxy card to ensure that your shares will be represented at the Special Meeting.
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.
Thank you for your ongoing support and continued interest in Kala.
By Order of the Board of Directors,
Mark Iwicki
Chief Executive Officer
Arlington, Massachusetts
April 29, 2022
March 1, 2023
Important Notice Regarding Internetthe Availability of Proxy Materials for the AnnualSpecial Meeting of Stockholders to be Held on June 16, 2022:April 24, 2023. The Notice of Special Meeting and proxy statement and our 2021 annual report to stockholders, which includes our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, are available at www.proxyvote.com. These documents are also available to any stockholder who wishes to receive a paper copy by calling 1-800-579-1639, by emailing sendmaterial@proxyvote.com or by submitting a request over the Internet at www.proxyvote.com.
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KALA PHARMACEUTICALS, INC.
1167 Massachusetts Avenue
Arlington, MA 02476
(781) 996-5252
PROXY STATEMENT
2022 ANNUALSPECIAL MEETING OF STOCKHOLDERS
To Be Held on June 16, 2022April 24, 2023
INFORMATION CONCERNING SOLICITATION AND VOTING
This proxy statement and the accompanying proxy card are being furnished in connection with the solicitation of proxies by the board of directors (the “board” or “board of directors”) of Kala Pharmaceuticals, Inc. for use at the annualspecial meeting of stockholders (the “Special Meeting”) to be held on June 16, 2022April 24, 2023 at 11:00 a.m., Eastern Time, and at any adjournment thereof. The 2022 annual meeting of stockholdersSpecial Meeting will be a virtual meeting held via the Internet at www.virtualshareholdermeeting.com/KALA2022.KALA2023SM. There will not be a physical meeting location, and stockholders will not be able to attend the annual meetingSpecial Meeting in person. As always, we encourage you to vote your shares prior to the annual meetingSpecial Meeting regardless of whether you intend to attend.
Except where the context otherwise requires, references to “Kala,” “the Company,” “we,” “us,” “our” and similar terms refer to Kala Pharmaceuticals, Inc. 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”).
This proxy statement summarizes information about the proposals to be considered at the meeting and other information you may find useful in determining how to vote. The proxy card is a means by which you actually authorize the proxies to vote your shares in accordance with your instructions. We are makingHard copies of this proxy statement, along with the accompanyingnotice and either a proxy card andor a voting instruction card, are being mailed to our annual report to stockholders forof record as of the fiscal year ended December 31, 2021 available to stockholders for the first timeclose of business on February 24, 2023, beginning on or about April 29, 2022.March 13, 2023.
A copyImportant Notice Regarding the Availability of our Annual Report on Form 10-KProxy Materials for the fiscal year ended December 31, 2021, as filed with the SecuritiesSpecial Meeting of Stockholders to be Held on April 24, 2023. The Notice of Special Meeting and Exchange Commission, or SEC, except for exhibits, will be furnished without charge to any stockholder upon written or oral request to Kala Pharmaceuticals, Inc., 1167 Massachusetts Avenue, Arlington, Massachusetts 02476 or by calling 1-800-579-1639, by emailing sendmaterial@proxyvote.com or by submitting a request over the Internet at www.proxyvote.com.This proxy statement and our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 are also available on the SEC’s website at www.sec.gov.www.proxyvote.com.
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Special NoteTable
On October 20, 2022, we effected a 1-for-50 reverse stock split of Contentsour common stock either issued and outstanding or held as treasury stock. As a result of the reverse stock split, every 50 shares of issued and outstanding common stock were automatically combined into one issued and outstanding share of common stock, without any change in the par value per share. No fractional shares were issued as a result of the reverse stock split. Any fractional shares that would otherwise have resulted from the reverse stock split were rounded up to the next whole number. Unless otherwise indicated, all historical share and per share amounts in this Proxy Statement have been adjusted to reflect the reverse stock split. Proportionate adjustments were made to the per share exercise price and the number of shares of common stock that may be purchased upon exercise of outstanding stock options and warrants, and the number of shares of common stock reserved for future issuance under our 2017 Equity Incentive Plan, as amended, and Employee Stock Purchase Plan.
IMPORTANT INFORMATION
QUESTIONS AND ANSWERS ABOUT THE ANNUALSPECIAL MEETING AND VOTING
Q. | What is a proxy? |
A. | A proxy is a person you appoint to vote on your behalf. By using the methods discussed below, you will be appointing Mary Reumuth or, in her absence, Mark Iwicki, Todd Bazemore and Eric L. Trachtenberg as your proxy. The proxy agent will vote on your behalf, and will have the authority to appoint a substitute to act as proxy. If you are unable to attend the Special Meeting, please vote by proxy so that your shares may be voted. |
Q. | What is a proxy statement? |
A. | A proxy statement is a document that regulations of the Securities and Exchange Commission (the “SEC”) require that we give to you when we ask you to sign a proxy card to vote your stock at the Special Meeting. |
Q. | Why did I receive these proxy materials? |
A. | Our board |
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Q.What is the purpose of the annual meeting?
A.At the annual meeting,Special Meeting, stockholders will be asked to consider and vote on the following matters:
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Other than these proposals, no other |
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Q. | Why is the |
A. | Our board has unanimously adopted a resolution declaring advisable, and recommending to our stockholders for their approval, the Option Exchange Proposal. For the reasons why the board recommended and the Company is proposing to effect such exchange, see “—Reasons for Proposed Option Exchange Program” under Proposal 1 below. |
Q. | Why is the Special Meeting a virtual, online meeting? |
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Q. | How do I virtually attend the |
A. | We will host the Beginning fifteen (15) minutes prior to, and during, the Special Meeting, we will have technicians standing by and ready to assist you with any technical difficulties you may have accessing or hearing the virtual meeting. If you encounter any difficulties accessing the virtual meeting or during the virtual meeting, please call the technical support team at the phone number available on www.virtualshareholdermeeting.com/KALA2023SM. |
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Beginning fifteen (15) minutes prior to, and during, the annual meeting, we will have technicians standing by and ready to assist you with any technical difficulties you may have accessing or hearing the virtual meeting. If you encounter any difficulties accessing the virtual meeting or during the virtual meeting, please call the technical support team at the phone number available on www.virtualshareholdermeeting.com/KALA2022.
Q. | Who |
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Q.How many votes do I have?
What is the difference between a stockholder of record and a “street name” holder? | |
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If your shares are held in a stock brokerage account or by a bank or other nominee, the nominee is considered the record |
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Q. | What is a broker non-vote? |
A. | Broker non-votes occur when shares are held indirectly through a broker, bank or other intermediary on behalf of a beneficial owner (referred to as held in “street name”) and the broker submits a proxy but does not vote for a matter because the broker has not received voting instructions from the beneficial owner and (i) the broker does not have discretionary voting authority on the matter or (ii) the broker chooses not to vote on a matter for which it has discretionary voting authority. Even though we are listed on The Nasdaq Stock Market LLC (“Nasdaq”), the rules of the New York Stock Exchange (the “NYSE”) govern how a broker licensed by the NYSE can vote shares it holds on behalf of stockholders of Nasdaq-listed companies. Under the rules of the NYSE that govern how brokers may vote shares for which they have not received voting instructions from the beneficial owner, brokers are permitted to exercise discretionary voting authority only on “routine” matters when voting instructions have not been timely received from a beneficial owner. Each of Proposals 2 and 3 is considered a “routine matter.” Therefore, if you do not provide voting instructions to your broker regarding Proposals 2 and 3, your broker will |
Q. | If I am a beneficial owner of shares, can my brokerage firm vote my shares? |
A. | If you are a beneficial owner and do not vote via the Internet or telephone or by returning a signed voting instruction card to your broker, your shares may be voted only with respect to so-called “routine” matters where your broker has discretionary voting authority over your shares. Each of Proposals 2 and 3 is considered a “routine” matter. Accordingly, brokers will have such discretionary authority to vote on Proposals 2 and 3, and may vote “FOR” Proposals 2 and 3. We encourage you to |
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Q.How do I vote?
A. | If you are the “record holder” of your shares, meaning that your shares are registered in your name in the records of our transfer agent, American Stock Transfer & Trust Company, LLC, you may vote your shares during the |
1. | Over the Internet prior to the |
2. | By Telephone prior to the |
3. | By Mail prior to the |
4. | Over the Internet during the |
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the |
If your shares are held in “street name,” meaning they are held for your account by an intermediary, such as a bank, broker or other nominee, then you are deemed to be the beneficial owner of your shares and the broker that actually holds the shares for you is the record holder and is required to vote the shares it holds on your
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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.
Even if you plan to attend the annual meeting online, we urge you to vote your shares by proxy in advance of the annual meeting so that if you should become unable to attend the annual meeting
If your shares are held in “street name,” meaning they are held for your account by an intermediary, such as a bank, broker or other nominee, then you are deemed to be the beneficial owner of your shares and the broker that actually holds the shares for you is the record holder and is required to vote the shares it holds on your 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.
Even if you plan to attend the Special Meeting online, we urge you to vote your shares by proxy in advance of the Special Meeting so that if you should become unable to attend the Special Meeting your shares will be voted as directed by you.
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How will my proxy vote my shares?
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If you are a stockholder of record, your proxy will vote according to your instructions. If you choose to vote by mail and complete and return the enclosed proxy card but do not indicate your vote, your proxy will vote:
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“FOR” the one-time exchange of certain stock options issued under the Company’s 2009 Plan, 2017 Plan and inducement awards for new restricted stock units that are held by eligible holders of the Company.
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“FOR” the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023.
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“FOR” the approval of the proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of Proposals 1 and 2.
We do not intend to bring any other matter for a vote at the Special Meeting, and we do not know of anyone else who intends to do so. Your proxies are authorized to vote on your behalf, however, using their best judgment, on any other business that properly comes before the Special Meeting.
If your shares are held in the name of a bank, broker or other nominee, you will receive separate voting instructions from your bank, broker or other nominee describing how to vote your shares. The availability of Internet voting will depend on the voting process of your bank, broker or other nominee. Please check with your bank, broker or other nominee and follow the voting instructions your bank, broker or other nominee provides.
As described above, each of Proposal 2 and 3 is considered to be a “routine” matter. Accordingly, brokers will have discretionary authority to vote on Proposals 2 and 3 and may vote “FOR” the Proposals 2 and 3.
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Q. | Can I change my vote? |
A. | If your shares are registered directly in your name, you may revoke your proxy and change your vote at any time before the vote is taken at the |
1. | Vote over the Internet or by telephone as instructed above under |
2. | Sign, date and return a new proxy card. Only your latest dated and timely received proxy card will be counted. |
3. | Attend the |
4. | Give our corporate secretary written notice before the |
If your shares are held in “street name,” you may submit new voting instructions by contacting your bank, broker or other nominee. You may also vote online during the annual meeting, which will have the effect of
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revoking any previously submitted voting instructions if you follow the procedures described under “How do I vote?
If your shares are held in “street name,” you may submit new voting instructions by contacting your bank, broker or other nominee. You may also vote online during the Special Meeting, which will have the effect of revoking any previously submitted voting instructions if you follow the procedures described under “How do I vote?” above.
Q. | How many shares must be represented to have a quorum and hold the |
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Q. | What vote is required to approve each |
A. | Proposal The affirmative vote of The principal terms of the Option Exchange Proposal have been approved by the board. We expect that our executive officers and non-employee directors will vote all their shares in favor of the Option Exchange Proposal. Proposal 2 - The Auditor Ratification Proposal The affirmative vote of the holders of shares of Common Stock representing a majority of the votes cast by holders of all shares of Common Stock present or represented at the meeting, is required for Auditor Ratification Proposal. Proposal 3 - The Adjournment Proposal The affirmative vote of the holders of shares of our Common Stock, representing a majority in voting power of the votes cast by holders of all of the shares of Common Stock present or represented at the Special Meeting and voting on the Adjournment Proposal is required for approval of the Adjournment Proposal. |
A nominee will be elected as a director at the annual meeting if the nominee receives a plurality of the votes cast by stockholders entitled to vote on the election. This means that the two nominees receiving the highest number of “for” votes will be elected as Class II directors.
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 on Proposal 1. Accordingly, shares withheld and “broker non-votes” will have no effect on the voting on Proposal 1.
For information about what happens if a director nominee receives more “withhold” votes than “for” votes in an uncontested election, see “What happens if a director nominee receives more “WITHHOLD” votes than “FOR” votes in an uncontested election?” below.
Proposal 2—Ratification of the Appointment of Independent Registered Public Accounting Firm
The affirmative vote of the holders of shares of common stock representing a majority of the votes cast by holders of all shares of common stock present or represented at the meeting on Proposal 2 is required for the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the year ending December 31, 2022.
Shares that abstain from voting and “broker non-votes” (if any) will not be counted as votes in favor of Proposal 2 and will also not be counted as shares voting on Proposal 2. Accordingly, abstentions and “broker non-votes” will have no effect on the voting on Proposal 2.
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vote” at the Special Meeting. Therefore, an abstention will have no effect on Proposal 1, Proposal 2 or Proposal 3 because an abstention does not count as a vote Broker non-votes will be included in the determination of the number of shares present at the Special Meeting for determining a quorum at the meeting. However, broker non-votes, to the If your shares are held in the name of a bank, broker or other nominee, you should check with your bank, broker or other nominee and follow the voting instructions provided. Attendance at the Special Meeting alone will not revoke your proxy. | |
Q. | Who counts the votes? |
A. | All votes will be tabulated by the inspector of election appointed for the Special Meeting. |
Q. | Who is soliciting proxies, how are they being solicited, and who pays the cost? |
A. | Proxies are being solicited by the board |
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The nominating and corporate governance committee will evaluate the best interests of the company and its stockholders and recommend to the board of directors the action to be taken with respect to such offer to resign. Such action may include requesting and accepting the resignation; retaining such director but addressing what the nominating and corporate governance committee believes to be the underlying cause of the Majority Withhold Vote; resolving that such director will not be re-nominated for election in the future; rejecting the offer to resign; or such other action that the nominating and corporate governance committee determines to be in the best interests of our company and our stockholders. In reaching its recommendation, the nominating and corporate governance committee will consider all factors it deems relevant, including, as it deems appropriate, any stated reasons of stockholders for the Majority Withhold Vote, any alternatives for curing the underlying cause of the Majority Withhold Vote, the total number of shares voted, how such shares were voted, the number of broker non-votes, the director’s tenure, the director’s qualifications, the criteria for nomination as a director set forth in the Corporate Governance Guidelines, the director’s past and expected future contributions to the company and the overall composition of the board of directors, including whether the director’s resignation would cause the company to fail to meet any SEC or Nasdaq requirement.
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.
Q.How does the board of directors recommend that I vote on the proposals?
A. | Our board FOR the approval of the Option Exchange Proposal; FOR the approval of the Auditor Ratification Proposal; and FOR the approval of the adjournment of the Special Meeting, if necessary, to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the Option Exchange Proposal and the Auditor Ratification Proposal. |
FOR the election of the two nominees to serve as Class II directors, each for a three-year term; and
FOR the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022.
Q.Are there other matters to be voted on at the annual meeting?
Do I have any dissenters’ or appraisal rights or cumulative voting rights with respect to any of the matters to be voted on at the Special Meeting? | |
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accounting firm. If any other matters are properly presented 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.
Q.Where can I find the voting results?
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Q.What are the costs of soliciting these proxies?
A. | We will bear the cost of soliciting proxies. In addition to solicitation by mail, our directors, officers and employees may solicit proxies by telephone, e-mail, facsimile, and in person without additional compensation. We may reimburse |
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brokers or persons holding stock in their names, or in the names of their nominees, for their expenses in sending proxies and proxy material to beneficial owners. |
Q.How do I submit a question at the annual meeting?
How many shares of Common Stock are outstanding? | |
A. | As of March 1, 2023, there are 2,025,495 shares of Common Stock outstanding. |
Q. | How do I submit a question at the Special Meeting? |
A. | If you wish to submit a question, on the day of the |
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Implications of Being an “Emerging Growth Company”
We are an “emerging growth company,” as definedThe information provided above in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. The JOBS Act contains provisions that, among other things, reduce certain reporting requirementsthis “Question and Answer” format is for an “emerging growth company.” For so long as we remain an emerging growth company, we are permittedyour convenience only and plan to rely on exemptions from certain disclosure requirements that are applicable to other public companies that are not emerging growth companies. These exemptions include reduced disclosure obligations regarding executive compensation. In addition, as an emerging growth company, we are not required to conduct votes seeking approval, on an advisory basis,is merely a summary of the compensation of our named executive officers or the frequency with which such votes must be conducted. We may take advantage of some or all these exemptions until such time as we are no longer an emerging growth company. We may remain an emerging growth company until December 31, 2022, although we would cease to be an emerging growth company earlier if we have more than $1.07 billion in annual revenue, if we have more than $700 million in market value of our stock held by non-affiliates as of the last day of our preceding second fiscal quarter or if we issue more than $1 billion of non-convertible debt over a three-year period. We have taken advantage of certain reduced reporting obligationsinformation contained in this proxy statement. Accordingly,We urge you to carefully read this entire proxy statement, including the information contained hereindocuments we refer to in this proxy statement. If you have any questions, need additional materials or need assistance in voting your shares, please feel free to contact the firm assisting us in the solicitation of proxies, Morrow Sodali. Banks, brokers and stockholders may be different than the information you receive from other public companies in which you hold stock.call Morrow Sodali toll-free at (800) 662-5200 or +1 (203) 658-9400 (outside North America) or may send an email to KALA@info.morrowsodali.com.
Implications of Being a “Smaller Reporting Company”
We are a “smaller reporting company,” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended or the (the “Exchange Act.Act”). The SEC has adopted rules allowing smaller reporting companies to provide scaled disclosure, and we are permitted and plan to rely on these exemptions from certain disclosure requirements for as long as we remain a smaller reporting company. We are a smaller reporting company so long as we have a public float of less than $250 million, or have annual revenues of less than $100 million and a public float less than $700 million, determined on an annual basis. Under the scaled disclosure obligations available to smaller reporting companies, we are not required to provide, among other things, Compensation Discussion and Analysis and certain other tabular and narrative disclosures relating to executive compensation. We have taken advantage of certain reduced reporting obligations in this proxy statement. Accordingly, the information contained herein may be different than the information you receive from other public companies in which you hold stock.
BOARD
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MATTERS TO BE VOTED ON
PROPOSAL 1: APPROVAL OF DIRECTORS AND CORPORATE GOVERNANCETHE OPTION EXCHANGE PROPOSAL
We are asking our stockholders to approve the stock option exchange program described below (the “Option Exchange Program”). In brief, under the Option Exchange Program, our executive officers, other employees, and non-employee directors (collectively, “Eligible Holders”) will be given the opportunity to exchange options to purchase shares of our Common Stock held by them for an equal number of restricted stock units (“RSUs”). On the recommendation of the compensation committee of our board (the “compensation committee”), our board approved the Option Exchange Program, subject to stockholder approval, on February 24, 2023.
Kala operates in a highly competitive market space, and we risk losing members of our team if we are unable to incentivize, motivate, and retain employees. Due to the decreased stock price, approximately 99% of our currently outstanding options are underwater, meaning the strike price of the option is higher than the current fair market value of the underlying shares. Our board believes that, if approved by our stockholders, the Option Exchange Program could permit us to enhance long-term stockholder value by restoring value to our incentives so the participants are further motivated to complete and deliver the important strategic and operational initiatives of our Company. Currently, due to the high exercise prices in relation to our stock value, our equity denominated awards lack significant performance and retention incentives for participants.
Under the terms of the Option Exchange Program, all stock options held by Eligible Holders will be eligible to participate in the exchange, and are referred to below as the “Eligible Options”; those Eligible Options which are actually surrendered for exchange in the Option Exchange Program are referred to below as the “Tendered Options”; and the new RSUs granted in exchange for the Tendered Options, which will be subject to vesting requirements, are referred to below as the “Replacement RSUs.”
We have successfully executed on our corporate strategy to divest our commercial assets and focus on the advancement of our innovative pipeline of development programs. Within the past year, we have moved from a fully integrated commercial organization with over 200 employees, to a small, rare disease biotech with a late-stage clinical asset and just over 30 employees. We are now in a much stronger financial position and have returned back to our roots as a development company. As a result of the transactions discussed below, we have significantly reduced operating expenses relative to prior periods, de-levered the company by reducing the principal amount of our outstanding debt from $80 million to $34 million as of March 1, 2023, and greatly improved cash runway with the $31 million private placement financing in December 2022. Our key employees have remained dedicated and focused during this time of change, and retaining their services is important for our continued success.
In November 2021, we acquired Combangio, Inc., diversifying our pipeline with KPI-012 and bringing in our mesenchymal stem cell secretome platform technology. During 2022, our management team and board recognized that further extraordinary measures would be required as our commercial business was in the challenging position of competing with large pharmaceutical companies with much greater resources while launching new products during the COVID-19 pandemic. In determining to allocate our resources to focus on the development of our pipeline candidates, we made the difficult decision to sell the rights to EYSUVIS® and INVELTYS® and our AMPPLIFY® Drug Delivery Technology, and in July 2022 we successfully divested these assets to Alcon.
Kala has significantly evolved since 2021, and the successes we have achieved enhancing our business and prospects are the result of enormous efforts of our key employees, who have remained dedicated through these changes and the significant reduction in force. These key employees hold long-term incentives in the form of stock options, a majority of which are significantly underwater and do not provide any value. It is vital that we retain the services of these key employees as we continue to execute on our long-term business plan, and we believe that it is also important to reward these key employees for their efforts so far.
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Role of Long-Term Equity Incentives in Compensation Program
Long-term equity incentive compensation has been a critical and meaningful part of the total compensation program for employees, executives, and non-employee directors. Through equity-based grants of stock options and RSUs, our goal is and has been to create an alignment among key talent and our stockholders, with a focus on the creation of value for our stockholders. A key part of these grants is the use of vesting, which helps to retain management by requiring continued service and, for some options, the achievement of performance measures, in order to enjoy the full economic benefit of the awards.
Kala has historically used stock options to incentivize and retain employees, executives, and non-employee directors. Option grants serve as a powerful tool in the retention of executives and other employees based on stock price appreciation. However, when the stock price remains flat or declines due to factors that are not always within our control, the power of options to motivate and retain the holders of these awards can be lost or greatly diminished, in particular when the exercise price is materially higher than the trading price of the underlying common stock. In this circumstance, options are sometimes referred to as being “underwater,” and we use this term below.
Kala currently has a substantial number of deeply underwater options outstanding due to a sustained drop in its stock price over the past several years. At the same time, the equity awards held by employees, executives, and non-employee directors have been greatly diluted recently due to the $31 million private placement of the Company’s equity securities that occurred at the end of 2022. In January 2023, the compensation committee retained Pearl Meyer & Partners, LLC (“Pearl Meyer”), who serves as the compensation committee’s independent compensation consultant, and began considering whether an option exchange program would assist with retaining and incentivizing our employees. After a series of discussions and after consideration of various design alternatives, the compensation committee recommended to the board, and the board subsequently authorized, that we pursue the Option Exchange Program for the Eligible Holders.
Kala has a pressing need to retain and motivate our key talent, particularly in light of the highly competitive nature of the labor market in the pharmaceutical industry and the possibility that our key talent could receive lucrative sign-on awards by taking a position with a comparable company. Our key talent has been vital in our successful transformation of our business, and retaining these employees is important to our continued success. For this reason, our board is asking that our stockholders approve the Option Exchange Program described below. Under this program, all Eligible Holders who hold Eligible Options will have the opportunity to surrender their Eligible Options and receive an equal number of Replacement RSUs, which will be subject to vesting conditions.
Reasons for Proposed Option Exchange Program
Our board has determined that an Option Exchange Program whereby participants can elect to exchange stock options for RSUs is appropriate for the following reasons:
● | Outstanding Options Have Little or No Value. As of February 21, 2023, there were 188,658 Eligible Options outstanding, with a weighted average exercise price of $254.33 and a weighted remaining term of 6.55 years. Our average closing trading price over the 90 days trading prior to February 21, 2023 was $11.95. Therefore, the Eligible Options have an average exercise price that is approximately 21.28 times Kala’s average trading price. |
● | Option Exchange Program will Help to Restore Retention and Motivation Incentives. We rely on highly skilled employees to move our business forward. Competition for employees is intense. We continue to believe that equity incentive awards are an important component of our compensation program and our ability to retain and motivate our key contributors. We also believe that substantially underwater options do not have sufficient positive impact on, and in some cases negatively impact, retention and motivation, and that for our equity compensation program to serve its intended purpose, it needs to provide value to our key contributors irrespective of market volatility. The failure to address the issue in the near to medium term will make it more difficult for us to retain our key contributors. If we cannot retain these individuals, our business, results of |
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operations and future stock price would likely be adversely affected. We believe that the Replacement RSUs will be significantly more effective in retaining and incentivizing eligible participants than the existing options. |
● | Equity Held by Employees and Directors was Substantially Diluted Due to Private Placement. At the end of 2022, we issued common stock and Series E Preferred Stock in a private placement, for gross proceeds of $31 million. The proceeds from this private placement were vital to advance the clinical development of KPI-012, our product candidate for the treatment of persistent corneal epithelial defects, but the issuance of additional common stock and the convertible Series E Preferred Stock resulted in dilution of common stock of approximately 75%, and diluted the equity held by employees and directors such that outstanding equity awards represent approximately 4.8% on a fully diluted basis, far below market standards for companies in our sector. Since a majority of the equity awards held by employees and directors are in the form of stock options which are significantly underwater, the real value of the equity awards held by employees and directors is even lower. |
● | Exchange of Options for RSUs will Re-Align Interests of Key Talent, Directors, and Stockholders. The board has developed the proposed Option Exchange Program as a key element of its plan to return employee and director stock ownership to pre-dilution levels, and to do so with a vehicle that provides retention value. The board also intends to request additional shares for use under the 2017 Plan at the annual meeting of stockholders, and will use a portion of the additional shares to grant additional equity awards to employees, executives, and non-employee directors. If the Option Exchange Program is approved, this will reduce the number of shares that Kala requests for approval under the 2017 Plan and will minimize the total dilution of stockholders that results from the rebalance of the employee and director equity by extinguishing the stock options, which create an artificial dilution by increasing the number of shares covered by outstanding awards even though such awards are not likely to ever be exercised. |
● | Replacement RSUs with Vesting Schedule will Provide Additional Retention Value. Under the Option Exchange Program, participants will surrender Eligible Options, including options that are fully vested when surrendered, for Replacement RSUs that are subject to vesting based on continued employment. For Eligible Options that are vested, the Replacement RSUs will vest over two years, with 50% of the Replacement RSUs vesting on the first anniversary of the Grant Date (as defined below), and 50% vesting on the second anniversary of the Grant Date. Unvested Eligible Options exchanged for Replacement RSUs will be subject to a revised vesting schedule whereby no such Replacement RSUs will vest until the second anniversary of the Grant Date, at which time a number of Replacement RSUs will vest that is equal to the unvested Eligible Options that would have vested during such two-year period, and the remaining Replacement RSUs will vest on the original vesting schedule of the unvested Eligible Options, provided that the applicable vesting schedule will vest in annual installments rather than monthly installments. While a portion of the Eligible Options may have otherwise expired during this new vesting period, the Replacement RSUs will not be subject to expiration. We believe that the Replacement RSUs, together with the new vesting requirements, represent a reasonable and balanced approach to the issues presented by the Eligible Options and creates the potential for a significant positive impact on retention, motivation and performance. |
● | 1-for-1 Exchange Ratio is Reasonable. The board considered the Black-Scholes value of the Eligible Options when it determined the appropriate exchange ratio for the proposed Option Exchange Program. Due to the high volatility of our stock price, the Black-Scholes value of a new stock option issued today is 88%, meaning that each of the Replacement RSUs has the value of approximately 1.14 of the Eligible Options. The board considered a variety of potential exchange ratios and determined that a 1-for-1 exchange was reasonable, given the Black-Scholes value of the Eligible Options, and that a 1-for-1 exchange would help to achieve our secondary goal of rebalancing employee and director equity. |
● | Option Exchange Program will Align Compensation Costs with the Retention Value of the Awards. Our underwater options have exercise prices that were equal to the fair market value of our common stock at the time of grant. Under applicable accounting rules, we are required to continue to recognize compensation expense related to these options while they remain outstanding, even if they are never exercised. We believe that it is an inefficient use of corporate resources to recognize compensation expense on awards that are not valued by our employees. Replacing underwater options that result in compensation accounting expense but |
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have little or no retention or incentive value with Replacement RSUs that will provide both enhanced retention and incentive value is a more efficient and effective compensation strategy. |
● | The Option Exchange Program will Decrease Pressure for Cash Awards. If we are unable to conduct the Option Exchange Program, we may find it necessary to provide long-term compensation to our senior management and other employees through other means, including through cash awards that would be in addition to our annual cash bonus program. We do not believe that use of cash for long-term incentives would create the same sustained alignment between our employees and our stockholders as long-term equity incentives, and our strong preference is to use our available cash for other business purposes. |
When considering how best to continue to incentivize and reward our employees who have underwater stock options, the compensation committee engaged Pearl Meyer to review and evaluate strategies to address this issue. These strategies included the Option Exchange Program, as well as other alternatives, including the following:
● | Repricing Current Options. To realign equity incentives, we considered whether we could reprice the Eligible Options. However, relying on option repricing limits flexibility to offer different award vehicles and vesting schedules. |
● | Grant Additional Equity Awards. We also considered special grants of additional stock options at current market price. However, these additional grants could substantially increase our overhang and the dilution to our stockholders and may not eliminate the employee retention, motivation and morale issues associated with the prior awards. |
● | Exchange Options for Options. We also considered implementing a program to exchange underwater options for new stock options. However, we believe such a program would be less likely to achieve our goals of retention and motivation, as new options could again lose value due to the significant volatility in our stock price. |
Summary of Currently Outstanding Options
As of February 21, 2023, there were 188,658 Eligible Options held by Eligible Holders, of which 99% were “underwater” on that date, meaning the exercise price of the option exceeded $11.90, which was the closing trading price of our common stock on that date. The weighted average exercise price of the Eligible Options is $254.33 and the weighted average remaining life of the Eligible Options is 6.55 years.
The following table sets forth the number of Eligible Options held by our Named Executive Officers, our other executive officers as a group, our non-employee directors, and our other employees as a group.
| | | | | |||
Eligible Stock Options | | ||||||
|
| Unvested |
| Vested |
| Total | |
Mark Iwicki | 19,669 | 53,558 | 73,227 |
| |||
Todd Bazemore | | 7,103 | | 14,631 | | 21,734 | |
Kim Brazzell, Ph.D. | | 6,523 | | 11,969 | | 18,492 | |
Darius Kharabi | | 2,455 | | 625 | | 3,080 | |
Mary Reumuth, C.P.A | | 4,743 | | 10,425 | | 15,168 | |
Eric L. Trachtenberg | | 5,078 | | 10,993 | | 16,071 | |
Non-Employee Directors as a Group | | 7,558 | | 5,497 | | 13,055 | |
Non-Executive Officer Employees as a Group | | 11,101 | | 16,730 | | 27,831 | |
TOTAL | | 64,230 | | 124,428 | | 188,658 | |
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Structure of the Option Exchange Program
The following is a summary of the terms of the Option Exchange Program recommended by our compensation committee and adopted by our board. Our compensation committee reserves the right to modify the terms of the Option Exchange Program, or to postpone or cancel the Option Exchange Program, whether before or after the exchange period has commenced. See “Potential Modification to Terms of Option Exchange Program.” The definitive terms of the Option Exchange Program will be set forth in an “Offer to Exchange” and related materials prepared under the federal securities laws, which are expected to be distributed to holders of Eligible Options as soon as practicable after our stockholders approve the Option Exchange Program.
● | Eligible Participants. Forty (40) individuals, consisting of our executive officers, other employees, and non-employee directors, comprise the Eligible Holders and will be eligible to exchange Eligible Options for Replacement RSUs through the Option Exchange Program. |
● | Eligible Stock Options. All currently outstanding, non-exercised stock options held by Eligible Holders will be eligible for the Option Exchange Program. |
● | Date of Grant of the Replacement RSUs. The Replacement RSUs will be granted immediately following the closing of the exchange period (the “Grant Date”). |
● | Establishment of a New Vesting Period. Replacement RSUs will be subject to different vesting schedules depending on the vested or unvested status of the Tendered Options. The Replacement RSUs exchanged for vested Tendered Options will be subject to a new vesting period and will vest over two years, with 50% of the Replacement RSUs vesting on the first anniversary of the Grant Date, and 50% vesting on the second anniversary of the Grant Date. Replacement RSUs exchanged for unvested Tendered Options will be subject to a revised vesting schedule whereby no such Replacement RSUs will vest until the second anniversary of the Grant Date, at which time a number of Replacement RSUs will vest that is equal to the unvested Tendered Options that would have vested during such two-year period, and the remaining Replacement RSUs will vest on the original vesting schedule of the unvested Tendered Options, provided that the applicable vesting schedule will vest in annual installments rather than monthly installments. While a portion of the Tendered Options may have otherwise expired during this new vesting period, the Replacement RSUs will not be subject to expiration. This vesting period supports the long-term nature of equity as an incentive vehicle and also motivates additional years of retention as compared to the Eligible Options, many of which are already vested. |
● | Completion of the Option Exchange Program Following Stockholder Approval. We expect that the exchange period will begin in the second quarter of 2023 shortly after approval by stockholders at the Special Meeting. Whether and when to commence the exchange period, and the closing date of the exchange period, will be determined by our compensation committee. |
Impact of Option Exchange Program
We currently estimate that the Option Exchange Program will cover approximately 188,658 outstanding Eligible Options. If this number of Eligible Options is exchanged in full, then we currently estimate that an equal number of Replacement RSUs will be granted to Eligible Holders. All Tendered Options will be cancelled on the closing date of the exchange period.
The Replacement RSUs will be subject to the new vesting date and expiration date described above. We believe that this approach will best align our employees with our other stockholders for retention purposes and to incentivize long-term stock price growth.
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Overview of the Option Exchange Program Process
Upon commencement of the exchange period, Eligible Holders holding Eligible Options will receive written materials in the form of an “Offer to Exchange” setting forth the precise terms of the Option Exchange. At or before the commencement of the exchange period, we will file the Offer to Exchange with the SEC as part of a tender offer statement on Schedule TO.
Eligible Holders who desire to exchange some or all of their Eligible Options under the Option Exchange Program must voluntarily elect to participate. All employees who are employed on the commencement date of the exchange period, remain employed on the Replacement RSU Grant Date, and hold Eligible Options may participate in the Option Exchange Program. Eligible Holders will be given a period of at least 20 business days to elect to surrender Eligible Options in exchange for Replacement RSUs. Upon completion of the Option Exchange Program, the Tendered Options will be cancelled and the Replacement RSUs will be granted. The applicable equity plan, along with any special terms set forth in the applicable award agreement or an Eligible Holder’s employment agreement, will govern any terms or conditions of Replacement RSUs not specifically addressed within this Proposal 1, including treatment on a termination of employment or a change in control of the Company.
Election to Participate
Eligible Holders will receive the Offer to Exchange and will be able to voluntarily elect to participate in the Option Exchange Program. If an individual is both a stockholder and an individual holding Eligible Options, voting to approve the Option Exchange Program does not constitute an election to participate in the Option Exchange Program. The Offer to Exchange described above will be provided if and when the Option Exchange Program is initiated; an Eligible Holders can elect to participate with respect to his or her Eligible Options only after that time.
Eligible Options to Be Cancelled via the Option Exchange Program
As of February 21, 2023, there were 199,843 total stock options outstanding under the 2009 Plan, 2017 Plan, and various inducement grants, of which 188,658 are Eligible Options as described herein.
We follow the provisions of the Financial Accounting Standards Board’s (“FASB”) Accounting Standards Codification (“ASC”) Topic 718—Stock Compensation (“ASC Topic 718”), which requires that employee equity awards be accounted for under the fair value method.
Any unrecognized compensation expense from the Tendered Options will be recognized prior to the end of the service period of the Replacement RSUs received in the Option Exchange Program. Incremental compensation cost, if any, associated with the Replacement RSUs under the Option Exchange Program will be recognized over the service period of the Replacement RSUs. However, compensation cost will not be recognized as to any Replacement RSUs that are forfeited due to employees not meeting the applicable vesting requirements.
The exchange of Tendered Options for Replacement RSUs pursuant to the Option Exchange Program should be treated as the cancellation of the Tendered Options and the grant of Replacement RSUs. The Company and participating employees should not recognize any income for U.S. federal income tax purposes upon either the cancellation of the Tendered Options or the grant of the Replacement RSUs. Instead, the date on which RSUs become vested and shares of common stock are delivered to the participating employee is the date that the fair market value of the shares will be attributed to the participating employee as ordinary income. Tax effects may vary in other countries; a more detailed summary of tax considerations will be provided to all participants in the Option Exchange Program documents.
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Potential Modification to Terms of Option Exchange Program
The terms of the Option Exchange Program will be described in an Offer to Exchange that will be filed with the SEC. Although we do not anticipate that the SEC will require us to materially modify the Option Exchange Program’s terms and conditions, it is possible that we will need to alter the terms of the Option Exchange Program to comply with comments from the SEC. Changes in the terms of the Option Exchange Program may also be required for tax purposes. It is possible that we may need to make modifications to the terms offered to eligible employees in countries outside the United States to comply with local legal requirements, or for tax or accounting reasons. Our compensation committee will retain the discretion to make any such necessary or desirable changes to the terms of the Option Exchange Program for purposes of complying with comments from the SEC or optimizing the U.S. or foreign tax consequences.
We may also find it necessary or appropriate to change the terms of the Option Exchange Program to take into account our administrative needs, legal requirements, accounting rules, other policy decisions that our compensation committee determines make it appropriate to change the Option Exchange Program, and for other or similar reasons. Without limiting the generality of this discretion, our compensation committee will retain the discretion to make any necessary or desirable changes to the terms of the Option Exchange Program at any time, and the compensation committee may change the exchange ratios (whether before or during the exchange period) if it determines that doing so will better advance the interests of the Company in the Option Exchange Program. The final terms of the Option Exchange Program will be set forth in the formal documents that comprise the Offer to Exchange. In addition, our compensation committee reserves the right to postpone or cancel the Option Exchange Program, whether before or after the exchange period has commenced.
We strongly believe that our equity program and emphasis on key employee stock ownership have been integral to our success. We believe that the Option Exchange Program will allow our equity program to attract, motivate, and retain the employee talent critical to attaining long-term improved company performance and stockholder returns. Therefore, we consider approval of the Option Exchange Program to be important to our future success, as it will enable the Company to strengthen the motivational and retention value of our stock option awards to our executive officers, other employees, and non-employee directors.
The affirmative vote of the holders of shares of Common Stock representing a majority of the votes cast by holders of all shares of Common Stock present or represented at the meeting, is required for approval of the Option Exchange Proposal.
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The board unanimously recommends that you vote “FOR” the approval of the Option Exchange Proposal. |
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PROPOSAL 2: RATIFICATION OF THE APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Our audit committee has appointed the firm of Deloitte & Touche LLP (“Deloitte”), an independent registered public accounting firm, as independent auditors for the fiscal year ending December 31, 2023. Although stockholder approval of our audit committee’s appointment of Deloitte is not required by law, our board believes that it is advisable to give stockholders an opportunity to ratify this appointment. If this proposal is not approved at the Special 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 Special 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, 2022 and December 31, 2021. 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 |
| 2022 |
| 2021 | | ||
Audit Fees(1) | $ | 782,094 | $ | 866,480 |
| ||
Audit-Related Fees | | | — | | | — | |
Tax Fees(2) | | | 158,475 | | | 147,808 | |
All Other Fees(3) | | | 1,895 | | | 1,895 | |
Total Fees | | $ | 942,464 | | $ | 1,016,192 | |
(1) | Audit fees consist of fees billed for professional services rendered by Deloitte & Touche LLP for the audits of our annual consolidated financial statements, the reviews of our interim consolidated financial statements, and related services that are normally provided in connection with statutory and regulatory filings or engagements, including, our registration statements. |
(2) | Tax fees consist of fees for professional services with respect to tax compliance, tax advice and tax planning. |
(3) | All other fees include fees and expenses for services which do not fall within the categories described above. All other fees consisted of a subscription to Deloitte & Touche LLP’s Accounting and Research Tool. |
The audit committee of our board 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 procedures during the audit of our financial statements, whether the independent registered public accounting firm would
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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.
The affirmative vote of the holders of shares of Common Stock representing a majority of the votes cast by holders of all shares of Common Stock present or represented at the meeting on Proposal 2 is required for the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the year ending December 31, 2023.
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The board unanimously recommends that you vote “FOR” the approval of the Auditor Ratification Proposal. |
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PROPOSAL 3: APPROVAL OF THE ADJOURNMENT PROPOSAL
Background of and Rationale for the Adjournment Proposal
The board believes that if the number of shares of the Company’s Common Stock outstanding and entitled to vote at the Special Meeting is insufficient to approve the Option Exchange Proposal and the Auditor Ratification, it is in the best interests of the stockholders to enable the board to continue to seek to obtain a sufficient number of additional votes to approve the Option Exchange Proposal and the Auditor Ratification.
In the Adjournment Proposal, we are asking stockholders to authorize the holder of any proxy solicited by the board to vote in favor of adjourning or postponing the Special Meeting or any adjournment or postponement thereof. If our stockholders approve this proposal, we could adjourn or postpone the Special Meeting, and any adjourned session of the Special Meeting, to use the additional time to solicit additional proxies in favor of the Option Exchange Proposal and the Auditor Ratification.
Additionally, approval of the Adjournment Proposal could mean that, in the event we receive proxies indicating that a majority in voting power of the votes to be cast by holders of our Common Stock will vote against the Option Exchange Proposal and the Auditor Ratification, we could adjourn or postpone the Special Meeting without a vote on the Option Exchange Proposal and the Auditor Ratification and use the additional time to solicit the holders of those shares to change their vote in favor of the Option Exchange Proposal and the Auditor Ratification.
The affirmative vote of the holders of shares of our Common Stock, representing a majority in voting power of the votes cast by holders of all of the shares of Common Stock present or represented at the Special Meeting and voting on the Adjournment Proposal is required for approval of the Adjournment Proposal.
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The board unanimously recommends that you vote “FOR” the approval of the Adjournment Proposal. |
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EXECUTIVE AND DIRECTOR COMPENSATION
Certain information regarding our executive officers as of March 1, 2023 is set forth below.
Name | Age | Position | |||
Mark Iwicki | | 56 | | Chief Executive Officer and Chairman of the Board | |
Todd Bazemore | | 52 | | President and Chief Operating Officer | |
Kim Brazzell, Ph.D. | | 70 | | Head of Research and Development and Chief Medical Officer | |
Darius Kharabi | | 44 | | Chief Business Officer | |
Mary Reumuth, C.P.A. | | 47 | | Chief Financial Officer and Treasurer | |
Eric L. Trachtenberg | | 49 | | General Counsel, Chief Compliance Officer and Corporate Secretary | |
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., Akero Therapeutics, Inc. and Third Harmonic Bio, 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.
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 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
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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. From August 2018 to November 2021, Mr. Kharabi was co-founder and CEO of Combangio Inc., a clinical stage ophthalmology mesenchymal stem cell secretome company acquired by Kala Pharmaceuticals in November 2021. He is the co-founder of Lagunita Biosciences LLC, an early-stage medical investment company, and from October 2015 to August 2018 he helped create and manage multiple Lagunita portfolio life-science companies, including xCella Biosciences, acquired by Ligand, Kedalion Therapeutics, acquired by Novartis AG, 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, a commercial stage orthopedic surgery navigation company, where his responsibilities included the launch of the KneeAlign® total knee arthroplasty navigation product line in the US and global markets. 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 2017 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 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 LLP. He holds a Juris Doctorate and Master of Business Administration from Temple University and a Bachelor of Science in Management from Tulane University.
Our board of directors is authorized to have, and currently consists of, eight members divided into three classes, with members of each class holding office for staggered three-year terms. There are currently twothree Class I directors (Andrew(Marjan Farid, M.D., Andrew I. Koven and Gregory D. Perry), whose terms expire at the 2024 annual meeting of stockholders; threetwo Class II directors (Mark Iwicki and Mark S. Blumenkranz, M.D. and Gregory Grunberg, M.D.), whose terms expire at the 20222025 annual meeting of stockholders; and three Class III directors (Robert Paull, C. Daniel Myers and Howard B. Rosen)
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whose terms expire at the 2023 annual meeting of stockholders (in all cases subject to the election and qualification of their successors or to their earlier death, resignation or removal).
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 member of our board of directors including the nominees for election as Class II directors, as of April 20, 2022.March 1, 2023. 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 or she 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—DirectorMatters-Director Nomination Process” that the nominating and corporate governance committee expects
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of each director. There are no family relationships among any of our directors nominees for director or executive officers.
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Andrew I. | |
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Gregory D. Perry(1) | |
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Mark Iwicki | | 56 | | Chief Executive Officer and Chairman of the Board | ||
Mark S. Blumenkranz, M.D.(2) | | 72 | | Director | ||
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C. Daniel | | 68 | | Director | ||
Robert | |
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Howard B. | |
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(1) | Member of the Audit Committee. |
(2) | Member of the Compensation Committee. |
(3) | Member of the Nominating and Corporate Governance Committee. |
Class I DirectorsMarjan Farid, M.D., has served as a member of our board of directors since October 2022. Since 2009, Dr. Farid has served as Professor of Clinical Ophthalmology, Director of Cornea, Refractive & Cataract Surgery, and Vice Chair of Ophthalmic Faculty at the Gavin Herbert Eye Institute, University of California Irvine. Her clinical practice is divided between patient care, teaching, and research. Dr. Farid’s research interests focus on corneal surgery, specifically the use of the femtosecond laser for corneal transplantation. Dr. Farid is also the founder of the Severe Ocular Surface Disease Center at the University of California Irvine. She performs limbal stem cell transplants, as well as artificial corneal transplantation, for the treatment of patients with severe ocular surface disease. Dr. Farid also serves as the Chair of the Corneal Clinic Committee of the American Society of Cataract and Refractive Surgery. Dr. Farid received a B.S. in Biology from the University of California - Los Angeles and M.D. from the University of California - San Diego. We believe that Dr. Farid’s experience in the ophthalmology field qualifies her to serve as a member of our board of directors.
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 focused 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.
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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. We believe that Mr. Koven’s extensive experience in the pharmaceutical industry qualifies him to serve as a member of our board of directors.
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Gregory D. Perryhas served as a member of our board of directors since February 2018. Mr. Perry has served as Chief Financial Officer for Finch Therapeutics Group, Inc., a public therapeutics company focused on the microbiome, sincefrom June 2018 and has announced his retirement effectiveto 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 asis our Chief Executive Officer and Chairman of our boardBoard of directors since September 2015.Directors. Please see “Executive Officers” above for biographical information regarding 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.Iwicki.
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, the Co-Director of its Ophthalmic Innovation Program since 2016, and he previously served as the chair of the Department of OphthalmologyChair from 1997 tountil 2015. Dr. Blumenkranz isplayed a co-founderleading role in the planning, fundraising and construction of Kedalion Therapeutics, Inc., or Kedalion, a venture-backed ophthalmic drug delivery companythe Byers Eye Institute at Stanford University and has served as its chief executive officer and chairman sinceDirector from its opening in September 2019.2010 through June 2015. 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, hepreviously served on the board of directors of Combangio, Inc, a Lagunita portfolio clinical-stage biotechnologyOculex Pharmaceuticals, Inc., which was acquired by Allergan, Inc. in 2003, Macusight, an ophthalmic pharmaceutical company, from February 2014acquired by Santen in 2010, Peak Surgical, Inc., an innovator in pulsed plasma mediated electro-surgery that was acquired by Medtronic, Inc. in 2011, and OptiMedica Corp. which was acquired by Abbott Medical Optics in 2013. In 2006, he co-founded Adverum Biotechnologies, Inc., and served as chairman of its board of directors through the closing of2016. In 2011, he co-founded Oculeve, Inc., and served on its board directors through its acquisition by usAllergan in November 2021.August 2015. He currently serveswas a founder and served on the board of directors of Verana Health, Inc., a digital medicine and health analytics company, from 2009 until 2020. He was the founding Chairman of Kedalion Therapeutics, an ophthalmic drug delivery company and served as its chief executive officer from September 2019 until June 2022, when it was acquired by Novartis AG. He also served on the board of directors of One Medical from 2019 until its acquisition by Amazon in
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February 2023. He currently serves as director at BVI Visitec, a global ophthalmic surgical company and Iveric Bio, Inc., a publicly traded ophthalmic biopharmaceutical company. Since October 2015, Dr. Blumenkranz has served as Managing Partner of Lagunita Biosciences LLC, an early-stage medical investment company, BVI Medical, Inc., a privately held
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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. Hethat is a past president of the American University Professors of Ophthalmology, the Retina Society, the Macula Society, and a Fellow Emeritus of the Corporation of Brown University.our current 5% beneficial stockholder. Dr. Blumenkranz holds an A.B. in Biology, Master’s Degree in Biochemical Pharmacology, and M.D. from Brown University. He completed his internship and ophthalmic residency at Stanford and subsequently the Executive Program at Stanford’s Graduate School of Business. 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 Myershas 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 Zelda Ventures, an investment advisor firm, since January 2023, to Broken String Biosciences, a biosciences company, since April 2022 and to Outsized Ventures, an early stageearly-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 2020.2020 and Aria Pharmaceuticals, Inc. from 2020 to 2023. 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
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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 company and our stockholders. These guidelines, which provide a framework for the conduct of our board of directors’ business, provide that, among other things:
In June 2021, our board of directors approved an update to our corporate governance guidelines to provide that, in any uncontested director election, any nominee for election who receives more “withhold” votes than votes “for” his or her election, is expected to promptly offer to our board of directors to tender his or her resignation as a director for consideration by the board of directors. Pursuant to the corporate governance guidelines, our board of directors must accept or reject a resignation within 90 days following the certification of election results and publicly disclose its decision in accordance with the procedures set forth in our corporate governance guidelines. For a summary description of these procedures, see “What happens if a director nominee receives more “WITHHOLD” votes than “FOR” votes in an uncontested election?”
Mr. Iwicki serves as Chairman of our board 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:
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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.
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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 committee 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.
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:
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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:
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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
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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
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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 directors has determined that the following transactions do not create a material direct or
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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, it 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 to and in the best interests of, or not contrary to, our best interests.
In addition to the compensation arrangements with directors and executive officers described elsewhere in this proxy statement, since January 1, 2020, we have engaged in the following transactions with our directors, executive officers and holders of more than 5% of our voting securities, and affiliates of our directors, executive officers and holders of more than 5% of our voting securities. These transactions were approved in accordance with our Related Person Transaction Policy to the extent required, and we believe that all of these transactions were on terms as favorable as could have been obtained from unrelated third parties.
Combangio Acquisition
On 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 connection with the Merger Agreement, pursuant to which on November 15, 2021, or the Closing, the Merger Subsidiary merged with and into Combangio with Combangio surviving such merger and becoming a direct wholly owned subsidiary of ours, or the Combangio Acquisition. In connection with the Closing, we made an upfront payment of an aggregate of $5.0 million in cash to former Combangio equityholders, subject to customary adjustments, and agreed to issue an aggregate of 7,788,667 shares of our common stock to the Combangio equityholders with an aggregate value of approximately $16,122,541, consisting of (i) an aggregate of 6,815,072 shares of common stock to be issued on January 3, 2022, or the Initial Shares, and (ii) an aggregate of 973,565 shares of common stock that are being held back by us and will be issuable subject to the terms of the Merger Agreement on the date that is fifteen months after the Closing, or the Holdback Shares. Such Holdback Shares will serve as partial security for the satisfaction of indemnification obligations and other payment obligations of the former Combangio equityholder. The Combangio equityholders included Dr. Blumenkranz, Mr. Kharabi, Lagunita Biosciences, LLC, of which Dr. Blumenkranz is a managing member, and Garland Investments, L.P., of which Dr. Blumenkranz is a managing member.
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.
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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 consideration 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 aggregate number of shares of our common stock that our then-current 5% stockholders purchased in our underwritten public offering in 2020.
| | | | | |
| | 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 |
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Registration Rights
We are a party to a registration rights agreement, as amended, with certain holders of our common stock, including Mr. Iwicki, certain of our 5% stockholders and their affiliates and entities affiliated with some of our directors. This registration rights agreement, as amended, provides these holders the right, subject to certain conditions, beginning after January 16, 2018, to demand that we file a registration statement or to request that their shares be covered by a registration statement that we are otherwise filing.
Indemnification Agreements
Our certificate of incorporation provides that we will indemnify our directors and officers to the fullest extent permitted by Delaware law. In addition, we have entered into indemnification agreements with all of our directors and officers.
EXECUTIVE AND DIRECTOR COMPENSATION
Certain information regarding our executive officers as of April 20, 2022 is set forth below.
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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
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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 launch 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 2017 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 our named executive officers. Each year, our compensation committee and board of directors review and determine the compensation of our named executive officers.
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Executive and Director Compensation Processes
Our executive compensation program is administered by the compensation committee of our board of directors, subject to the oversight and approval of our board of directors. Our compensation committee reviews our executive compensation practices on an annual basis and based on this review approves, or, as appropriate, makes recommendations to our board of directors for approval of our executive compensation program. In designing our executive compensation program, our compensation committee considers publicly available compensation data for national and regional companies in the biotechnology/pharmaceutical industry to help guide its executive compensation decisions at the time of hiring and for subsequent adjustments in compensation. 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 recommendations to the board of directors with respect thereto.
Since 2018, our compensation committee has retained Aon’s Human Capital Solutions practice, a division of Aon plc (formerly Radford), as its independent compensation consultant, to provide comparative data on executive compensation practices in our industry and to advise on our executive and director compensation programprograms generally. In January 2023, our compensation committee retained Pearl Meyer, as an additional independent compensation consultant, to advise on our Option Exchange Program. Although our compensation committee considers the advice and guidelines of Aon as to our executive and director compensation program,programs, and considered the advice of Pearl Meyer as to our Option Exchange Program, our compensation committee ultimately makes its own decisions about these matters and recommendations to our board about these matters. During the fiscal year ended December 31, 2021,2022, the compensation committee directly engaged Aon to develop a compensation peer group; assess our executive compensation program and develop recommendations covering salary, bonus, incentiveequity compensation for executives and equity compensation; review the peer group’s long-term incentive compensation trends; assist with governance related matters and risk-assessment; review and assist in designing an equity compensation strategy for non-officer employees; and review and make recommendations with respect to our director compensation program. Aon ultimately developed recommendations that were reviewed by the compensation committee.
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 recommendations 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 industry benchmarking against a peer group of publicly traded companies.
The compensation committee reviewed information regarding the independence and potential conflicts of interest of Aon and Pearl Meyer, taking into account, among other things, the factors set forth in the Nasdaq listing standards. Based on such review, the compensation committee concluded that the engagementengagements of Aon and Pearl Meyer did not raise any conflict of interest.
Under its charter, the compensation committee may form, and delegate authority to, subcommittees, consisting of independent directors, as it deems appropriate. During fiscal year 2021,2022, the compensation committee did not form or delegate authority to such subcommittees. In addition, under its charter, the compensation committee may delegate to one or more executive officers the power to grant options, restricted stock units or other stock awards pursuant to its 2017 Equity Incentive Plan, as amended, to employees who are not directors or executive officers of the Company. During fiscal year 2021,2022, the compensation committee delegated authority to our Chief Executive Officer to grant certain stock options and restricted stock units to non-executive employees.employees with respect to annual equity awards.
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 our named executive officers. Each year, our compensation committee and board of directors review and determine the compensation of our named executive officers.
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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 | |||||||||||||||||||||||
| Year |
| Salary |
| Bonus |
| Stock |
| Option |
| All other |
| Total | ||||||||||||||||||||||||
Mark Iwicki | | 2022 | | 682,110 | | 409,266 | | — | | 770,803 | | 6,120 | (4) | 1,868,299 | |||||||||||||||||||||||
Chief Executive Officer |
| 2020 |
| 585,500 | | 676,500 | | 2,665,962 | | 969,079 | | 4,719 | (6) | 4,901,760 | | 2021 | | 643,500 | | 270,270 | | 521,360 | | 1,330,806 | | 6,120 | (4) | 2,772,056 | |||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||||||
Todd Bazemore(4) |
| 2021 |
| 489,878 | | 171,457 | | 188,650 | | 483,131 | | 10,240 | (7) | 1,343,356 | |||||||||||||||||||||||
Todd Bazemore | | 2022 | | 515,000 | | 257,500 | | — | | 242,777 | | 10,540 | (5) | 1,025,817 | |||||||||||||||||||||||
President and Chief Operating Officer |
| 2020 |
| 455,700 | | 273,420 | | 1,170,000 | | 318,777 | | 10,419 | (8) | 2,228,316 | | 2021 | | 489,878 | | 171,457 | | 188,650 | | 483,131 | | 10,240 | (6) | 1,343,356 | |||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||||||
Kim Brazzell, Ph.D. |
| 2021 |
| 476,207 | | 150,005 | | 188,650 | | 483,131 | | 18,976 | (9) | 1,316,969 | | 2022 | | 500,000 | | 225,000 | | — | | 242,777 | | 25,912 | (7) | 993,689 | |||||||||
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 | |||||||||||||||||||||||
Head of Research and Development and Chief Medical Officer | | 2021 | | 476,207 | | 150,005 | | 188,650 | | 483,131 | | 18,976 | (8) | 1,316,969 |
(1) | The amounts reported in the “Bonus” column reflect discretionary annual cash bonuses earned by our named executive officers for their performance in the years ended December 31, |
(2) | The amounts reported in the “Stock Awards” column reflect |
(3) | The amounts reported in the “Option Awards” column reflect the aggregate grant date fair value of stock options (which for 2022, |
performance conditions were achieved, the value of the performance-based options at grant date for Mr. Iwicki, Mr. Bazemore and Dr. Brazzell would have been $246,414, $93,872 and $93,872, respectively. The |
| | | ||
| | Year Ended December 31, | ||
|
| 2022 |
| 2021 |
Expected Volatility | 72.9% - 87.0% | 72.7% - 74.2% | ||
Risk-Free Interest Rate | | 1.43% - 4.19% | 0.50% - 1.39% | |
Expected Dividend Yield | | 0% | 0% | |
Expected Term (in years) | | 5.50 – 6.10 | | 5.13 - 6.10 |
(4) |
Amount represents compensation of $6,120 from premiums we paid on behalf of Mr. Iwicki for life and disability insurance. |
Amount represents compensation of |
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Amount represents compensation of $5,800 from matching contributions made by us to Mr. Bazemore’s tax-qualified 401(k) Savings Plan account and $4,440 from premiums we paid on behalf of Mr. Bazemore for life and disability insurance. |
Amount represents compensation of |
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Amount represents compensation of $5,800 from matching contributions made by us to Dr. Brazzell’s tax-qualified 401(k) Savings Plan account and $13,176 from premiums we paid on behalf of Dr. Brazzell for life and disability insurance. |
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.
Mr. Iwicki’s, Mr. Bazemore’s and Dr. Brazzell’s annual base salaries were $682,110, $515,000 and $500,000, respectively, for 2022. In December 2020,2022, our compensation committee increased Mr. Iwicki’s, Mr. Bazemore’s and Dr. Brazzell’s annual base salaries to $643,500, $489,878$709,394, $535,600 and $476,207,$520,000, respectively, effective January 1, 2021.2023.
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 tomotivate 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 20212022 performance, our compensation committee awarded bonuses of $270,270, $171,457$409,266, $257,500 and $150,005$225,000 to Mr. Iwicki, Mr. Bazemore and Dr. Brazzell, respectively, which represented payments at 70%100% of each individual’s target bonus opportunity.opportunity (which target bonus opportunities, expressed as a percentage of 2022 annual base salary, were 60%, 50% and 45%, respectively). Mr. Iwicki’s individual performance-based target bonus amount for 2022,2023, expressed as a percentage of his 20222023 base salary, is 60%. Mr. Bazemore’s individual performance-based target bonus amount for 2022,2023, expressed as a percentage of his 20222023 base salary, is 50%. Dr. Brazzell’s individual performance-based target bonus amount for 2022,2023, expressed as a percentage of his 20222023 base salary, is 45%.
Equity Incentives. Although we do not have a formal policy with respect to the grant of equity incentive awards to ourexecutive 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 2021,2022, we granted to Mr. Iwicki options to purchase 303,00015,499 shares of our common stock and to each of Mr. Bazemore and Dr. Brazzell options to purchase 110,0004,759 shares of our common stock. All of theSuch 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 2021,2022, we also granted restrictedperformance-based stock units with respect to 76,000, 27,500 and 27,500 shares of our common stockoptions 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. AllBrazzell. Specified portions of the options granted in 2020 to Mr. Iwicki, Mr. Bazemore and Dr. Brazzellwill vest monthly as to 1/48th of the shares underlying the option. In June 2020, based on overallthe level of achievement of specified performance we granted restricted stock units with respectmetrics relating to 49,560, 19,000financial, operational and 19,000
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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% of the shares on October 26, 2021, the first anniversary of the achievement of the performance condition, andmetrics will be determined by the compensation committee based on pre-specified criteria. The target number of options eligible to vest as tounder the remaining 50%performance-based options is set forth in the table below. A higher or lower number of options than the
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target (or no portion) may vest based on the shares on October 26, 2022, the second anniversarylevel of the achievement of each of the performance condition.metrics, except that in no event will more than 150% of the target number of options vest.
| | | |||||
| Number of Shares Based on Level of Achievement | ||||||
Name | | Threshold(1) | | Target(2) | | Maximum(3) | |
Mark Iwicki | | 1,890 | | 3,780 | | 5,670 | |
Todd Bazemore | | 720 | | 1,440 | | 2,160 | |
Kim Brazzell | | 720 | | 1,440 | | 2,160 |
————————
(1) | Assumes all of the specified performance metrics are achieved at a threshold level of performance (50% of target). |
(2) | Assumes all of the specified performance metrics are achieved at a target level of performance (100% of target). |
(3) | Assumes all of the specified performance metrics are achieved at a maximum level of performance (150% of target). |
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 2009 Plan and our 2017 Equity Incentive Plan, as amended, see “—Stock Option and Other Compensation Plans”.
Historically, we have used stock options to compensate our executive officers in the form of initial grants in connection 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.vesting conditions. 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, prior to our IPO, 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 Nasdaq Capital Market on the date of grant.
In June 2020,
At times, we have also began to useused 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 bewere made by our board of directors.directors in 2021 and 2020. We have granted restricted stock units to our executive officers with both time-based andand/or performance-based vesting.vesting conditions. Time-based restricted stock unit awards vest over two or three years, as applicable. Restricted stock units with performance-based vesting conditions were all fully vested as of December 31, 2022. 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.Noneequivalents. None of our executive officers is currently party to an employment agreement that provides for automaticguaranteed equity awards.
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Outstanding Equity Awards at December 31, 20212022
The following table sets forth information regarding all outstanding equity awards held by each of our named executive officers as of December 31, 2021.2022.
| | | | | | | | | | | | | | | | | | | ||||||||||||||||||
|
| Option Awards |
| Stock Awards | ||||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Equity |
| | Option Awards | | Stock Awards | | | | | | | | | | | | | | | | Equity | | Incentive | ||||||||||||||
| | | | | | | | | | | | | | | | Equity | | Equity | | | | | | | | | | | | | | | | Incentive | | Plan |
| | | | | | | | | | | | | | | | Incentive | | Incentive | | | | | | | | | | | | | | | | Plan | | Awards: |
| | | | | | | | | | | | | | | | Plan Awards: | | Plan Awards: | | | | | | | | | | | | | | | | Awards: | | Market or |
| | | | | | | | | | | | | | | | Number of | | Market or | | | | | | | | | | | | | | Market | | Number of | | Payout |
| | | | | | | | | | | | Number | | Market | | Unearned | | Payout Value | | | | | | | | | | | | | | Value of | | Unearned | | Value of |
| | Number of | | Number of | | Number of | | | | | | of Shares | | Value | | Shares, Units | | of Unearned | | Number of | | Number of | | Number of | |
| | | | Number of | | Shares or | | Shares, | | Unearned |
| | Securities | | Securities | | Securities | | | | | | or Units | | of Shares | | or Other | | Shares, Units | | Securities | | Securities | | Securities | | | | | | Shares or | | Units of | | Units or | | Shares, Units |
| | Underlying | | Underlying | | Underlying | | | | | | of Stock | | or Units of | | Rights | | or Other | | Underlying | | Underlying | | Underlying | | | | | | Units of | | Stock That | | Other Rights | | or Other |
| | Unexercised | | Unexercised | | Unexercised | | Option | | Option | | That | | Stock That | | That Have | | Rights That | | Unexercised | | Unexercised | | Unexercised | | Option | | Option | | Stock That | | Have Not | | That Have | | Rights That |
| | Options (#) | | Options (#) | | Unearned | | Exercise | | Expiration | | Have Not | | Have Not | | Not | | Have Not | | Options (#) | | Options (#) | | Unearned | | Exercise | | Expiration | | Have Not | | Vested ($) | | Not Vested | | Have Not |
Name |
| Exercisable |
| Unexercisable | | Options (#) |
| Price ($) |
| Date | | Vested (#) | | Vested ($)(1) |
| Vested (#) |
| Vested ($) |
| Exercisable |
| Unexercisable |
| Options (#) |
| Price ($) |
| Date |
| Vested (#) |
| (1) |
| (#) |
| Vested ($) |
Mark Iwicki | | 272,496 | | — | | — | | 3.34 | | 6/3/2025 | | — | | — | | — | | — | | 5,449 | | — | | — | | 167.00 | | 6/3/2025 | | — | | — | | — | | — |
| | 378,844 | | — | | — | | 5.21 | | 9/11/2025 | | — | | — | | — | | — | | 7,576 | | — | | — | | 260.50 | | 9/11/2025 | | — | | — | | — | | — |
| | 609,811 | | — | | — | | 3.34 | | 6/17/2026 | | — | | — | | — | | — | | 12,195 | | — | | — | | 167.00 | | 6/17/2026 | | — | | — | | — | | — |
| | 78,632 | | — | | — | | 15.00 | | 7/18/2027 | | — | | — | | — | | — | | 1,572 | | — | | — | | 750.00 | | 7/18/2027 | | — | | — | | — | | — |
| | 220,417 | | 9,583 | (2) | — | | 12.86 | | 2/6/2028 | | — | | — | | — | | — | | 4,599 | | | | — | | 643.00 | | 2/6/2028 | | — | | — | | — | | — |
| | 335,417 | | 124,583 | (3) | — | | 5.19 | | 1/1/2029 | | — | | — | | — | | — | | 9,008 | | 191 | (2) | — | | 259.50 | | 1/1/2029 | | — | | — | | — | | — |
| | 174,896 | | 190,104 | (4) | — | | 3.84 | | 1/1/2030 | | — | | — | | — | | — | | 5,320 | | 1,979 | (3) | — | | 192.00 | | 1/1/2030 | | — | | — | | — | | — |
| | 69,438 | | 233,562 | (5) | — | | 6.86 | | 1/3/2031 | | — | | — | | — | | — | | 2,898 | | 3,161 | (4) | — | | 343.00 | | 1/3/2031 | | — | | — | | — | | — |
| | — | | — | | — | | — | | — | | 24,780 | (7) | 29,984 | | — | | — |
| 3,549 |
| 11,950 | (5) | — | | 68.50 |
| 1/3/2032 |
| — |
| — |
| — |
| — |
| | — | | — | | — | | — | | — | | 89,150 | (8) | 107,872 | | — | | — |
| — |
| — | | 1,890 | (6) | 68.50 |
| 1/3/2032 |
| — |
| — |
| — |
| — |
| | — | | — | | — | | — | | — | | 76,000 | (9) | 91,960 | | — | | — |
| — |
| — | | — | | — |
| — |
| 1,014 | (8) | 38,684 |
| — |
| — |
Todd Bazemore | | 172,000 | | — | | — | | 19.60 | | 11/19/2027 | | — | | — | | — | | — |
| 3,439 |
| — | | — | | 980.00 |
| 11/19/2027 |
| — |
| — |
| — | | — |
| | 23,958 | | 1,042 | (2) | — | | 12.86 | | 2/6/2028 | | — | | — | | — | | — |
| 499 |
| | | — | | 643.00 |
| 2/6/2028 |
| — |
| — | | — | | — |
| | 127,604 | | 47,396 | (3) | — | | 5.19 | | 1/1/2029 | | — | | — | | — | | — |
| 3,426 |
| 73 | (2) | — | | 259.50 |
| 1/1/2029 |
| — |
| — |
| — |
| — |
| | 94,792 | | 80,208 | (6) | — | | 3.45 | | 10/10/2029 | | — | | — | | — | | — |
| 2,769 |
| 730 | (7) | — | | 172.50 |
| 10/10/2029 |
| — |
| — |
| — |
| — |
| | 57,500 | | 62,500 | (4) | — | | 3.84 | | 1/1/2030 | | — | | — | | — | | — |
| 1,750 |
| 650 | (3) | — | | 192.00 |
| 1/1/2030 |
| — |
| — |
| — |
| — |
| | 25,208 | | 84,792 | (5) | — | | 6.86 | | 1/3/2031 | | — | | — | | — | | — |
| 1,050 |
| 1,149 | (4) | — | | 343.00 |
| 1/3/2031 |
| — |
| — |
| — | �� | — |
| | — | | — | | — | | — | | — | | 9,500 | (7) | 11,495 | | — | | — |
| 1,089 |
| 3,670 | (5) | — | | 68.50 |
| 1/3/2032 |
| — |
| — |
| — |
| — |
| | — | | — | | — | | — | | — | | 40,500 | (8) | 49,005 | | — | | — |
| — |
| — | | 720 | (6) | 68.50 |
| 1/3/2032 |
| — |
| — |
| — |
| — |
| | — | | — | | — | | — | | — | | 27,500 | (9) | 33,275 | | — | | — |
| — |
| — | | — | | — |
| — |
| 367 | (8) | 14,001 |
| — |
| — |
Kim Brazzell, Ph.D | | 15,430 | | — | | — | | 5.21 | | 10/2/2025 | | — | | — | | — | | — |
| 308 |
| — | | — | | 260.50 |
| 10/2/2025 |
| — |
| — |
| — |
| — |
| | 102,341 | | — | | — | | 3.34 | | 6/17/2026 | | — | | — | | — | | — |
| 2,047 |
| — | | — | | 167.00 |
| 6/17/2026 |
| — |
| — |
| — | | — |
| | 47,142 | | — | | — | | 15.00 | | 7/18/2027 | | — | | — | | — | | — |
| 942 |
| — | | — | | 750.00 |
| 7/18/2027 |
| — |
| — |
| — | | — |
| | 67,083 | | 2,917 | (2) | — | | 12.86 | | 2/6/2028 | | — | | — | | — | | — |
| 1,399 |
| — | | — | | 643.00 |
| 2/6/2028 |
| — |
| — |
| — | | — |
| | 109,375 | | 40,625 | (3) | — | | 5.19 | | 1/1/2029 | | — | | — | | — | | — |
| 2,936 |
| 63 | (2) | — | | 259.50 |
| 1/1/2029 |
| — |
| — |
| — |
| — |
| | 57,500 | | 62,500 | (4) | — | | 3.84 | | 1/1/2030 | | — | | — | | — | | — |
| 1,745 |
| 654 | (3) | — | | 192.00 |
| 1/1/2030 |
| — |
| — |
| — |
| — |
| | 25,208 | | 84,792 | (5) | — | | 6.86 | | 1/3/2031 | | — | | — | | — | | — |
| 1,050 |
| 1,149 | (4) | — | | 343.00 |
| 1/3/2031 |
| — |
| — |
| — |
| — |
| | — | | — | | — | | — | | — | | 9,500 | (7) | 11,495 | | — | | — |
| 1,089 |
| 3,670 | (5) | — | | 68.50 |
| 1/3/2032 |
| — |
| — |
| — |
| — |
| | — | | — | | — | | — | | — | | 40,500 | (8) | 49,005 | | — | | — |
| — |
| — | | 720 | (6) | 68.50 |
| 1/3/2032 |
| — |
| — |
| — |
| — |
| | — | | — | | — | | — | | — | | 27,500 | (9) | 33,275 | | — | | — |
| — |
| — | | — |
| — |
| — |
| 367 | (8) | 14,001 |
| — |
| — |
(1) | Amounts shown are based on a price of |
(2) |
The option vests over four years, with 2.0833% of the shares underlying the option vested on February 2, 2019 and 2.0833% of the shares vesting monthly thereafter. |
The option vests over four years, with 2.0833% of the shares underlying the option vested on February 2, 2020 and 2.0833% of the shares vesting monthly thereafter. |
The option vests over four years, with 2.0833% of the shares underlying the option vested on February 4, 2021 and 2.0833% of the shares vesting monthly thereafter. |
(5) | The option vests over four years, with 2.0833% of the shares underlying the option vested on February 3, 2022 and 2.0833% of the shares vesting monthly thereafter. |
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(6) | The option vests based on the level of achievement of specified performance metrics, as more fully described above under “—Narrative Disclosure to Summary Compensation Table”. Options are included in this table at the threshold level of achievement . As of December 31, 2022, none of the performance metrics had been certified by the compensation committee as having been achieved. |
(7) | The option vests over four years, with 2.0833% of the shares underlying the option vested on November 15, 2019 and 2.0833% of the shares vesting monthly thereafter. |
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(8) |
The restricted stock units vest as to 1/ |
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,$709,394, effective January 1, 2022.2023. 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
29
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,$535,600, effective January 1, 2022.2023. In addition, Mr. Bazemore is eligible to receive a discretionary bonus in a target amount of 50% of 2022his 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
2930
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 2021,2022, Dr. Brazzell’s annual base salary was increased to $500,000,$520,000, effective January 1, 2022.2023. In addition, Dr. Brazzell is eligible to receive a discretionary bonus in a target amount of 45% of 2022his 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 isand certain options are 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.
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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
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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 under 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, ourOur 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:
● | interpret the provisions of the 2009 Plan and all stock rights and make all rules and determinations that it deems necessary or advisable for the administration of the 2009 Plan; |
● | amend any term or condition of an outstanding stock right, including, without limitation, to reduce or increase the exercise price or purchase price, accelerate the vesting or extend the expiration date, provided that no such change will impair a participant’s rights under any prior grant unless we obtain the participant’s consent; |
● | purchase and/or cancel a stock right previously granted and grant other stock rights in substitution, which may cover the same or a different number of shares and which may have a lower or higher exercise or purchase price per share, based on such terms and conditions as the board of directors establishes and the participant accepts; and |
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● | adopt any sub-plans applicable to residents of any specified jurisdiction as it deems necessary or appropriate to facilitate the 2009 Plan or to comply with or take advantage of any tax or other laws applicable to us, any of our affiliates, or to participants, which sub-plans may include additional restrictions or conditions applicable to stock rights or shares issuable pursuant to a stock right. |
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
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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:
● | the number of shares of our common stock deliverable upon the exercise of an option or acceptance of a stock grant; |
● | the exercise or purchase price per share; and |
● | any other term or condition of a stock right. |
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:
● | provide for the continuation of the outstanding options by equitably substituting for the shares of our common stock then underlying such options either with securities of any successor or acquiring entity or the consideration payable with respect to the outstanding shares of our common stock in connection with the corporate transaction; |
● | provide by written notice to the participants that the outstanding options will terminate unless exercised (to the extent then exercisable or made partially or fully exercisable by our board of directors for purposes of the corporate transaction) within a specified period following the date of the notice; or |
● | terminate each outstanding option in exchange for a payment equal to the consideration payable upon consummation of the corporate transaction to a holder of the number of shares of our common stock into which such option would have been exercisable (to the extent then exercisable or made partially or fully exercisable by our board of directors for purposes of the corporate transaction), minus the aggregate exercise price of such option. |
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:
● | provide for the continuation of the outstanding stock grants on the same terms and conditions by equitably substituting for the shares of our common stock then subject to such stock grants either with securities of any successor or acquiring entity or the consideration payable with respect to the outstanding shares of our common stock in connection with the corporate transaction; or |
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● | provide that each outstanding stock grant will terminate in exchange for a payment equal to the consideration payable upon consummation of the corporate transaction to a holder of the number of shares of our common stock comprising such stock grant (to the extent such stock grant is no longer subject to any forfeiture or repurchase rights or our board of directors waives all forfeiture and repurchase rights upon the corporate transaction). |
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,February 21, 2023, options to purchase 1,921,75231,681 shares of common stock were outstanding under the 2009 Plan at a weighted average exercise price of $3.66$188.32 per share, and 983,657 options to purchase shares of our common stock had been exercised.share.
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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;75,737; plus (2) 241,5484,830 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 3,573,76671,475 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 has 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:
● | the number of shares of our common stock covered by options and the dates upon which the options become exercisable; |
● | the type of options to be granted; |
● | the duration of options, which may not be in excess of ten years; |
● | the exercise price of options, which must be at least equal to the fair market value of our common stock on the date of grant; and |
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● | the number of shares of our common stock subject to and the terms of any stock appreciation rights, restricted stock awards, restricted stock units or other stock-based awards and the terms and conditions of such awards, including conditions for repurchase, issue price and repurchase price (though the measurement price of stock appreciation rights must be at least equal to the fair market value of our common stock on the date of grant and the duration of such awards may not be in excess of ten years). |
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 price 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
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distribution to holders of our common stock other than an ordinary cash dividend, our board of directors shall equitably adjust:
● | the number and class of securities available under the 2017 Plan; |
● | the share counting rules under the 2017 Plan; |
● | the number and class of securities and exercise price per share of each outstanding option; |
● | the share and per-share provisions and the measurement price of each outstanding stock appreciation right; |
● | the number of shares subject to, and the repurchase price per share subject to, each outstanding restricted stock award; and |
● | the share and per-share related provisions and the purchase price, if any, of each other stock-based award. |
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:
● | provide that all outstanding awards shall be assumed, or substantially equivalent awards shall be substituted, by the acquiring or successor corporation (or an affiliate thereof); |
● | upon written notice to a participant, provide that all of the participant’s unvested awards will be forfeited, and/or vested but unexercised awards will terminate, immediately prior to the consummation of such reorganization event unless exercised by the participant (to the extent then exercisable) within a specified period following the date of the notice; |
● | provide that outstanding awards shall become exercisable, realizable or deliverable, or restrictions applicable to an award shall lapse, in whole or in part, prior to or upon such reorganization event; |
● | in the event of a reorganization event pursuant to which holders of shares of our common stock will receive a cash payment for each share surrendered in the reorganization event, make or provide for a cash payment to |
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participants with respect to each award held by a participant equal to (1) the number of shares of our common stock subject to the vested portion of the award (after giving effect to any acceleration of vesting that occurs upon or immediately prior to such reorganization event) multiplied by (2) the excess, if any, of the cash payment for each share surrendered in the reorganization event over the exercise, measurement or purchase price of such award and any applicable tax withholdings, in exchange for the termination of such award; and/or |
● | provide that, in connection with a liquidation or dissolution, awards shall convert into the right to receive liquidation proceeds (if applicable, net of the exercise, measurement or purchase price thereof and any applicable tax withholdings). |
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 settled in accordance with the terms of the applicable restricted stock unit agreement.
Upon the occurrence of a reorganization event other than a liquidation or dissolution, the repurchase and other rights with respect to outstanding restricted stock awards will continue for the benefit of the successor company and will, unless our board of directors may otherwise determine, apply to the cash, securities or other property into which shares
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of our common stock are converted or exchanged pursuant to 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 automatically 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 required to comply with applicable law or stock market requirements.
As of March 31, 2022,February 21, 2023, options to purchase 9,503,444157,512 shares of common stock were outstanding under the 2017 Plan at a weighted average exercise price of $5.53$259.54 per share, and 77,2551,521 options to purchase shares of our common stock had been exercised. As of March 31, 2022,February 21, 2023, restricted stock units with respect to 1,106,702148,870 shares of common stock were outstanding under the 2017 Plan.
As of March 31, 2022, 1,842,052February 21, 2023, 8,876 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 stockholders 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 223,3414,466 shares of our common stock. The number of shares of our common stock reserved for issuance under the 2017 ESPP will automatically increase on the first day of each fiscal year, beginning on January 1, 2019 and ending on December 31, 2029, in an amount equal to the lowest of: (1) 893,44117,868 shares of our common stock; (2) 1% of the total number of shares of our common stock outstanding on the first day of the applicable fiscal year; and (3) an amount determined by our board of directors. The number of shares authorized for issuance under the 2017 ESPP has increased each year, pursuant to the terms of the 2017 ESPP, on the first of January beginning in 2019 by an amount equal to 1% of our then-outstanding common stock.
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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:
● | such person is customarily employed by us or a designated subsidiary for more than 20 hours a week and for more than five months in a calendar year; and |
● | such person was our employee or an employee of a designated subsidiary on the first day of the applicable offering period under the 2017 ESPP. |
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 25,000500 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 ESPP and any other employee stock
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purchase plan of ours or of 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 purchase shares of our common stock under the 2017 ESPP that would result in the employee owning 5% or more of the total combined voting power or value of our stock or the stock of any of our subsidiaries.
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 period will be deemed to have exercised an option to purchase from us the number of whole shares of our common stock that his or her accumulated payroll deductions on such date will buy, not in excess of the maximum numbers set forth above. Under the terms of the 2017 ESPP, the purchase price shall be determined by our board of directors for each offering period and will be at least 85% of the applicable closing price of our common stock. If our board of directors does not make a determination of the purchase price, the purchase price will be 85% of the lesser of the closing price of our common stock on the first business day of the offering period or on the last business day of the offering period.
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.
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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:
● | provide that options shall be assumed, or substantially equivalent options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof); |
● | upon written notice to employees, provide that all outstanding options will be terminated immediately prior to the consummation of such reorganization event and that all such outstanding options will become exercisable to the extent of accumulated payroll deductions as of a date specified by our board of directors or committee in such notice, which date shall not be less than ten days preceding the effective date of the reorganization event; |
● | upon written notice to employees, provide that all outstanding options will be cancelled as of a date prior to the effective date of the reorganization event and that all accumulated payroll deductions will be returned to participating employees on such date; |
● | in the event of a reorganization event under the terms of which holders of our common stock will receive upon consummation thereof a cash payment for each share surrendered in the reorganization event, change the last day of the offering period to be the date of the consummation of the reorganization event and make or provide for a cash payment to each employee equal to (1) the cash payment for each share surrendered in the reorganization event times the number of shares of our common stock that the employee’s accumulated payroll deductions as of immediately prior to the reorganization event could purchase at the applicable purchase price, where the cash payment for each share surrendered in the reorganization event is treated as the fair market value |
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of our common stock on the last day of the applicable offering period for purposes of determining the purchase price and where the number of shares that could be purchased is subject to the applicable limitations under the 2017 ESPP minus (2) the result of multiplying such number of shares by the purchase price; and/or |
● | provide that, in connection with our liquidation or dissolution, options shall convert into the right to receive liquidation proceeds (net of the purchase price thereof). |
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.
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 20212022 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, which was equal to $19,500 in 2021 and $20,500 in 2022. The discretionary matching contributions arewere capped at $5,800 and $6,100 in 2021 and 2022, respectively.2022. 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.
Pay Versus Performance Disclosure
The following tables and related disclosures provide information about (i) the “total compensation” of our CEO, and our other named executive officers (the “Other NEOs” or the “Non-CEO NEOs”) as presented in the Summary Compensation Table on page 25 of this proxy statement, (ii) the “compensation actually paid” to our CEO and our Other NEOs, as calculated pursuant to the SEC’s pay-versus-performance rules, (iii) certain financial performance measures, and (iv) the relationship of the “compensation actually paid” to those financial performance measures.
This disclosure has been prepared in accordance with Item 402(v) of Regulation S-K under the Securities Exchange Act of 1934, as amended, and does not necessarily reflect value actually realized by the executives or how our compensation committee evaluates compensation decisions in light of company or individual performance.
Year | | Summary Compensation Table Total for CEO(1) | | Compensation Actually Paid to CEO(1)(2)(3) | | Average Summary Compensation Table Total for Non-CEO NEOs(1) | | Average Compensation Actually Paid to Non-CEO NEOs(1)(2)(3) | | Value of Initial Fixed $100 Investment Based On Total Shareholder Return(4) | | Net Income/ (Loss) (in thousands) | |
| | | | | | ||||||||
2022 | $ | 1,868,299 | $ | 1,221,699 | $ | $1,009,753 | $ | 772,313 | $ | 11.25 | | TBD(5) | |
2021 | $ | 2,772,056 | $ | (1,025,526) | $ | 1,330,163 | $ | (282,646) | $ | 17.85 | $ | (142,605) |
(1) | The CEO for 2022 and 2021 is Mark Iwicki. The Non-CEO NEOs for whom the average compensation is presented in this table for 2022 and 2021 are Todd Bazemore and Kim Brazzell. |
(2) | The amounts shown as Compensation Actually Paid have been calculated in accordance with Item 402(v) of Regulation S-K and do not reflect compensation actually realized or received by the Company’s NEOs. These amounts reflect total compensation as set forth in the Summary Compensation Table for each year, adjusted as described in footnote 3 below. |
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(3) | Compensation Actually Paid reflects the exclusions and inclusions for the CEO and the Non-CEO NEOs set forth below. Amounts excluded, which are set forth in the “Minus Stock and Option Awards from Summ. Comp. Table” columns below, represent the Stock Awards and Option Awards reported in the Stock Awards and Option Awards columns of the Summary Compensation Table for each applicable year. Amounts added back to determine Compensation Actually Paid are made up of the following components which are set forth in the table below, as applicable: (i) the fair value as of the end of the fiscal year of outstanding and unvested equity awards granted in that year; (ii) the change in fair value during the year of equity awards granted in prior years that remained outstanding and unvested at the end of the year ; (iii) the fair value as of the vesting date of equity awards that were granted and vested in that year; and (iv) the change in fair value during the year through the vesting date of equity awards granted in prior years that vested during that year . The fair value at the end of the prior year of awards granted in any prior year that failed to meet applicable vesting conditions during the covered year are subtracted, although there were no such awards for the CEO or the Non-CEO NEOs in 2021 or 2022. Equity values are calculated in accordance with ASC Topic 718. |
Year | Summary Comp. Table Total for CEO | Minus Stock and Option Awards from Summ. Comp. Table | Plus Year-End Equity Value of Unvested Awards Granted During Year | Plus Change in Value of Unvested Awards Granted in Prior Years | Plus Value of Awards Granted and Vested During Year | Plus Change in Value of Prior Years’ Awards Vested During Year | Comp. Actually Paid to CEO |
2022 | $1,868,299 | $770,803 | $373,916 | $(87,941) | $56,598 | $(218,370) | $1,221,699 |
2021 | $2,772,056 | $1,852,166 | $237,713 | $(1,691,503) | $211,107 | $(702,733) | $(1,025,526) |
Year | Avg. Summary Comp. Table Total for Other NEOs | Minus Avg. Stock and Option Awards from Summ. Comp. Table | Plus Avg. Year-End Equity Value of Unvested Awards Granted During Year | Plus Avg. Change in Value of Unvested Awards Granted in Prior Years | Plus Avg. Value of Awards Granted and Vested During Year | Plus Avg. Change in Value of Prior Years’ Awards Vested During Year | Average Comp. Actually Paid to Other NEOs |
2022 | $1,009,753 | $242,777 | $119,239 | $(35,980) | $17,383 | $(95,305) | $772,313 |
2021 | $1,330,163 | $671,781 | $86,330 | $(774,487) | $75,591 | $(328,462) | $(282,646) |
For the equity values included in the above tables, the valuation assumptions used to calculate fair values of stock options were materially different from those disclosed at the time of the grant of the stock options. The assumptions used in determining fair value of the stock options that vested during 2021 and 2022, or that were outstanding as of December 31, 2021 or December 31, 2022, as applicable, are as follows:
| | | ||
| Options Vested During Year or Outstanding on | |||
| | December 31 of: | ||
| | 2022 | | 2021 |
Expected Volatility |
| 76.55% - 90.12% | 73.56% - 79.70% | |
Risk-Free Interest Rate | | 1.44% - 4.20% | 0.11% - 1.56% | |
Expected Dividend Yield | | 0% | 0% | |
Expected Term (in years) | | 4.87 - 9.83 | | 1.98 – 9.41 |
(4) | Total Shareholder Return illustrates the value, as of the last day of the indicated fiscal year, of an investment of $100 in Kala common stock on December 31, 2020. |
(5) | Net income/(loss) for 2022 has not yet been finalized, and this table will be updated after 2022 financial results are released. |
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The following chart sets forth the relationship between Compensation Actually Paid to our CEO, the average of Compensation Actually Paid to our Non-CEO NEOs, and the Company’s TSR over the fiscal two year period from 2021 through 2022.
Description of Relationship Between NEO Compensation Actually Paid and Net Income/(Loss)
Net income for 2022 has not been finalized as of the date of this Proxy Statement. This description will be provided after 2022 financial results are released.
Rule 10b5‑10b5‑1 Sales Plans
Our directors and executive officers have adopted and may in the future adopt written plans, known as Rule 10b5‑1 plans, in which they will contract with a broker to buy or sell shares of our common stock on a periodic basis. Under a Rule 10b5‑1 plan, a broker executes trades pursuant to parameters established by the director or officer when entering into the plan, without further direction from the director or officer. It also is possible that the director or officer could amend or terminate the plan when not in possession of material, nonpublic information. In addition, our directors and executive officers may buy or sell additional shares outside of a Rule 10b5‑1 plan when they are not in possession of material, nonpublic information.
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.
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The table below shows all compensation to our non-employee directors during 2021.2022.
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| | 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 |
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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 |
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Gregory D. Perry |
| 70,000 |
| — |
| 117,600 |
| 187,600 |
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Howard B. Rosen |
| 61,590 |
| — |
| 117,600 |
| 179,190 |
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Rajeev Shah(9) | | 55,163 | | — | | 44,200 | | 99,363 | |
Name |
| Fees |
| Option |
| Stock |
| Total |
|
Mark S. Blumenkranz | | 56,083 | | 10,152 | | — | | 66,235(4) | |
Marjan Farid(5) | | 9,266 | | 7,527 | | — | | 16,793 | |
Gregory Grunberg(6) | | 27,692 | | — | | — | | 27,692 | |
Andrew I. Koven | | 88,750 | | 12,690 | | — | | 101,440 | |
C. Daniel Myers | | 62,500 | | 10,152 | | — | | 72,652 | |
Robert Paull | | 70,000 | | 10,152 | | — | | 80,152 | |
Gregory D. Perry | | 70,000 | | 10,152 | | — | | 80,152 | |
Howard B. Rosen | | 67,500 | | 10,152 | | — | | 77,652 | |
(1) | The aggregate amount of outstanding options and RSUs held by each non-employee director as of December 31, |
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| Aggregate | | Aggregate Stock Units Outstanding |
Mark S. Blumenkranz | | 1,640 | | — |
Marjan Farid | | 1,600 | | — |
Gregory Grunberg | | — | | — |
Andrew I. Koven | | 2,197 | | 1,060 |
C. Daniel Myers | | 1,640 | | — |
Robert Paull | | 1,738 | | 800 |
Gregory D. Perry | | 1,738 | | 800 |
Howard B. Rosen | | 2,502 | | 800 |
(2) | The amounts reported in the “Option Awards” |
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(3) | The number of shares of common stock underlying stock options granted to the following non-employee directors in |
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Mark S. Blumenkranz | | 6/16/2022 | | 800 | |
Marjan Farid | | 10/31/2022 | | 1,600 | |
Gregory Grunberg | | — | | — | |
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Andrew I. Koven | | 6/ | |
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C. Daniel Myers | |
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Gregory D. Perry | | 6/ | |
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Howard B. Rosen | | 6/ | |
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| Does not include consideration received by Dr. Blumenkranz from us in his capacity as an equityholder of Combangio in connection with the Combangio Acquisition. |
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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, 2021,2022, our non-employee directors were entitled to compensation for their services on our board of directors as follows:
● | each non-employee director was entitled to receive an option to purchase 1,600 shares of our common stock, upon his or her initial election or appointment to our board of directors, which option vests 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 vest automatically as to 100% of the unvested portion of such option upon specified change in control events, which we refer to as the Initial Grant; |
● | each non-employee director who has then served on our board of directors for at least six months was entitled to receive, on the date of the first board meeting held after each annual meeting of stockholders, an option to purchase 800 shares of our common stock, and if then serving as the lead independent director, an option to purchase 1,000 shares of our common stock, which 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 options upon specified change in control events, which we refer to as the Annual Grant; |
● | each non-employee director was entitled to receive an annual fee of $50,000; |
● | the lead independent director was entitled to receive an additional annual fee of $18,750; and |
● | each non-employee director who served as member of a committee of our board of directors was entitled to receive additional compensation as follows: |
o | audit committee—an annual non-chair retainer of $10,000; chair annual retainer of $20,000; |
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o | compensation committee—an annual non-chair retainer of $7,500; chair annual retainer of $15,000; and |
o | nominating and corporate governance committee—an annual non-chair retainer of $5,000; chair annual retainer of $10,000. |
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.
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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, 2021.2022. As of December 31, 2021,2022, 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 |
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| | 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 |
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| | warrants and | | | warrants and | | securities reflected |
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| | rights | | | rights | | in column (a)) |
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| (a) |
| | (b) |
| (c) |
| | Number of |
| Weighted-Average |
| Number of | | |
Equity compensation plans approved by security holders |
| 8,709,021 | (1) | $ | 6.80 | (2) | 3,064,802 | (3)(4)(5) |
| 207,791 | (1) | $ | 252.07 | (2) | 92,923 | (3)(4)(5) |
Equity compensation plans not approved by security holders |
| 1,291,909 | (6) | $ | 6.59 |
| — | | | 11,080 | (6) | $ | 336.62 | | — | |
Total |
| 10,000,930 | | $ | 6.77 |
| 3,064,802 | | | 218,871 | | $ | 256.35 | | 92,923 | |
(1) | Includes shares of our common stock issuable upon exercise of options to purchase common stock awarded under our 2009 Plan and |
(2) | The calculation does not take into account the |
(3) | Includes |
(4) | The number of shares of common stock reserved for issuance under the 2017 Plan will be increased on the first day of each fiscal year through January 1, 2027, in amount equal to the lowest of: (i) |
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or (iii) an amount determined by our board of directors. On January 1, |
(5) | The number of shares of our common stock reserved for issuance under the 2017 ESPP will be increased on the first day of each fiscal year through January 1, 2029, in an amount equal to the lowest of: (1) |
(6) | Represents inducement option awards granted to employees in accordance with Nasdaq Listing Rule 5635(c)(4) each with an exercise price equal to closing price of our common stock on the date of grant and vesting over four |
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years with 25% of the shares underlying each option vesting on the first anniversary of the applicable employee’s new hire date and 2.0833% vesting monthly thereafter. Includes inducement option awards to purchase |
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 irrespective of any general incorporation language in any such filing, except to the extent that we specifically incorporate this information by reference, and shall not otherwise be deemed filed under such acts.
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
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Proposal 1: Election of Directors
Our Restated Certificate of Incorporation provides for 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 2021 in connection with the closing of the Combangio Acquisition. Dr. Grunberg will not stand for re-election at the 2022 annual meeting of stockholders.
Unless otherwise instructed in the proxy, all proxies will be voted “FOR” the election of each of the Class II nominees identified above to a three-year term ending at the 2025 annual meeting of stockholders, each such nominee to hold office until his successor has been duly elected and qualified. Each of the nominees has indicated a willingness to continue to serve as director, if elected. In the event that any nominee should be unable to serve, discretionary authority is reserved for the named proxy holders to vote for a substitute, or to reduce the number of directors to be elected, or both. We do not expect that any of the nominees will be unable to serve if elected.
A plurality of the combined voting power of the shares of common stock present virtually or represented by proxy at the annual meeting and entitled to vote is required to elect each nominee as a director; provided, that any director nominee standing for election to our board of directors who receives a greater number of “WITHHOLD” votes than “FOR” votes in an uncontested election must offer to tender his resignation to our board of directors promptly following the certification of election results. Our board of directors must then accept or reject such resignation within 90 days following the certification of election results and publicly disclose its decision. For additional information, see “What happens if a director nominee receives more “WITHHOLD” votes than “FOR” votes in an uncontested election?”
OUR BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE ELECTION OF MARK IWICKI AND MARK S. BLUMENKRANZ TO SERVE AS CLASS II DIRECTORS.
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Proposal 2: Ratification 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 |
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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
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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 BOARDSECURITY OWNERSHIP OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE RATIFICATION OF THE APPOINTMENT OF DELOITTE & TOUCHE LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2022.
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STOCK OWNERSHIPCERTAIN BENEFICIAL OWNERS AND REPORTING
Security Ownership of Certain Beneficial Owners and ManagementMANAGEMENT
Unless otherwise provided below, the following table sets forth information regarding beneficial ownership of our common stockCommon Stock as of March 31, 2022February 21, 2023 by:
● | each person, or group of affiliated persons, known to us to be the beneficial owner of 5% or more of the outstanding shares of our |
● | each of our current directors; |
● | our principal executive officer and |
● | all of our executive officers and directors as a group. |
Beneficial ownership is determined in accordance with the rules and regulations of the SEC and includes voting or investment power with respect to our common stock.Common Stock. Percentage of beneficial ownership is based on 72,594,0052,025,495 shares of our common stockCommon Stock outstanding as of February 21, 2023, plus an aggregate of 19,350 shares of common stock that were initially held back as partial security for the satisfaction of indemnification obligations and other payment obligations of the Combangio equityholders and that will be issued in March 31, 2022.2023, or the Holdback Shares, for a total of 2,044,845 shares of our Common Stock utilized in the percentage of beneficial ownership calculations below. In addition, shares of common stockCommon Stock subject to options or other rights currently exercisable, or exercisable within 60 days of March 31, 2022,February 21, 2023, are deemed outstanding and beneficially owned for the purpose of computing the percentage beneficially owned by (i) the individual holding such options, warrants or other rights (but not any other individual) and (ii) the directors and executive officers as a group. Except as otherwise noted, the persons and entities in this table have sole voting and investing power with respect to all of the shares of our common stockCommon Stock beneficially owned by them, subject to community property laws, where applicable. Except as otherwise set forth below, the address of the beneficial owner is c/o Kala Pharmaceuticals, Inc., 1167 Massachusetts Avenue, Arlington, Massachusetts 02476.
| | | | | |
| | Number of | | Percentage |
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| | shares | | of shares |
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| | 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 | % |
Name and Address of Beneficial Owner |
| Shares of |
| Percentage of |
|
5% Stockholders: | | | | ||
Entities affiliated with Baker Bros. Advisors LP(1) | | 218,427 | | 9.99 | % |
Entities affiliated with Longitude Venture Partners(2) | | 108,239 | | 5.29 | % |
Integrated Core Strategies (US) LLC(3) | | 107,200 | | 5.24 | % |
Entities affiliated with Lagunita(4) | | 106,753 | | 5.22 | % |
Directors and Named Executive Officers: | | | | | |
Mark Iwicki(5) | | 58,519 | | 2.79 | % |
Todd Bazemore(6) | | 17,019 | | * | |
Kim Brazzell, Ph.D.(7) | | 17,911 | | * | |
Mark S. Blumenkranz, M.D.(8) | | 107,149 | | 5.24 | % |
Marjan Farid, M.D. | | — | | * | |
Andrew I. Koven(9) | | 1,197 | | * | |
C. Daniel Myers(10) | | 419 | | * | |
Robert Paull(11) | | 727 | | * | |
Gregory D. Perry(12) | | 938 | | * | |
Howard B. Rosen(13) | | 1,964 | | * | |
All current executive officers and directors as a group (13 persons)(14) | | 238,590 | | 11.07 | % |
* | Less than one percent |
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(2) | Based solely on a Schedule 13D/A filed with the SEC on |
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(3) | Based solely on a Schedule 13G filed with the SEC on January 17, 2023. The Schedule 13G was jointly filed by Integrated Core Strategies (US) LLC (“Integrated Core Strategies”), which reported shared voting and dispositive power with regard to 107,200 shares of Common Stock, and Millennium Management LLC (“Millennium Management”), Millennium Group Management LLC (“Millennium Group Management”) and Israel A. Englander (“Mr. Englander”), which each reported shared voting and dispositive power with regard to 133,703 shares of Common Stock, including the 107,200 shares of Common Stock held by Integrated Core Strategies. The shares of Common Stock disclosed as potentially beneficially owned by Millennium Management, Millennium Group Management and Mr. Englander are held by entities subject to voting control and investment discretion by Millennium Management and/or other investment managers that may be controlled by Millennium Group Management (the managing member of Millennium Management) and Mr. Englander (the sole voting trustee of the managing member of Millennium Group Management). The address for each of the reporting persons is 399 Park Avenue, New York, NY 10022. |
(4) | Based, in part, on a Schedule 13D filed with the SEC on November 26, 2021. Consists of (a) |
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Consists of (i) |
(6) | Consists of (i) |
(7) | Consists of (i) |
(8) | Consists of (i) the shares described in note |
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(9) | Consists of shares of |
(10) | Consists of shares of |
(11) | Consists of (i) |
(12) | Consists of shares of |
(13) | Consists of (i) |
(14) | Includes |
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As of the date of this proxy statement, we know of no matter not specifically referred to above as to which any action is expected to be taken at the annual meeting.Special Meeting. The persons named as proxies will vote the proxies, insofar as they are not otherwise instructed, regarding such other matters and the transaction of such other business as may be properly brought before the meeting, as seems to them to be in the best interest of our company and our stockholders.
Stockholder Proposals for our 2023 Annual Meeting of Stockholders
Stockholder Proposals Included in Proxy Statement
InAs previously stated in the Company’s proxy statement filed with the SEC on April 29, 2022, pursuant to Rule 14a-8 under the Exchange Act, in order to be considered for inclusion in our proxy statement and proxy card relating to our 2023 annual meeting of stockholders, stockholder proposals must behave been received by us no later than December 30, 2022, which iswas 120 days prior to the first anniversary of the mailing date of thisthe proxy statement relating to the 2022 annual meeting of stockholders, unless the date of the 2023 annual meeting of stockholders is changed by more than 30 days from the anniversary of our 2022 annual meeting, in which case, the deadline for such proposals will be a reasonable time before we begin to print and send our proxy materials. Upon receipt of any such proposal, we will determine whether or not to include such proposal in the proxy statement and proxy card in accordance with regulations governing the solicitation of proxies.
Stockholder Proposals Not Included in Proxy Statement
In addition, our by-laws establish an advance notice procedure for nominations for election to our board of directors and other matters that stockholders wish to present for action at an annual meeting other than those to be included in our proxy statement. In general, we must receive other proposals of stockholders (including director nominations) intended to be presented at the 2023 annual meeting of stockholders but not included in the proxy statement by March 18, 2023, but not before February 16, 2023, which is not less than 90 days nor more than 120 days prior to the anniversary date of the immediately preceding annual meeting. However, if the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice must be received no earlier than the close of business on the 120th calendar day prior to such annual meeting and no later than the close of business on the later of the 90th day prior to such annual meeting and the 10th day following the day on which notice of the date of such annual meeting was mailed or public announcement of the date of such annual meeting was first made, whichever first. If the stockholder fails to give notice by these dates, then the persons named as proxies in the proxies solicited by the board of directors for the 2023 annual meeting of stockholders may exercise discretionary voting power regarding any such proposal.
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Stockholders are advised to review our by-laws which also specify requirements as to the form and content of a stockholder’s notice.
Any proposals, notices or information about proposed director candidates should be sent to Kala Pharmaceuticals, Inc., Attention: Nominating and Corporate Governance Committee, 1167 Massachusetts Avenue, Arlington, Massachusetts 02476.
Householding of Annual MeetingProxy Materials
Some brokers and other nominee record holders may be “householding” our proxy materials. This means a single notice and, if applicable, the proxy materials, will be delivered to multiple stockholders sharing an address unless contrary instructions have been received. We will promptly deliver a separate copy of the notice and, if applicable, the proxy materials and our 2021 annual report to stockholders, which consists of our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, to you if you write or call us at Kala Pharmaceuticals, Inc., 1167 Massachusetts Avenue, Arlington, Massachusetts 02476, Attention: Chief Financial Officer, telephone: (781) 996-5252. If you would like to receive separate notices and copies of our proxy materials and annual reports in the future, or if you are receiving multiple copies and would like to receive only one copy for your household, you should contact your bank, broker, or other nominee record holder, or you may contact us at the above address and telephone number.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the informational requirements of the Exchange Act and, therefore, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public on the SEC’s website at www.sec.gov. The SEC’s website contains reports, proxy and information statements and other information regarding issuers, such as us, that file electronically with the SEC. You may also read and copy any document we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You may also obtain copies of these documents at prescribed rates by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of its Public Reference Room.
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Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: KEEP THIS PORTION FOR YOUR RECORDS DETACH AND RETURN THIS PORTION ONLY THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. D98731-Z84644 For Against Abstain ! ! ! ! ! ! ! ! ! KALA PHARMACEUTICALS, INC. 1167 MASSACHUSETTS AVE ARLINGTON, MA 02476 SCAN TO VIEW MATERIALS & |
D98732-Z84644 Important Notice Regarding the Availability of Proxy Materials for the |