Item 5.01.
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Changes in Control of Registrant.
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The information set forth in Item 2.01 of this Current Report on Form 8-K regarding the Merger and the information set forth in Item 5.02 of this Current Report on Form 8-K regarding the Board and executive officers
following the Merger are incorporated by reference into this Item 5.01.
Pursuant to the Merger Agreement, all of the directors of the Company prior to the Merger other than Mr. Richard J. Rodgers (Douglas Swirsky, Peter Brandt, Charles Beever, Kwang Soo Cheong, Gil Price and Lara
Sullivan), resigned from the Company’s board of directors (the “Board”) and any respective committees to which they belonged, immediately prior to the effective time of the Merger. The
Board then appointed, effective as of the effective time of the Merger, six designees selected by Ocuphire.
Effective as of the effective time of the Merger, the Board appointed Mina Sooch, Sean Ainsworth, James S. Manuso, Cam Gallagher, Alan R. Meyer and Susan K. Benton to the Board. Richard J. Rodgers remained on the Board
as Rexahn Pharmaceuticals, Inc.’s designee pursuant to the Merger Agreement.
Item 5.02.
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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Directors
In accordance with the Merger Agreement, on November 5, 2020, in connection with the closing of the Merger, Douglas Swirsky, Peter Brandt, Charles Beever, Kwang Soo Cheong, Gil Price and Lara Sullivan resigned from the
Board and any committees of the Board on which they respectively served, which resignations were not the result of any disagreements with the Company relating to the Company’s operations, policies or practices.
Mr. Gallagher was appointed Chair of the Board, Ms. Sooch was appointed as Vice Chair of the Board and Mr. Ainsworth was appointed as Lead Independent Director. Dr. Manuso and Messrs. Ainsworth and Rodgers were appointed to the Company’s Audit
Committee (with Mr. Rodgers serving as chair of the committee and audit committee financial expert); Messrs. Ainsworth, Gallagher and Rodgers were appointed to the Company’s Compensation Committee (with Mr. Ainsworth serving as chair of the
committee); and Messrs. Manuso and Gallagher and Ms. Benton were appointed to the Company’s Nominating and Corporate Governance Committee (with Mr. Manuso serving as chair of the committee). Each of the directors will also enter into an indemnity
agreement with the Company. For additional information regarding the indemnity agreements between the Company and each of its directors, please refer to the form of indemnity agreement filed herewith as Exhibit 10.8.
Biographical information for the newly appointed directors and disclosure regarding related party transactions involving Ocuphire and the newly appointed directors are included in the Proxy Statement and incorporated
herein by reference.
Director Compensation
In connection with the Merger, the Board approved a new director compensation policy (the “Compensation Policy”) for its non-employee directors. Other than
reimbursement for reasonable expenses incurred in connection with attending Board and committee meetings, the Compensation Policy provides for the following cash compensation:
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each non-employee director is entitled to receive an annual fee from us of $40,000;
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the chair of the Board will receive an additional annual fee of $35,000;
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the chair of our audit committee will receive an annual fee from us of $15,000;
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the chair of our compensation committee will receive an annual fee from us of $10,000;
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the chair of our nominating and corporate governance committee will receive an annual fee from the Company of $8,000; and
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each non-chairperson member of the audit committee, the compensation committee and the nominating and corporate governance committee will receive annual fees from us of $7,500, $5,000 and $4,000, respectively.
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Each non-employee director that joins the Board receives an initial option grant to purchase 40,000 shares of Company common stock, which shall vest in a series of three successive equal annual installments over the
three-year period measured from the date of grant. Each non-employee director also receives an annual option grant to purchase 20,000 shares of Company common stock, which shall vest 100% upon the earlier of the one-year anniversary of the grant
date or the next annual stockholder meeting. Upon a change in control, as defined in the Company’s equity incentive plan, 100% of the shares underlying these options shall become vested and exercisable immediately prior to such change in control.
The description of the Compensation Policy is subject to and qualified in its entirety by reference to the Compensation Policy, a copy of which is attached as Exhibit 10.9 hereto and incorporated herein by reference.
Executive Officers
In accordance with the Merger Agreement, on November 5, 2020, the employment of the Company’s Chief Executive Officer and President, Mr. Douglas Swirsky terminated immediately following the effectiveness of the Merger.
Following the termination of his employment and execution of a general release of claims, pursuant to his employment agreement, Mr. Swirsky received a lump sum cash payment in an amount equal to $1,180,398.
The Board has appointed Mina Sooch as the Company’s President, Chief Executive Officer and Treasurer, and Bernhard Hoffmann as the Company’s Vice President of Corporate Development and Finance and Secretary, in each
case, effective November 6, 2020. Each of Ms. Sooch and Mr. Hoffmann will enter into an indemnity agreement with the Company, a form of which is attached hereto as Exhibit 10.8. There are no family relationships among any of the Company’s
directors and executive officers. Ms. Sooch will serve as the Company’s principal executive officer and Mr. Hoffmann will serve as the Company’s principal financial and accounting officer.
Biographical information for the newly appointed directors and disclosure regarding related party transactions involving Ocuphire and the newly appointed directors are included in the Proxy Statement and incorporated
herein by reference.
Ms. Mina Sooch. In June 2020, Ocuphire and Ms. Sooch entered into a new employment agreement (the “Sooch
Employment Agreement”) to be effective upon the closing of the Merger. The Sooch Employment Agreement provides for the employment of Ms. Sooch as the Company’s President and Chief Executive Officer. Ms. Sooch will also be eligible to
receive a stock option grant at the conclusion of each fiscal year based upon performance criteria as determined by the Company’s Compensation Committee at the beginning of each fiscal year and to participate in the Company’s employee benefit plans
in effect for similarly situated employees.
Mr. Bernhard Hoffmann. In June 2020, Ocuphire and Mr. Hoffmann entered into a new employment agreement (the “Hoffmann Employment Agreement”) to be effective upon the closing of the Merger. The Hoffmann Employment Agreement provides for the employment of Mr. Hoffmann as the Company’s Vice President of Corporate Development and Finance.
Mr. Hoffmann will also be eligible to receive a stock option grant at the conclusion of each fiscal year based upon performance criteria as determined by the Company’s Compensation Committee at the beginning of each fiscal year and to participate
in the Company’s employee benefit plans in effect for similarly situated employees.
The foregoing description is not complete and is qualified in its entirety by reference to the Sooch Employment and the Hoffmann Employment Agreement, copies of which are attached hereto as Exhibit 10.6 and Exhibit
10.7, respectively.
Ocuphire 2020 Plan
At the Special Meeting, the stockholders of the Company approved the Ocuphire 2020 Plan. The Ocuphire 2020 Plan had previously been approved by the Board, subject to stockholder approval. The Ocuphire 2020 Plan became
effective on November 5, 2020. Under the Ocuphire 2020 Plan, (i) 1,000,000 new shares of Common Stock are reserved for issuance and (ii) up to 1,063,246 additional shares
of Common Stock may be issued, consisting of (A) shares that remain available for the issuance of awards under the Prior Plans and (B) shares of common stock subject to outstanding stock options or other awards covered by the Prior Plans that have
been cancelled or expire on or after the date that the Ocuphire 2020 Plan becomes effective.
For a description of the Ocuphire 2020 Plan, please refer to
“Proposal No. 4:
Approval of the Adoption of the Ocuphire 2020 Plan” in the Proxy Statement, which information is incorporated herein by reference. The description of the Ocuphire 2020 Plan is subject to and qualified in
its entirety by reference to the Ocuphire 2020 Plan, which is attached as Exhibit 10.5 hereto and incorporated herein by reference.
Item 5.05
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Amendments to Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.
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On November 5, 2020, in connection with the consummation of the Merger, the Board adopted a new Code of Business Conduct and Ethics (the “Code of Conduct”)
which applies to all of the Company’s directors, officers and employees, including its principal executive officer, principal financial officer, principal accounting officer and persons performing similar functions. The Code of Conduct, among other
things, enhances the description of the policies and regulations pertaining to conflicts of interest, insider trading, confidentiality, honest and ethical conduct and fair dealing, gifts and gratuities, accuracy of books and records and public
reports and concerns regarding accounting and auditing matters. The Code of Conduct also describes the procedures for waivers of the Code of Conduct and for reporting suspected violations of the Code.
The foregoing description of the Code of Conduct is subject to and qualified in its entirety by reference to the Code of Conduct, a copy of which is attached hereto as Exhibit 14.1, and incorporated herein by
reference.