|
|
|
|
|
|
|
|
|
|
Beneficial Ownership
|
|
Name and Address of Beneficial Owner
(1)
|
|
Number of
Shares (#)
|
|
Percentage of
Total (%)
|
|
More than 5% stockholders:
|
|
|
|
|
|
|
|
ProQuest and its affiliates
(2)
|
|
|
3,997,318
|
|
|
26.1
|
|
Janus Capital Management LLC
(3)
|
|
|
1,484,241
|
|
|
9.7
|
|
Hudson Executive Capital LP
(4)
|
|
|
950,600
|
|
|
6.2
|
|
Victory Capital Management Inc.
(5)
|
|
|
863,316
|
|
|
5.6
|
|
BlackRock, Inc.
(6)
|
|
|
1,137,864
|
|
|
7.4
|
|
Named Executive Officers and Directors:
|
|
|
|
|
|
|
|
Scott Tarriff
(7)
|
|
|
1,794,575
|
|
|
11.4
|
|
David E. Riggs
(8)
|
|
|
101,038
|
|
|
*
|
|
Steven L. Krill, Ph.D.
(9)
|
|
|
46,448
|
|
|
*
|
|
Adrian J. Hepner, M.D., Ph.D.
(10)
|
|
|
32,443
|
|
|
*
|
|
David Pernock
(11)
|
|
|
28,333
|
|
|
*
|
|
Douglas L. Braunstein
(12)
|
|
|
950,600
|
|
|
6.2
|
|
Steven Ratoff
(13)
|
|
|
61,459
|
|
|
*
|
|
Sander Flaum
(14)
|
|
|
59,509
|
|
|
*
|
|
Michael Graves
(15)
|
|
|
43,285
|
|
|
*
|
|
Robert Glenning
|
|
|
|
|
|
*
|
|
Richard A. Edlin
(16)
|
|
|
25,740
|
|
|
*
|
|
All directors and executive officers as a group (11 persons)**
|
|
|
3,143,430
|
|
|
19.5
|
|
-
*
-
Represents
beneficial ownership of less than one percent.
-
**
-
For
purposes of this beneficial ownership table and the row titled "All directors and executive officers as a group," while no longer a member of our Board and not a
named executive officer, David
22
Table of Contents
Pernock
is included as one of the 11 persons in this group given his service as a director during the fiscal year ended December 31, 2016 and his current role as an executive officer of Eagle.
-
(1)
-
This
table is based upon information supplied by officers, directors and stockholders known by us to be beneficial owners of more than five percent of our common
stock as well as Schedules 13G or 13D (and amendments thereto) filed with the SEC, which information may not be accurate as of December 31, 2016.
-
(2)
-
Includes
(i) 3,879,287 shares of common stock held by ProQuest Investments IV, L.P. (which ProQuest Financial LLC manages pursuant to a
management agreement that was assigned from ProQuest Management LLC to ProQuest Financial LLC in connection with an internal reorganization), (ii) 7,677 shares of common stock and
84,180 shares of common stock underlying options that are exercisable within 60 days of Decmber 31, 2016 held by ProQuest Financial LLC (previously transferred from ProQuest
Management LLC in connection with an internal reorganization), and (iii) 26,174 shares of common stock held in an IRA for the benefit of Jay Moorin. Jay Moorin and Alain Schreiber, M.D.,
two of our former directors who resigned from the Board on June 29, 2016, are managing members of ProQuest Financial LLC and ProQuest Associates IV, LLC, the General Partner of
ProQuest Investments IV, L.P. and may be deemed to have shared voting, investment and dispositive power with respect to these shares (except in the case of Dr. Schreiber with respect to
the 26,174 shares of common stock held in an IRA for the benefit of Mr. Moorin). The principal address of each of the ProQuest entities is 2430 Vanderbilt Beach Road #108-190, Naples, Florida
34109.
-
(3)
-
Janus
Capital Management LLC ("Janus Capital") has a direct 97.11% ownership stake in INTECH Investment Management ("INTECH") and a direct 100% ownership
stake in Perkins Investment Management LLC ("Perkins"). Due to the above ownership structure, holdings for Janus Capital, Perkins and INTECH are aggregated for purposes of Janus Capital's
Schedule 13G/A filing. Janus Capital, Perkins and INTECH are registered investment advisers, each furnishing investment advice to various investment companies registered under Section 8
of the Investment Company Act of 1940 and to individual and institutional clients (collectively referred to herein as "Managed Portfolios"). As a result of its role as investment adviser or
sub-adviser to the Managed Portfolios, Janus Capital may be deemed to be the beneficial owner of 1,484,241 shares or 9.7% of the shares outstanding of our common stock held by such Managed Portfolios.
However, Janus Capital does not have the right to receive any dividends from, or the proceeds from the sale of, the securities held in the Managed Portfolios and disclaims any ownership associated
with such rights. The principal address of Janus Capital is 151 Detroit Street, Denver, CO 80206.
-
(4)
-
The
principal business of Hudson Executive Capital LP, a Delaware limited partnership ("Hudson Executive"), is to serve as investment adviser to certain
affiliated investment funds (the "HEC Funds"). Douglas L. Braunstein, one of our directors, is a managing partner of Hudson Executive and a managing member of Hudson Executive's general partner, HEC
Management GP, LLC, a Delaware limited liability company, and along with Hudson Executive (as the investment adviser to the HEC Funds), Mr. Braunstein may be deemed to share power
to vote or direct the vote of (and share power to dispose or direct the disposition of) the shares of common stock held by Hudson Executive. The principal address of Hudson Executive is c/o Hudson
Executive Capital LP, 1185 Avenue of the Americas, 32nd Floor, New York, NY 10036.
-
(5)
-
Victory
Capital Management Inc. ("Victory Capital") is the beneficial owner of our common stock held on behalf of numerous clients who have the right to
receive and the power to direct the receipt of dividends from, or the proceeds of the sale of, such common stock, and Victory Capital disclaims any ownership associated with such rights. No client has
the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, more than 5% of the shares outstanding of common stock of the Company. The principal
address of Victory Capital is 4900 Tiedman Rd. 4
th
Floor, Brooklyn, OH 44144.
23
Table of Contents
-
(6)
-
BlackRock Inc.
("BlackRock") is a parent holding company or control person of various subsidiaries that acquired shares of our common stock reported in this
table, of which only BlackRock Fund Advisors beneficially owns 5% or greater of the outstanding shares of our common stock beneficially owned by BlackRock. Various persons have the right to receive or
the power to direct the receipt of dividends from, or the proceeds from the sale of our common stock. No one person's interest in our common stock is more than five percent of the total outstanding
common shares. The principal address of BlackRock is 55 East 52
nd
Street, New York, NY 10055.
-
(7)
-
Includes
(i) 176,361 shares of common stock held by Janney Montgomery Scott LLC CUST FBO Scott Tarriff IRA for the benefit of Mr. Tarriff (the
"IRA Trust"), of which Mr. Tarriff is a trustee and, as such, may be deemed to share voting and dispositive power with respect to all shares held by the IRA Trust; (ii) 424,629 shares of
common stock underlying options that are exercisable within 60 days of December 31, 2016; and (iii) 1,103,680 shares of common stock held by the Scott L Tarriff Generation
Skipping Exempt Family Trust (the "Family Trust") for the benefit of Mr. Tariff's wife and three children, of which Mr. Tarriff's wife and Mr. Graves are co-trustees, and as such,
Mr. Tariff disclaims beneficial ownership with respect to such shares in the Family Trust, except to the extent of his pecuniary interest therein.
-
(8)
-
Includes
101,038 shares of common stock underlying options that are exercisable within 60 days of December 31, 2016.
-
(9)
-
Includes
46,448 shares of common stock underlying options that are exercisable within 60 days of December 31, 2016.
-
(10)
-
Includes
32,443 shares of common stock underlying options that are exercisable within 60 days of December 31, 2016.
-
(11)
-
Includes
28,333 shares of common stock underlying options that are exercisable within 60 days of December 31, 2016.
-
(12)
-
Includes
the shares of common stock held by Hudson Executive Capital LP, a Delaware limited partnership ("Hudson Executive"), referred to in footnote
(4) above. Those shares are held for the account of certain private investment funds (the "HEC Funds") for which Hudson Executive acts as investment adviser. Mr. Braunstein controls the
general partner of Hudson Executive and indirectly controls the general partner of the HEC Funds.
-
(13)
-
Includes
48,135 shares of common stock underlying options that are exercisable within 60 days of December 31, 2016.
-
(14)
-
Includes
48,135 shares of common stock underlying options that are exercisable within 60 days of December 31, 2016.
-
(15)
-
Includes
42,285 shares of common stock underlying options that are exercisable within 60 days of December 31, 2016.
-
(16)
-
Includes
2,340 shares of common stock underlying options that are exercisable within 60 days of December 31, 2016.
24
Table of Contents
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our executive officers, directors and persons who beneficially own more than 10% of a registered class of
our equity securities, to file initial reports of ownership and reports of changes in ownership with the SEC. Officers, directors and greater than ten percent shareholders are required by SEC
regulation to furnish the Company with copies of all Section 16(a) forms they file.
To
the Company's knowledge, based solely on a review of copies of such forms submitted to us and written representations that no other reports were required, we believe that all persons subject to the
requirements of Section 16(a) filed such reports on a timely basis during the fiscal year ended December 31, 2016, except that (i) two Form 4 reports, covering an aggregate
of twenty transactions, were filed late by Mr. Krill (all of which were filed within sixteen days of the due date); (ii) one Form 4 report, covering one transaction, was filed
late by Mr. Ratoff; and (iii) one Form 4 report, covering one transaction, was filed late by each of ProQuest Financial LLC, ProQuest Investments IV, L.P., ProQuest
Associates IV LLC, Mr. Moorin and Dr. Schreiber.
25
Table of Contents
EXECUTIVE COMPENSATION
COMPENSATION DISCUSSION AND ANALYSIS
We became a public company in February 2014, and we filed our 2015 proxy statement under the scaled reporting rules applicable to emerging growth companies.
As of the end of our 2015 fiscal year, we ceased to be an emerging growth company. Therefore, for the first time in last year's proxy statement, we included a Compensation Discussion and Analysis,
additional detail regarding our executive compensation program, our first "say on pay" advisory vote on the compensation of our named executive officers and our first "say on frequency" advisory vote
on how frequently we should hold say on pay votes in the future. Consistent with the preference of our stockholders, we committed to include a say on pay advisory vote on the compensation of our named
executive officers annually until our next required say on frequency advisory vote.
This
Compensation Discussion and Analysis provides an overview of the material components of our executive compensation program for the fiscal year ended December 31, 2016, for our "named
executive officers" who are listed below. This discussion and analysis is intended to assist you to understand the information provided in the compensation tables below and to provide additional
context regarding our overall compensation program. In addition, we explain how and why our Board and compensation committee determined our compensation policies and specific compensation decisions
for our named executive officers during and for fiscal year 2016.
Named Executive Officers
Our named executive officers for the fiscal year ended December 31, 2016, are as follows:
-
-
Scott Tarriff, our Chief Executive Officer;
-
-
David E. Riggs, our Chief Financial Officer;
-
-
Adrian J. Hepner, M.D., Ph.D., our Executive Vice President and Chief Medical Officer; and
-
-
Steven L. Krill, Ph.D., our Executive Vice President and Chief Scientific Officer.
EXECUTIVE SUMMARY
Business Highlights
We founded our Company on the belief that many currently available critical care and oncology injectable products have suboptimal characteristics that do not
meet the needs of patients, physicians, nurses or pharmacists. These characteristics can impact safety, shelf life, convenience, waste, cost, and ease of use by practitioners and pharmacy staff.
Fiscal year 2016 and the first quarter of 2017 demonstrate the validity of this approach as we have begun to see the commercial success of some of our marketed products and have received positive
input from the U.S. Food and Drug Administration (the "FDA") on some of our pipeline products. In 2016 we also took steps to expand the scope of our model into biologics with the acquisition of Arsia
Therapeutics, Inc. ("Arsia") in Cambridge MA, the name of which we subsequently changed to Eagle Biologics, Inc. ("Eagle Biologics").
We
believe that 2016 was a transformative year for Eagle as we grew our internal commercial operations, set historical highs for sales and revenues and filed one New Drug Application ("NDA") while
continuing to develop our pipeline of potential breakthrough therapies. Some of Eagle's highlights from 2016 and the first quarter of 2017 include:
-
-
Sales of rapidly infused bendamustine RTD ("Bendeka"), the bendamustine hydrochloride injection product we approved in December 2015, achieved
greater than 90% market penetration as of March 2017 and reached over $500 million in sales since its launch in January 2016 by our marketing partner Teva Pharmaceuticals Industries Ltd.
("Teva").
26
Table of Contents
-
-
On January 11, 2016, we entered into an agreement with Albany Molecular Research, Inc. to jointly develop and manufacture several
select and complex parenteral drug products for registration and subsequent commercialization in the United States.
-
-
On March 29, 2016, we entered into an asset purchase agreement with Exela Pharmaceuticals pursuant to which we sold certain intellectual
property related to diclofenac-misoprostol, a legacy non-core product in the United States.
-
-
On July 11, 2016 the FDA determined that no additional human safety and efficacy data would be required for the submission of our
Ryanodex NDA indicated for Exertional Heat Stroke (EHS), streamlining a regulatory pathway for submission. In March of 2017, the FDA granted our NDA expedited review.
-
-
On August 3, 2016, we amended our agreement with Lyotropic Therapeutics, Inc. to reduce future royalties related to
Ryanodex® (dantrolene sodium) ("Ryanodex").
-
-
During the quarter-ended September 30, 2016, we entered into an amendment to that certain exclusive license agreement originally entered
into with Cephalon, Inc., a wholly-owned subsidiary of Teva, since assigned to another subsidiary of Teva, Teva Pharmaceuticals International GmbH (the "Cephalon License") and the
related supply agreement for Bendeka. The amendment expands the geographical scope of the rights granted under the original agreement to include territories outside of the U.S. and Canada.
-
-
On November 2, 2016, we announced that the Centers for Medicare and Medicaid Services (CMS) established a unique, product-specific
billing code, J-code (J9034), for Bendeka. The J-code became effective on January 1, 2017. The new J-code provides reimbursement coding clarity to outpatient facilities and physicians that
administer Bendeka, facilitating access for patients and Medicare, Medicaid and commercial insurance reimbursement. We received a $40 million milestone payment upon receipt of the J-code, which
we recorded as revenue in the fourth quarter of 2016, and our royalty rate increased from 20% to 25%.
-
-
On November 16, 2016, we entered into an agreement to acquire Arsia, an early-stage biotechnology firm with proprietary
viscosity-reducing technology and formulation know-how.
-
-
In 2016, our total revenue grew 186%, from $66.2 million in 2015 to $189.5 million in 2016, and our net income grew from
$2.6 million in 2015 to $81.5 million in 2016.
-
-
On January 26, 2017, we entered into a Credit Agreement (the "Credit Agreement"), with JPMorgan Chase Bank, N.A., as administrative
agent and the lenders party thereto. The Credit Agreement provides for a three-year $50 million revolving credit facility (the "Credit Facility"), none of which was drawn at closing, and
includes a $5 million letter of credit subfacility. We expect to use future loans under the Credit Facility, if any, for working capital needs and for general corporate purposes.
Compensation Highlights
Our compensation committee has closely considered the significant corporate achievements described above and our transformation as a company in making
compensation decisions. Our compensation committee aims to provide our named executive officers with compensation that is dependent upon their individual performance, the performance of our business
and our stock, in line with our compensation philosophy. As we have grown and our business has transformed significantly in a short period of time since we first became a public company in 2014, our
compensation programs are also continuing to evolve and transform for those appropriate to our size and stage of business. As such, our compensation has varied and our practices may differ from the
typical practices of public companies who have been operating for longer periods of time in a less volatile and dynamic environment. We carefully evaluate our
27
Table of Contents
compensation
arrangements and develop programs that we feel are the most appropriate to drive results for our company and our stockholders, and we make changes to move our company forward and ensure
that our pay program aligns our executives' compensation with our stockholders' interests and our company performance over the long-term.
Key
features of our executive compensation program include the following:
-
✓
-
We tie pay to performance and emphasize "at risk"
compensation.
We structure a significant portion of our named executive officers' total direct compensation (consisting of base salary, performance bonus and
equity awards) to be variable, at risk and tied directly to our performance over the short and long-term. The following chart shows the portion of 2016 compensation of our Chief Executive Officer and
other named executive officers that is "at-risk", consisting of annual performance bonus earned and equity incentives awarded, as reported in our "Summary Compensation Table":
-
✓
-
Our executive bonuses are tied to meeting key corporate
objectives.
Our annual performance-based bonus opportunities for our named executive officers are tied to our achievement of annual corporate objectives established each year.
We also take into account individual named executive officer contributions towards meeting our corporate goals in determining executive bonuses. No bonuses are guaranteed, and in 2016, we added an
overall cap to our annual performance-based bonus program. We exceeded our specified corporate objectives for the year and each of our named executive officers received performance bonuses in early
2017.
-
✓
-
We emphasize long-term incentive compensation in the
form of stock options.
Stock options are an integral part of our executive compensation program, and comprise the primary "at risk" portion of our named executive officer
compensation package. We consider stock options performance-based because they provide value only if the market price of our common stock increases, and if the executive officer continues in our
employment over the vesting period. Because this form of compensation only establishes value upon an improvement in corporate performance, these awards strongly align our executive officers' interests
with those of our stockholders by providing a continuing financial incentive to maximize long-term value and fostering management continuity by encouraging our executive officers to remain in our
long-term employ.
28
Table of Contents
-
✓
-
We maintain stock ownership and holding
guidelines
. We recently adopted ownership and holding guidelines, which ensure our officers maintain a meaningful equity stake in our Company. Under the guidelines, our Chief
Executive Officer must own equity interests with a value equal to six times his annual base salary and each of our other named executive officers must own equity interests with a value equal to two
times his respective base salary, as well as retain a certain percentage of shares acquired from equity awards under certain circumstances.
-
✓
-
We prohibit hedging and pledging of Company
stock.
A previous 2015 stock pledging instance has been completely unwound and no longer exists.
-
✓
-
We generally do not provide any executive fringe
benefits or perquisites
to our executive officers, such as car allowances, personal security, or financial planning advice.
-
✓
-
Our compensation committee has retained an independent
compensation consultant
to provide assistance in the discharge of its responsibilities. Our compensation committee has engaged Compensia, who advises the compensation committee
on market practices so that our compensation committee can regularly assess our executive compensation program against our peer companies, the general marketplace and other industry data points.
Realizable Pay and Alignment with Company Performance
Because we pay a significant portion of compensation in the form of "at-risk" long-term equity awards, viewing the compensation that is actually realizable by
our Chief Executive Officer is important to an understanding of the alignment between his pay and our Company performance and stockholder interests. Realizable pay recognizes the impact of actual
financial and stock performance in the returns available (or "realizable") by the executive. In contrast, reported pay (which reflects the grant date fair value for stock options used in Summary
Compensation Table
disclosure) estimates the expected value of compensation on the day it was granted, in accordance with financial accounting principles.
The
chart below shows our indexed total stockholder return ("TSR") for 2015 and 2016, the past two fully-completed years in which our Company was public, with both the Chief Executive Officer's total
reported compensation as well as his "realizable" pay, which reflects base salary and annual performance-bonus earned and values stock options granted during the year using their intrinsic value as of
the end of the applicable year, which is value the award could deliver as of such time (whether or not vested and exercisable). Indexed TSR is the return associated with a hypothetical $100 investment
in our stock at the
29
Table of Contents
beginning
of the relevant period. The chart below also shows, for comparative purposes, the 2015 and 2016 average indexed TSR of our current peer group developed in late 2016.
The
chart above demonstrates that while reported pay is a measure required to be disclosed in our "Summary Compensation Table" by an SEC rule that provides consistency amongst companies, it is not the
measure that best reflects the compensation paid to our Chief Executive Officer, nor the amount that can best be compared to our stock price in determining whether our Chief Executive Officer's
compensation is aligned with our stockholders' interests. The chart above demonstrates general alignment between our Chief Executive Officer's realizable compensation and our stock price performance.
For example, during 2016, our stock price decreased, as did our Chief Executive Officer's 2016 realizable pay. Due to our drop in stock price after the grant of stock options in January 2016, the
Chief Executive Officer's 2016 stock options were underwater, and therefore had zero realizable value, despite the fact that they are listed in our Summary Compensation Table as having a value of
approximately $5.3 million. By contrast, reported pay for 2016 increased from reported pay for 2015. This is in large part because equity award compensation decisions are made at the beginning
of the year, based on information available at that time and therefore reported pay should be viewed in light of the historical Company performance. Our 2016 pay decisions were made in January 2016,
after our strong stock performance during 2015 (during which TSR increased 472%).
The
chart above also demonstrates that we have out-performed our peer companies in TSR over the past two fully-completed years in which we have been public. While our TSR for 2016 was down, it fell at
approximately the 70
th
percentile of the 2016 TSRs of the companies within our peer group. Over the prior
30
Table of Contents
two-year
period (2015-2016) and over the almost three-year period since our initial public offering in February 2014, our TSR outperformed each one of our peer Company's two- and three-year TSRs. The
compensation committee has taken this performance into consideration in making executive compensation decisions, including the stock option grants, over such period.
STOCKHOLDER ADVISORY VOTE ON EXECUTIVE COMPENSATION
At our 2016 Annual Meeting of Stockholders, we held our first "say on pay" advisory vote, and our stockholders approved, on an advisory basis, the
compensation of our named executive officers, as disclosed in our 2016 proxy statement. The proposal was supported by 99% of the total votes cast. Our compensation committee reviewed the final vote
results for the proposal and, given the significant level of support, concluded that our compensation program provided a competitive performance package that incentivizes our named executive officers
and encourages their retention over the long-term. Accordingly, the compensation committee determined not to make any significant changes to our executive compensation policies or decisions as a
result of the vote; however, our compensation committee determined to monitor and continually evaluate our compensation program going forward in light of our stockholders views and our transforming
business needs. Our compensation committee expects to continue to consider the outcome of our say on pay votes and our stockholders' views when making future compensation decisions for our named
executive officers.
OVERVIEW OF OUR EXECUTIVE COMPENSATION PROGRAM
Objectives, Philosophy and Elements of Compensation
The overall objectives of our executive compensation program and policies are to:
-
-
attract, retain and motivate superior executive talent;
-
-
provide incentives that reward the achievement of performance goals that directly correlate to the enhancement of stockholder value, as well as
to facilitate executive retention; and
-
-
align our executives' interests with those of our stockholders through long-term incentives.
Our
executive compensation program generally consists of, and is intended to strike a balance among, the following three principal components: base salary, annual performance-based bonuses and
long-term incentive compensation. We also provide our executive officers with severance and change-in-control payments and benefits, as well as other benefits generally available to all our employees,
including retirement benefits under the company's 401(k) plan and participation in employee benefit plans. The following table summarizes the three principal components of compensation, their
objectives and key features.
|
|
|
|
|
Element of
Compensation
|
|
Objectives
|
|
Key Features
|
Base Salary
(fixed cash)
|
|
Provides financial stability and security through a fixed amount of cash for performing job responsibilities.
|
|
Generally reviewed annually at the beginning of the year and determined based on a number of factors (including individual performance, internal equity, retention, expected cost of living increases and the overall performance of our company) and by
reference to market data provided by our independent compensation consultant.
|
31
Table of Contents
|
|
|
|
|
Element of
Compensation
|
|
Objectives
|
|
Key Features
|
Performance Bonus
(at-risk cash)
|
|
Motivates and rewards for attaining rigorous annual corporate performance goals that relate to our key business objectives.
|
|
Target bonus amounts, calculated as a percentage of base salary, are generally reviewed annually and determined based upon positions that have similar impact on the organization and competitive bonus opportunities in our
market. Bonus opportunities are dependent upon achievement of specific corporate performance objectives, generally determined by the compensation committee and the Board.
|
|
|
|
|
Actual bonus amounts earned are determined after the end of the year, based on achievement of the designated corporate performance
objectives and individual executives' performance and contributions to corporate achievements.
|
Long-Term Incentive
(at-risk equity)
|
|
Motivates and rewards for long-term company performance; aligns executives' interests with stockholder interests and changes in stockholder value.
Attracts highly
qualified executives and encourages their continued employment over the long-term.
|
|
Annual equity opportunities are generally reviewed and determined at the beginning of each year or as appropriate during the year for new hires, promotions, or reward for significant achievement.
Individual awards are determined based on a number of factors, including current corporate and individual performance, outstanding equity holdings and their retention value and total ownership,
historical value of our stock, internal equity among executives and market data provided by our independent compensation consultant.
Equity awards are provided in the form
of stock options that typically vest over a four-year period. Stock options are a key aspect of our pay-for-performance philosophy, by providing a return only if the market price of our stock appreciates over the stock option term.
|
In
evaluating our executive compensation programs and policies, as well as the short-term and long-term value of our executive compensation plans and arrangements, our compensation committee (on
behalf of our Board) focuses on providing a competitive compensation package that provides significant short-term and long-term incentives for the achievement of measurable corporate objectives and
individual contribution towards our corporate performance. We believe that this approach provides an appropriate blend of short-term and long-term incentives to maximize stockholder value.
We
do not currently have any formal policies for allocating compensation among base salary, performance-based bonus awards and equity awards, short-term and long-term compensation or among cash and
non-cash compensation. Instead, our compensation committee uses its judgment to establish a target total direct compensation opportunity for each named executive officer that is a mix of current,
short-term and long-term incentive compensation, and cash and non-cash compensation, that it believes appropriate to achieve the goals of our executive compensation program and our corporate
objectives. However, a significant portion of our named executive officers' target total direct compensation opportunity is comprised of "at-risk" compensation in the form of performance-based bonus
opportunities and long-term equity awards tied to stockholder returns, in order to align the executive officers' incentives with the interests of our stockholders and our corporate goals.
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Table of Contents
HOW WE DETERMINE EXECUTIVE COMPENSATION
Role of the Compensation Committee and Executive Officers in Setting Executive Compensation
As further described above, our compensation committee, comprised entirely of independent directors, is responsible for administering our executive
compensation program and operates under a written charter. Among other things, the role of the compensation committee is to oversee our executive compensation programs, policies and plans, and to
review and determine, as appropriate, the compensation to be paid to our executive officers and directors. As necessary, and if deemed appropriate by our compensation committee, the compensation
committee may also make recommendations to the full Board for approval of certain compensation decisions relating to our named executive officers.
In
making its executive compensation determinations, our compensation committee and, if applicable, the full Board, considers recommendations from our Chief Executive Officer for executive officers
other than himself. In making his recommendations, our Chief Executive Officer has access to various third party compensation surveys and compensation data provided by the independent compensation
consultant to the compensation committee, as described below. While our Chief Executive Officer discusses his recommendations for the other executive officers with the compensation committee, he does
not participate in the deliberations concerning, or the determination of, his own compensation. In addition to our Chief Executive Officer, our Chief Financial Officer, as well as members of our
management and our legal department also attend compensation committee meetings from time to time and may take part in discussions of executive compensation. From time to time, various other members
of management and other employees as well as outside advisors or consultants may be invited by the compensation committee to make presentations, provide financial or other background information or
advice or otherwise participate in compensation committee meetings. No executive officer is present during voting or deliberations on his or her own compensation.
Role of our Compensation Consultant
Our compensation committee has the sole authority to retain compensation consultants to assist in its evaluation of executive compensation, including the
authority to approve the consultant's reasonable fees and other retention terms. As in 2015, for purposes of evaluating 2016 compensation for each of our executive officers and making 2016
compensation decisions, our compensation committee retained Compensia, a national compensation consultant, to assist it in reviewing our executive compensation program and to ensure that our
compensation program remains competitive in attracting and retaining talented executives.
During
2016, Compensia assisted the compensation committee in selecting a group of peer companies to use as a reference in understanding the competitive market, evaluating current pay practices and
philosophies and considering compensation and corporate governance best practices. As described further below, Compensia also prepared an analysis of our compensation practices with respect to base
salaries, annual bonuses and long-term incentive compensation compared to competitive market practices. Compensia reports directly to the compensation committee, which maintains the authority to
direct their work and engagement, and advises the compensation committee from time to time. Compensia interacts with management to gain access to company information that is required to perform its
services and to understand the culture and policies of our organization.
The
compensation committee has considered whether the work of Compensia has raised any conflict of interest, taking into account the following factors: (i) the amount of fees paid to Compensia,
as a percentage of the firm's total revenue; (ii) the provision of other services to us by Compensia; (iii) Compensia's policies and procedures that are designed to prevent conflicts of
interest; (iv) any business or personal relationship of the individual compensation advisors with any member of the compensation committee; (v) any business or personal relationship of
Compensia or the individual compensation advisors employed by the firm with any of our executive officers and (vi) any shares of our
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Table of Contents
common
stock owned by the individual compensation advisors employed by Compensia. Based on the above factors, the compensation committee has concluded that the work of Compensia and the individual
compensation advisors employed by Compensia has not created any conflict of interest.
Use of Competitive Market Data
We strive to attract and retain the most highly qualified executive officers in an extremely competitive market. Accordingly, our compensation committee
believes that it is important when making its compensation decisions to be informed as to the competitive market for executive talent, including the current practices of comparable public companies
with which we compete for such talent. Consequently, our compensation committee reviews market data for each executive officer's position, compiled by Compensia as described below.
In
late 2015, with the assistance of Compensia, the compensation committee approved a peer group of companies for use as a reference when determining the 2016 compensation of our executive officers.
This peer group was selected from among publicly-traded pharmaceutical and biotechnology companies based in the U.S., based on the comparability of our market capitalization, and our business models.
We selected a grouping of specialty pharmaceutical and biotechnology companies for whom the 25
th
and 75
th
percentile of market capitalization had a range
between $733M and $2.31B; at the time of such compilation, our market cap was approximately $1.56B and fell at the 55
th
percentile of the peers developed. This peer group, which
is referred to herein as our 2016 peer group, consisted of the following 17 publicly-traded companies:
|
|
|
|
|
Acorda Therapeutics
|
|
Impax Laboratories
|
|
Pacira Pharmaceuticals
|
Akorn
|
|
Insys Therapeutics
|
|
PDL BioPharma
|
AMAG Pharmaceuticals
|
|
Lannett Co.
|
|
Sagent Pharmaceuticals
|
Depomed
|
|
The Medicines Co.
|
|
Sucampo Pharmaceuticals
|
Emergent BioSolutions
|
|
Medivation
|
|
Supernus Pharmaceuticals
|
Enanta Pharmaceuticals
|
|
Nektar Therapeutics
|
|
|
The
2016 peer group retained none of the companies included in our previous 2014-2015 peer group, reflecting the growth and development of our business since our initial public offering. Our
compensation committee believes that the companies selected for the 2016 peer group were comparable to us, and represented our labor market for talent for key leadership positions at the time the
compensation decisions for 2016 were made.
In
late 2016, our compensation committee considered the peer group again and made adjustments to the group, to account for M&A activity within the group. The peer group used for making compensation
decisions in early 2017 consisted of the following 18 publicly-traded companies:
|
|
|
|
|
Acorda Therapeutics
|
|
Emergent BioSolutions
|
|
Nektar Therapeutics
|
Akorn
|
|
Horizon Pharma
|
|
Pacira Pharmaceuticals
|
Alkermes
|
|
Impax Laboratories
|
|
PDL BioPharma
|
AMAG Pharmaceuticals
|
|
Insys Therapeutics
|
|
Seattle Genetics
|
Amphastar Pharmaceuticals
|
|
Lannett Co.
|
|
Sucampo Pharmaceuticals
|
Depomed
|
|
The Medicines Co.
|
|
Supernus Pharmaceuticals
|
Our
compensation committee does not "benchmark" the compensation of any of our named executive officers to a specific percentile of the compensation data derived from our 2016 peer group. Rather, the
compensation committee reviews compensation data from the 2016 peer group companies, referred to as the market data, as reference points in making executive compensation decisions. The compensation
committee's general aim is for compensation to remain competitive with the market, falling above or below the median of the market data as appropriate based on corporate and individual executive
performance,
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and
other factors deemed to be appropriate by our compensation committee. Due to our limited history as a public company and our evolving and growing business, we have not developed a specific market
positioning that we consistently aim for in setting compensation levels; instead our compensation committee determines each element of compensation, and total target cash and direct compensation, for
each named executive officer based on various facts and circumstances appropriate for our Company in any given year. Competitive market positioning is only one of several factors, as described below
under "Factors Used in Determining Executive Compensation", that our compensation committee considers in making compensation decisions, and therefore individual named executive officer compensation
may fall at varying levels as compared to the market data.
Factors Used in Determining Executive Compensation
Our compensation committee sets the compensation of our executive officers at levels they determine to be competitive and appropriate for each named executive
officer, using their professional experience and judgment. Pay decisions are not made by use of a formulaic approach or benchmark; the compensation committee believes that executive pay decisions
require consideration of a multitude of relevant factors that may vary from year to year. In making executive compensation decisions, the compensation committee generally takes into consideration the
factors listed below.
-
➢
-
Corporate performance and business needs
-
➢
-
Each named executive officer's
individual performance, experience, job
function, change in position or responsibilities, and expected future contributions to our company
-
➢
-
Internal pay equity among named executive officers and
positions
-
➢
-
The need to attract new talent to our executive team and retain existing talent
in a highly competitive industry
-
➢
-
A range of market data reference points (generally the 25
th
,
50
th
, and 75
th
percentiles of the market data), as described above under "Use of Competitive Market Compensation Data"
-
➢
-
The
total compensation cost and stockholder dilution from executive
compensation actions
-
➢
-
Trends and compensation paid to similarly situated officers within our market
-
➢
-
Compensia's recommendations
-
➢
-
A review of a named executive officer's total targeted and historical
compensation and equity ownership
-
➢
-
Our Chief Executive Officer's recommendations (with respect to executive
officers other than himself), based on his direct knowledge of the performance by each named executive officer and market data
2016 EXECUTIVE COMPENSATION PROGRAM
Annual Base Salary
In reviewing and adjusting base salaries for 2016, the compensation committee reviewed our executive officers' 2015 base salary levels against the market data
and analyzed each executive officer's individual contribution to the achievement of our corporate goals. Each of the named executive officer's 2015 base salaries fell below (in some cases, well below)
the 50
th
percentile of the market data. Based on the below market levels for such base salaries, each of our named executive officer's 2015 contributions to our performance, and
the value of their roles and responsibilities, the base salaries for each of the named executive officers were increased for 2016.
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Table of Contents
The
named executive officers' 2016 base salaries and increases from each of their base salaries in effect as of the end of 2015, were as follows:
|
|
|
|
|
|
|
|
Named Executive Officer
|
|
2016 Base Salary
(1)
|
|
Increase from
2015 Base Salary
|
|
Scott Tarriff
|
|
$
|
725,000
|
|
|
45
|
%
|
David E. Riggs
|
|
$
|
435,000
|
|
|
40
|
%
|
Adrian J. Hepner, M.D., Ph.D.
|
|
$
|
400,000
|
|
|
19
|
%
|
Steven L. Krill, Ph.D.
|
|
$
|
400,000
|
|
|
23
|
%
|
-
(1)
All
base salaries were effective as of January 1, 2016.
Mr. Tarriff's
base salary was increased 45%, as it was substantially below market based on the market data regarding Chief Executive Officer compensation levels, and particularly given
Mr. Tarriff's experience and critical role in our Company's success in achieving its future plans, as well as our 2015 performance. The base salaries of Mr. Riggs, Dr. Hepner and
Dr. Krill were each increased in varying amounts, based on the compensation committee's evaluation of the market data for each of their positions, their individual 2015 performance and
responsibilities within our Company and internal equity considerations within our management team. Each of the resulting named executive officer 2016 base salaries fell around (some slightly above and
some slightly below) the 50
th
percentile of the market data.
Annual Performance-Based Bonuses
Our performance-based annual bonus program for 2016 was developed by our compensation committee and approved by the independent members of our Board. Under
the program, each named executive officer was eligible to earn a performance bonus based on the achievement of corporate objectives established by our Board for the year, and each officer's target
bonus opportunity, expressed as a percentage of his base salary, or target bonus percentage. In addition, the compensation committee recommended, and the independent members of our Board approved, a
maximum cap of 200% of each executive officer's target bonus amount under the performance-based bonus program so that even if we achieved our designated goals at a rate above 200%, an executive
officer would be limited to payouts based on such goals at 200% of his or her target bonus percentage. The independent members of the Board, upon recommendation from the compensation committee, could,
however, award an executive officer a discretionary bonus outside of the performance-based bonus program in excess of this cap, based on performance achievements not contemplated as part of the
corporate goals within the performance-based bonus program or based on other special circumstances if deemed to be appropriate by the Board and compensation committee.
Our
Chief Executive Officer's performance bonus payment awarded was based on a larger target bonus percentage than our other officers because he has a greater impact on, and responsibility for, our
corporate performance. The other named executive officers' performance bonus payments awarded were based on the same target performance bonus, to promote internal equity amongst the executive team. No
specific individual goals were established for any of our named executive officers for 2016, and accordingly each of our named executive officers' performance bonuses were intended to be tied to our
corporate objective achievements. Because each executive officer is responsible for contributing to the corporate objectives, individually and as part of the leadership team, each officer's individual
contribution towards our achievement of the corporate goals was considered by the compensation committee in approving individual bonus awards.
The
2016 corporate goals on which the performance-based bonuses were based were cross-functional in nature designed to require collaboration among all named executive officers and their respective
areas of responsibility in order to achieve success. Their attainment of the goals was intended to give the
Company the best positioning for future growth while delivering short term benefits thus aligning the interests of
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Table of Contents
management
with those of our stockholders. In January 2017, our compensation committee reviewed and approved, and the independent members of the Board approved, the extent to which we achieved each of
our corporate objectives. Given the results, the compensation committee and independent members of the Board determined that we met our corporate goals and surpassed expectations in the performance of
such goals. Each of the 2016 corporate goals evaluated is listed below followed by a description of our achievement in relation to such goal:
-
1.
-
Fully support the commercialization of Bendeka and maximize the value of the product for the
Company
-
✓
-
Bendeka was successfully launched by our partner, Teva, in January 2016 and the
bendamustine market has transitioned greater than 90% of the market to our product.
-
✓
-
Bendeka was granted a unique J-Code in November 2016, thereby increasing
our
royalty rate from 20% of net sales to 25% of net sales while also earning us a one-time milestone payment of $40 million.
-
2.
-
Build the infrastructure for our own sales force and assume responsibility for marketing
Ryanodex
-
✓
-
We laid the groundwork for our sales and marketing operations by hiring VPs of
Marketing and Sales and appointing a Chief Commercial Officer.
-
✓
-
We began building our internal direct sales force by attracting and recruiting
national account managers and key account managers initially selling Ryanodex. By the end of 2016, we had a field force of 12 sales reps.
-
✓
-
Sales of Ryanodex for
malignant hypothermia exceeded sales revenues from 2015
by 92%.
-
3.
-
Invest in our product development and position our Company to reap the rewards of our product
portfolio
-
✓
-
We successfully negotiated a reduction of our royalty obligations on Ryanodex
from 15% of net sales to 3% of net sales to position ourselves to take advantage of that product's growth potential.
-
✓
-
We successfully filed an NDA in Q1 2017
for Ryanodex for exertional heat
stroke, which received fast track review status from the FDA.
-
✓
-
We initiated studies with the National Institutes of Health and the National
Institute on Drug Abuse to support expanding the Ryanodex franchise into additional new indications.
-
✓
-
We filed an NDA for Pemetrexed with the FDA in December
2016, which the FDA
accepted for filing in Q1 2017.
-
✓
-
We purchased Arsia (now Eagle Biologics), which enables us to partner with
biologics companies in the development of bio betters.
-
✓
-
In Q4 2016 we disclosed a new product development project for a 505(b)(2)
version of Fulvestrant.
-
4.
-
Maintain stockholder
value
-
✓
-
Our 2016 TSR was in approximately the 70
th
percentile when
compared to the 2016 TSRs of our current peer companies developed in late 2016.
In
evaluating the individual performance of our named executive officers in January 2017, the compensation committee considered each person's contribution to, collaboration in, and management of the
effort that went into our success. The compensation committee approved and recommended to the Board, and the independent members of the Board approved, a performance bonus payment to each of our named
executive officers under our 2016 performance-based bonus program in amounts that varied depending on such individual considerations. Each of the named executive officer's actual bonus awarded
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Table of Contents
under
our 2016 performance-based bonus program, as a dollar amount and a percentage of target bonus, as well as the target bonus on which such bonus was based, is shown in the table below:
|
|
|
|
|
|
|
|
|
|
|
Named Executive Officer
|
|
2016 Target Bonus
|
|
2016 Actual Bonus
|
|
Actual Bonus
as a % of Target
|
|
Scott Tarriff
(1)
|
|
$
|
725,000
|
|
$
|
1,087,500
|
|
|
150
|
%
|
David E. Riggs
(2)
|
|
$
|
261,000
|
|
$
|
261,000
|
|
|
100
|
%
|
Adrian J. Hepner, M.D., Ph.D.
(3)
|
|
$
|
240,000
|
|
$
|
480,000
|
(4)
|
|
200
|
%
|
Steven L. Krill, Ph.D.
(5)
|
|
$
|
240,000
|
|
$
|
216,000
|
|
|
90
|
%
|
-
(1)
Mr. Tarriff
was awarded a performance bonus equal to 150% of his target bonus in recognition of his leadership in managing the executive team, the execution
of the organization against his vision for the Company and his contribution to stockholder relations in 2016.
(2)
Mr. Riggs
was awarded a performance bonus equal to 100% of his target bonus in recognition of his management of the finance group during a period of rapid
growth and change for our business.
(3)
Dr. Hepner
was awarded a performance bonus equal to 200% of his target bonus in recognition of his exceptional contribution to the development of our product
pipeline as well as his assumption of additional management responsibilities for a larger employee base.
(4)
Dr. Hepner
was also awarded a discretionary bonus of $350,000 outside of the 2016 performance-based bonus program in recognition of his achievement of
additional goals regarding previously unidentified product opportunities not originally contemplated as part of our corporate goals under the 2016 performance-based bonus program, including laying the
groundwork for potential new indications for Ryanodex.
(5)
Dr. Krill
was awarded a performance bonus equal to 90% of his target bonus in recognition of his contributions to the work done to develop new product
formulations in 2016 and his efforts in achieving company targets although not in line with company timeline expectations.
In
recommending and approving the bonus payments above to our named executive officers in early 2017, the compensation committee also reviewed each named executive officer's total cash and equity
compensation for 2016 against market data for our peer companies as of such time as a reference point. The compensation committee noted that bonus payments in excess of 100% of the target bonuses were
above the median of the market data and determined that this level of payment was appropriate for each of Mr. Tarriff and Dr. Hepner due to their significant roles in our corporate
achievements, as described above. With respect to all of our named executive officers, the compensation committee felt the bonus payments were meaningful and appropriate in recognition of the
achievement of all of our corporate objectives at 100% of target, the expansion of our commercial operations, the growth in our marketed products as well as the breadth of our business with the
addition of Eagle Biologics and our very strong stock price performance in 2016 as compared to our peers and the pharmaceutical sector as a whole.
Equity-Based Incentive Awards
We have historically granted equity compensation to our executive officers exclusively in the form of stock options. This distinguishes us from the majority
of our peer companies who grant equity awards in the form of restricted stock units in addition to or in lieu of stock options. The compensation committee evaluated the appropriate form of equity
compensation for our Company and in 2016, the compensation committee determined that our long-term incentive compensation program for the named executive officers would continue to consist of stock
options that vest over a four-year period, subject to the executive's continued service. The compensation committee believes that stock options are inherently performance-based, and automatically link
executive pay to stockholder return, as the value realized, if any, by the executive from an award of stock options, is dependent upon, and directly proportionate to,
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Table of Contents
appreciation
in stock price. Regardless of reported value in the Summary Compensation Table, our named executive officers will only receive value from their stock option awards if the price of our
common stock increases above the price at time of grant, and remains above such price as the stock options continue to vest. Stock options also do not have downside protection, and the awards will not
provide value to the holder when the stock price is below the exercise price.
In
January 2016, our compensation committee reviewed and recommended to our full Board awards of stock options to each of our named executive officers, which were approved by the independent
members of the full Board. In determining the appropriate amount of each award, the compensation committee considered market data provided by Compensia for the 2016 peer group at the
50
th
and 75
th
percentile levels, reflecting the equity value, based on approximated grant date fair value. The compensation committee also considered each
named executive officer's current equity holdings, the extent to which such holdings were "in-the-money," the extent to which such holdings remained unvested and therefore continued to serve as a
retention tool, as well as the potential dilution of our share reserves.
Based
on such review, the compensation committee approved and recommend to the full Board, and the independent members of the Board approved, the following equity grants for our named executive
officers in January 2016, each of which vests monthly over a four-year period:
|
|
|
|
|
Named Executive Officer
|
|
Stock Option Grant
(# shares)
|
|
Scott Tarriff
|
|
|
180,000
|
|
Steven L. Krill, Ph.D.
|
|
|
62,100
|
|
David E. Riggs
|
|
|
62,100
|
|
Adrian Hepner, M.D., Ph.D.
|
|
|
62,100
|
|
Mr. Tarriff's
equity grant was positioned at approximately the 75
th
percentile of the market data provided by Compensia for equity value. The compensation committee
determined that, due to his extensive professional experience in the pharmaceutical business and his specialized knowledge of our business, as well as his role in our 2015 performance, this
positioning was warranted to retain and incentivize
Mr. Tarriff. Likewise, the compensation committee determined the size of the annual award for each of our other executive officers, to position the equity value of such awards within the range
(above for some, and below for others) of the 75
th
percentile of the market data provided by Compensia for each such executive officer, and to deliver the same equity value to
each officer, to promote internal equity amongst our executive team. The compensation committee determined the above-median positioning of the equity awards was appropriate at this time to deliver
opportunities that allow our executives to realize returns above the median of our peers if our stockholders also realize such returns, which serves to align our executives' interests with those of
our stockholders.
OTHER FEATURES OF OUR EXECUTIVE COMPENSATION PROGRAM
Agreements with our Named Executive Officers
Our Chief Executive Officer entered an employment agreement and our other named executive officers each signed offer letters of employment upon their joining
the Company. Each of these agreements established the executive officer's starting salary, initial target annual bonus percentage, and initial grant of options. These individuals' salaries, bonus and
equity amounts are reviewed annually by the compensation committee and have subsequently been increased, most recently to the amounts described above in this Compensation Discussion and Analysis.
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Table of Contents
Severance and Change in Control Benefits
In December 2015, the compensation committee approved a Letter Agreement Regarding Equity Awards, or the Letter Agreement, setting forth the eligibility for
equity award vesting acceleration. The Letter Agreement was subsequently entered into with each of our named executive officers, and provides that, if in connection with a "Change in Control" (as
defined in the applicable equity plan), an equity award is substituted for a similar award of the successor or acquiror entity and the award holder experiences a "Qualifying Termination" (as defined
in the Letter Agreement) within ninety days prior to or twelve months following such change in control, any unvested portion of any
applicable equity award will become fully vested; and, if in connection with a change in control an equity award will terminate and not be assumed or continued by, or substituted for a similar award
of, the successor or acquiror entity, then, any unvested portion of any applicable equity award will become fully vested, subject to the consummation of such change in control. The Letter Agreement
amended the terms of all previously granted and outstanding equity awards under our 2007 Plan and 2014 Plan, and unless otherwise provided by us at the time of grant, will apply to all future equity
awards.
We
maintain an Officer Severance Benefit Plan, or the Severance Plan, under which our named executive officers are eligible to receive severance payments and benefits upon a termination without Cause
(as defined in the Severance Plan). Such payments and benefits include (i) base salary continuation and payments for continuation of coverage under COBRA for six months, (ii) a pro-rata
portion of his annual bonus for the performance period in which the termination occurs and (iii) certain outplacement benefits.
Our
Chief Executive Officer is also eligible to receive severance benefits under the terms of his employment agreement, described below under "Potential Payments Upon Termination or Change in
Control".
Our
compensation committee periodically reviews the severance and change in control payments and benefits that we provide, including by reference to market data, to ensure they remain appropriately
structured and at reasonable levels. The compensation committee believes that that severance protection payments and benefits are necessary to provide stability among our executive officers, serve to
focus our executive officers on our business operations, and avoid distractions in connection with a potential change in control transaction or period of uncertainty.
A
more detailed description of the Severance Plan and each of our named executive officer payment and benefit levels thereunder and other severance and change in control benefits is provided below
under "Potential Payments upon Termination or Change in Control."
Welfare and Health Benefits
Our named executive officers are eligible to participate in all of our benefit plans, such as the 401(k) plan (see the section below titled "401(k) Plan"),
medical, dental, vision, short-term disability, long-term disability, group life insurance and our 2014 Employee Stock Purchase Plan, in each case generally on the same basis as other employees. We do
not currently have qualified or nonqualified defined benefit plans or deferred compensation plans, nor do we offer pension or other retirement benefits other than our 401(k) plan. Our Board may elect
to adopt such plans in the future if it determines that doing so is in our best interests.
Perquisites and Other Benefits
We typically do not offer perquisites or personal benefits to our named executive officers; we may from time to time provide reasonable relocation or signing
bonuses to our named executive officers as our compensation committee determines appropriate to assist such individuals to commence employment with us.
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Table of Contents
401(k) Plan
We maintain a 401(k) profit sharing plan, or 401(k) plan, for our employees. Our named executive officers are eligible to participate in the 401(k) plan on
the same basis as our other employees. The 401(k) plan is intended to qualify as a tax-qualified plan under Section 401(k) of the Internal Revenue Code. The 401(k) plan provides that each
participant may contribute up to the lesser of 75% of his or her compensation or the statutory limit, which was $18,000 for calendar year 2016. Participants who are 50 years old or older can
also make "catch-up" contributions, which in calendar year 2016 was up to an additional $6,000, above the statutory limit. We did not make matching contributions or profit sharing contributions into
the 401(k) plan on behalf of participants in fiscal year 2015. In January 2016, the compensation committee approved an amendment to the 401(k) plan to provide for a match of 100% of an employee's
contribution up to 3% of such employee's base salary and an additional match of 50% of such employee's contribution for the next 2% of such employee's base salary. Participant contributions are held
and invested, pursuant to the participant's instructions, by the plan's trustee.
Accounting and Tax Considerations
Under Financial Accounting Standard Board ASC Topic 718, or ASC 718, we are required to estimate and record an expense for each award of equity
compensation over the vesting period of the award. We record share-based compensation expense on an ongoing basis according to ASC 718. The compensation committee has considered, and may in the
future consider, the grant of performance-based or other types of stock awards to our executive officers in lieu of or in addition to stock option grants in light of the accounting impact of
ASC 718 and other considerations.
Section 162(m)
of the Internal Revenue Code of 1986, as amended, or the Code, limits companies (including our company) to a deduction for federal income tax purposes of not more than
$1 million of compensation paid to certain executive officers in a calendar year. Compensation above $1 million may be deducted if it is "performance-based compensation," as defined in
the Code and accompanying regulations. Our 2014 Plan is structured to permit the grant of stock options and other equity awards that are "performance-based compensation" under section 162(m).
To maintain flexibility in compensating our executive officers in a manner designed to promote our goals, the compensation committee does not have a formal policy at this time for determining which
forms of incentive compensation awarded to our executive officers will be designed to qualify as "performance-based compensation" for purposes of section 162(m) or requiring all compensation to
be deductible. The compensation committee intends to continue to evaluate the effects of the compensation limits of section 162(m) on any compensation it proposes to grant, and further intends
to continue to provide future compensation in a manner consistent with the best interests of the company and our stockholders.
Compensation Recovery ("Clawback") Policy
As a public company, if we are required to restate our financial results due to our material noncompliance with any financial reporting requirements under the
federal securities laws as a result of misconduct, our Chief Executive Officer and Chief Financial Officer may be legally required to reimburse us for any bonus or other incentive-based or
equity-based compensation they receive in accordance with the provisions of section 304 of the Sarbanes-Oxley Act of 2002. Additionally, we intend to implement a Dodd-Frank Wall Street Reform
and Consumer Protection Act-compliant compensation recovery "clawback" policy as soon as, and to the extent that, the requirements of such clawbacks are finalized by the SEC.
Stock Ownership Guidelines
In 2017 we adopted executive stock ownership guidelines to help ensure that our senior executives and non-employee directors each maintain an equity stake in
the company, and by doing so, appropriately link their interests with those of our other stockholders. These guidelines require our Chief Executive Officer
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to
own equity interests in the company with a value equal to six times his base salary, each other senior executive officer to own equity interests with a value equal to two times his or her
respective base salary, and all non-employee directors to own equity interests with a value equal to three times their respective director's annual retainer, each as calculated under our policy. The
guideline requires our Chief Executive Officer, senior executive officers and non- employee directors to retain at least 25% of net after tax shares obtained via the exercise of any stock options or
vesting of any other company stock awards until the individual meets our prescribed ownership guidelines. Compliance is assessed annually, and executives and directors have an initial compliance
period (ranging from zero to five years, depending on how long they have been in such capacity with the Company at the time the guidelines are effective) from the date on which they become subject to
the guidelines to acquire the required shares, and are allotted a shorter compliance period when an ownership guideline is increased due to a change in base salary, retainer or service status.
Policy Against Speculative Activity In Our Common Stock
We maintain a corporate policy prohibiting any officer, director, other employee or consultant of our Company from engaging in short sales, transactions in
put or call options, hedging transactions or other inherently speculative transactions with respect to our stock at any time. In addition, none of our officers, directors, other employees or
consultants may margin, or make any offer to margin, any of the Company's stock, including without limitation, borrowing against such stock, at any time. In 2015, the compensation committee, after
deliberation, granted our Chief Executive Officer a limited waiver under the policy to pledge a certain number of his shares in connection with a private matter. In 2016, this pledge was unwound and
all shares subject to the pledge were reclaimed by the Chief Executive Officer with no off set.
Risk Assessment Concerning Compensation Practices and Policies
Our compensation committee has reviewed our compensation policies and practices to assess whether they encourage our employees to take inappropriate risks.
After reviewing and assessing our compensation philosophy, policies and practices, including the mix of fixed and variable, short-term and long-term incentives and overall pay, incentive plan
structures, and the checks and balances built into, and oversight of, each plan and practice, the compensation committee has determined that any risks arising from our compensation policies and
practices for our employees are not reasonably likely to have a material adverse effect on our company as a whole.
Further,
the compensation committee believes that the mix and design of the elements of executive compensation do not encourage management to assume excessive risks; the mix of short-term compensation
(in the form of base salary and an annual bonus, if any, which is based on a variety of performance factors), and long-term compensation (in the form of stock options) prevents undue focus on
short-term results and helps align the interests of our executive officers with the interests of our stockholders.