UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to
Section
14(a) of the Securities Exchange Act of 1934
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Definitive
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| ☐ |
Definitive
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Soliciting
Material Pursuant to §240.14a-12 |
enVVeno
Medical Corporation
(Name
of Registrant as Specified in Its Charter)
N/A
(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
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of Filing Fee (Check the appropriate box):
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November
3, 2023
Dear
enVVeno Medical Shareholders:
It
is my pleasure to provide additional context for a few of our key accomplishments over the past year and to set the stage for what you
can expect from the Company throughout 2024.
As
you are all now aware, we recently announced full enrollment for our 75 subject SAVVE pivotal trial for the VenoValve. Although we
had expected to reach full enrollment in SAVVE at the end of 2023, we saw a significant enrollment surge during the summer resulting
in the enrollment of 18 patients over the final two months of the enrollment period and our achieving full enrollment 4 months earlier than
expected. The surge in demand can be attributed to several factors including our Primary Investigators’ affinity for the
device and the clinical results they are seeing, the large deep venous CVI patient population in need of an effective treatment, and
the dedication and teamwork among employees at all levels of our Company and at our study sites.
A
study recently published in JAMA underscores the enormity of our full and early enrollment achievement. The study, published in 2023,
looked at surgical clinical trials that took place between January 1, 2010 and December 31, 2014. Of the 2,542 surgical clinical trials
identified for the study, only 14.6% of the surgical trials reached their target sample sizes within their planned timeframes, with only
45.9% of surgical trials ever meeting their enrollment targets, and only 20.4% having been completed within their planned timeframes.
As
opposed to the surgical trials over the 2010 to 2014 timeframe studied by JAMA, enrollment and timing of the SAVVE study faced an additional
obstacle as annual hospital turnover rates over the past few years have been reported to be as high as 26%. As an example, over the course
of the SAVVE study, we experienced more than 40 clinical coordinator changes among our 20 to 25 clinical sites. When a clinical coordinator
leaves their position at the hospital, enrollment generally stops, and does not resume until a new coordinator is hired and trained.
As the JAMA study illustrates, under normal circumstances, surgical studies are extremely difficult to complete on time and with full
enrollment. With the added burden of unprecedented staffing turnover rates, the magnitude of difficulty for the SAVVE study was exponentially
higher.
We
are extremely proud to have achieved full enrollment for the SAVVE study. That achievement resulted from “out-of-the-box”
solutions to complex challenges presented by surgical studies in general, in addition to the unprecedented hospital labor turnover rates
and labor shortages of the current market. Our success would not have been possible without the unwavering dedication and support of
both our in-house and outside clinical teams and our marketing team, in locating and identifying patients with severe CVI, screening
these patients, and enrolling them in the study. To everybody involved with the SAVVE study, I offer my sincere appreciation and gratitude.
At
the same time that we announced full enrollment in the SAVVE study, we also announced the completion of a $28 million private placement,
which should be sufficient capital to fund the Company through the end of 2025, including what we expect will be regulatory approval
for the VenoValve, and the start of the pivotal trial for enVVe, our transcatheter replacement venous valve. In the current economic
environment, many micro-cap companies are only able to raise capital on terms that are overly burdensome to the companies, and other
companies are unable to raise any capital at all. Through a combination of our existing investors, and our ability to attract new, well-respected
healthcare focused institutional investors, we were able to complete a financing with terms that are advantageous to both the Company
and investors. Our ability to complete this type of financing is a direct reflection of the institutional healthcare investors’
assessments of our accomplishments with the development of the VenoValve and enVVe, and our prospects for continued success.
Our
plans for 2024 include the release of preliminary efficacy data from the SAVVE study, the filing an application with the U.S. Food and
Drug Administration (FDA) seeking pre-market approval (PMA) for the VenoValve, and the filing of an investigational device exemption
(IDE) application with the FDA, for the enVVe pivotal trial. With sufficient capital to both accomplish these milestones and reap the
benefit from their results, it is an exciting time to be an enVVeno Medical Shareholder.
Please
join us at our upcoming virtual annual meeting, which is scheduled for December 5, 2023 at 9:00 AM PST.
Sincerely,
Robert
A. Berman
enVVeno
Medical Corporation
70
Doppler Irvine, California 92618
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
To
be held on Tuesday, December 5, 2023
The
2023 Annual Meeting of Stockholders (the “Meeting”) of enVVeno Medical Corporation (the “Company”)
will be held on a virtual basis on Tuesday, December 5, 2023 at 9:00 A.M. PST, for the following purposes:
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1. |
To
elect Mr. Robert C. Gray as a Class III director of the Company, to serve for a three-year term that expires at the 2026 Annual Meeting
of Stockholders, or until his successor is elected and qualified or until his earlier death, incapacity, removal or resignation; |
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2. |
To
ratify the appointment by the Audit Committee of the Company’s Board of Directors of Marcum LLP as the Company’s registered
public accounting firm for the fiscal year ending December 31, 2023; and |
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|
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3. |
To
transact, in the discretion of the Company’s Board of Directors, such other business as may properly come before the Meeting
or any adjournment thereof. |
The
Meeting will be a completely virtual meeting of stockholders, which will be conducted via live webcast. You will be able to attend the
Meeting online, vote and submit your questions during the Meeting by visiting www.virtualshareholdermeeting.com/NVNO2023. We are
pleased to utilize the virtual stockholder meeting technology to provide ready access and cost savings for our stockholders and the Company.
The virtual meeting format allows attendance from any location in the world.
Even
if you are planning on attending the Meeting online, please promptly submit your proxy vote via the Internet, by telephone or by completing,
dating, signing and returning the enclosed proxy, so your shares will be represented at the Meeting. Instructions on voting your shares
are on the proxy materials you received for the Meeting. Even if you plan to attend the Meeting online, it is strongly recommended you
vote before the Meeting date, to ensure that your shares will be represented at the Meeting if you are unable to attend.
Details
regarding admission to the Meeting and the business to be conducted at the meeting are more fully described in the accompanying Notice
of Meeting of Stockholders and proxy statement.
We
hope you will be able to attend the Meeting. Whether or not you plan to attend the Meeting, please promptly sign, date and return the
enclosed proxy card or voting instruction card in the envelope provided, or submit your proxy over the Internet or by telephone (if those
options are available to you) in accordance with the instructions on the enclosed proxy card or voting instruction card.
The
Board of Directors unanimously recommends a vote “FOR” the director nominee and “FOR” the approval of each of
the other proposals to be submitted by the Board of Directors at the Meeting.
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BY
ORDER OF THE BOARD OF DIRECTORS, |
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|
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Robert
A. Berman, |
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Chief
Executive Officer |
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| November
3, 2023 |
|
TABLE
OF CONTENTS
enVVeno
Medical Corporation
70
Doppler Irvine, California 92618
(949)
261-2900
PROXY
STATEMENT
ANNUAL
MEETING OF STOCKHOLDERS
to
be held via live webcast on Tuesday December 5, 2023, 9:00 a.m., Pacific Time
QUESTIONS
AND ANSWERS ABOUT THESE PROXY MATERIALS
Why
am I receiving this Proxy Statement?
This
Proxy Statement describes the proposals on which our Board of Directors (the “Board”) would like you, as a stockholder,
to vote on at our 2023 Annual Meeting of the Stockholders (the “Meeting”), which will take place on Tuesday, December
5, 2023 at 9:00 am Pacific time via live webcast.
This
Proxy Statement also gives you information on these proposals so that you can make an informed decision. We intend to mail this Proxy
Statement and accompanying proxy card on or about November 3, 2023, to all stockholders of record entitled to vote at the Meeting.
In
this Proxy Statement, we refer to enVVeno Medical Corporation as the “Company,” “we,” “us” or “our”
or similar terminology.
Who
can vote at the Meeting?
Stockholders
who owned shares of our common stock, par value $0.00001 per share (the “Common Stock” and such shares of held on
the Record Date, the “Voting Stock”) on October 13, 2023 (the “Record Date”) may attend and vote
at the Meeting. Each share of Common Stock is entitled to one vote. There were 13,316,636 shares of Common Stock outstanding on the Record
Date. All shares of Voting Stock vote together as a single class. Shares of the Voting Stock represented by executed proxies received
by the Company will be counted for purposes of establishing a quorum at the Meeting, regardless of how or whether such shares are voted
on any specific proposal. Information about the stockholdings of our directors and executive officers is contained in the section of
this Proxy Statement entitled “Beneficial Ownership of Principal Stockholders, Officers and Directors”.
What
is the proxy card?
The
proxy card enables you to appoint Robert A. Berman, our Chief Executive Officer, as your representative at the Meeting. By completing
and returning the proxy card or voting online as described herein, you are authorizing Mr. Berman to vote your shares at the Meeting
in accordance with your instructions on the proxy card. This way, your shares will be voted whether or not you attend the Meeting. Even
if you plan to attend the Meeting, we think that it is a good idea to complete and return your proxy card before the Meeting date just
in case your plans change. If a proposal comes up for vote at the Meeting that is not on the proxy card, the proxies will vote your shares,
under your proxy, according to their best judgment.
What
am I voting on?
You
are being asked to vote on the following proposals:
| 1. |
To
elect Mr. Robert C. Gray as a Class III director of the Company, to serve for a three-year term that expires at the 2026 Annual Meeting
of Stockholders, or until his successor is elected and qualified or until his earlier death, incapacity, removal or resignation; |
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| 2. |
To
ratify the appointment by the Audit Committee of the Company’s Board of Directors of Marcum LLP as the Company’s registered
public accounting firm for the fiscal year ending December 31, 2023; and |
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|
| 3. |
To
transact, in the discretion of the Company’s Board, such other business as may properly come before the Meeting or any adjournment
thereof. |
How
does the Board recommend that I vote?
Our
Board unanimously recommends that the stockholders vote “FOR” the director nominee and “FOR” all of the other
proposals being put before our stockholders by the Board at the Meeting.
What
is the difference between holding shares as a stockholder of record and as a beneficial owner?
Most
of our stockholders hold their shares in an account at a brokerage firm, bank or other nominee holder, rather than holding share certificates
in their own name. As summarized below, there are some distinctions between shares held of record and those owned beneficially.
Stockholder
of Record
If,
on the Record Date, your shares were registered directly in your name with our transfer agent, Equiniti Trust Company, LLC, you are a
“stockholder of record” who may vote at the Meeting, and we are sending these proxy materials directly to you. As the stockholder
of record, you have the right to direct the voting of your shares as described below. Whether or not you plan to attend the Meeting,
please complete, date and sign the enclosed proxy card to ensure that your vote is counted.
Beneficial
Owner
If,
on the Record Date, your shares were held in an account at a brokerage firm or at a bank or other nominee holder, you are considered
the beneficial owner of shares held “in street name,” and these proxy materials are being forwarded to you by or at the direction
of your broker or nominee who is considered the stockholder of record for purposes of voting at the Meeting. As the beneficial owner,
you have the right to vote your shares and to attend the Meeting as described below. Whether or not you plan to attend the Meeting, please
vote prior to the Meeting as described below to ensure that your vote is counted.
How
do I vote?
There
are four ways to vote:
(1)
Via the Internet. Use the internet to vote by going to the internet address listed on your proxy card; have your proxy
card in hand as you will be prompted to enter your control number to create and submit an electronic vote. If you vote in this manner,
your “proxy,” whose name is listed on the proxy card, will vote your shares as you instruct on the proxy card. If you sign
and return the proxy card or submit an electronic vote but do not give instructions on how to vote your shares, your shares will be voted
as recommended by the Board.
(2)
Via telephone. Using a touch-tone telephone, you may transmit your voting instructions to the number provided on your proxy
card. Have your proxy card in hand as you will be prompted to enter your control number to create and submit a telephonic vote.
(3)
In person. You may vote at the Meeting by following the instructions when you log-in for the Meeting. Have your proxy card
in hand as you will be prompted to enter your control number to vote at the Meeting.
(4)
By Mail. You may vote by mail. If you are a record holder, you may vote by proxy by filling out the proxy card and sending
it back in the envelope provided. If you are a beneficial holder you may vote by proxy by filling out the vote instruction form and sending
it back in the envelope provided by your brokerage firm, bank, broker-dealer or other similar organization that holds your shares.
What
does it mean if I receive more than one proxy card?
You
may have multiple accounts at the transfer agent and/or with brokerage firms. Please sign and return all proxy cards to ensure that all
of your shares are voted.
What
if I change my mind after I return my proxy?
You
may revoke your proxy and change your vote at any time before the polls close at the Meeting. You may do this by:
| |
● |
sending
a written notice to the Chief Financial Officer of the Company stating that you would like to revoke your proxy of a particular date; |
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● |
signing
another proxy card with a later date and returning it before the polls close at the Meeting or voting online or by telephone again
at a later date; or |
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|
|
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● |
participating
in the Meeting live via the internet and voting again. |
Please
note, however, that if your shares are held of record by a brokerage firm, bank or other nominee, you may need to instruct your broker,
bank or other nominee that you wish to change your vote by following the procedures on the voting form provided to you by the broker,
bank or other nominee.
Will
my shares be voted if I do not sign and return my proxy card?
If
your shares are held in your name and you do not sign and return your proxy card or vote online, your shares will not be voted unless
you vote at the Meeting. If you hold your shares in the name of a broker, bank or other nominee, your nominee may determine to vote your
shares at its own discretion on the ratification of the Company’s independent public accountant since such matter is a routine
matter, absent instructions from you. However, due to voting rules that may prevent your bank or broker from voting your uninstructed
shares on a discretionary basis in the election of directors, it is important that you cast your vote.
How
may I vote with respect to each proposal and how are votes counted?
Your
voting options will be dependent on the particular proposal for which you wish to cast a vote. With respect to proposal 1 (the election
of directors), you may vote “for” the director nominee or “withhold” authority to vote for the director nominee.
With respect to proposal 2 (ratification of the Company’s independent public accountant), you may vote “for” or “against”
the proposal or you may “abstain” from casting a vote on such proposal. Abstentions, votes marked “withheld”
and broker non-votes will be counted for the purpose of determining whether a quorum is present at the Meeting.
Broker
non-votes occur on a matter when a broker is not permitted to vote on that matter without instructions from the beneficial owner and
instructions are not given. These matters are referred to as “non-routine” matters. The election of the directors is “non-routine.”
Thus, in tabulating the voting result for these proposals, shares that constitute broker non-votes are not considered votes cast on those
proposals. The ratification of the appointment of the Company’s independent public accountant is a “routine” matter
and therefore a broker may vote on this matter without instructions from the beneficial owner as long as instructions are not given.
How
many votes are required to elect Mr. Robert C. Gray as a Class III director?
Our
amended and restated bylaws provides that directors are to be elected by a plurality of the votes of the shares present in person or
represented by proxy at the Meeting and entitled to vote on the election of directors. This means that the one (1) candidate receiving
the highest number of affirmative votes at the Meeting will be elected as the Class III director. Only shares that are voted in favor
of a particular nominee will be counted toward that nominee’s achievement of a plurality. Shares present at the Meeting that are
not voted for a particular nominee or shares present by proxy where the stockholder properly withheld authority to vote for such nominee
will not be counted toward that nominee’s achievement of a plurality.
How
many votes are required to ratify the Company’s independent public accountants?
The
affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or
by proxy and entitled to vote thereon is required to ratify Marcum LLP as our independent registered public accounting firm for the year
ending December 31, 2023. Abstentions will have the effect of a vote against this proposal, but since this is a routine matter, brokers
may vote at the Meeting on this proposal provided that they have not received instructions from a beneficial owner.
What
happens if I don’t indicate how to vote my proxy?
If
you just sign your proxy card without providing further instructions, your shares will be counted as a “for” vote for the
director nominee and a “for” vote for the ratification of Marcum LLP as our independent registered public accounting firm
for the year ending December 31, 2023. If a proposal comes up for a vote at the Meeting that is not on the proxy card, the proxy will
vote according to his best judgment.
Is
my vote kept confidential?
Proxies,
ballots and voting tabulations identifying stockholders are kept confidential and will not be disclosed except as may be necessary to
meet legal requirements.
Where
do I find the voting results of the Meeting?
We
will announce voting results at the Meeting and file a Current Report on Form 8-K announcing the voting results of the Meeting.
Who
can help answer my questions?
You
can contact our Chief Financial Officer, Mr. Craig Glynn, at (949) 261-2900 or by sending a letter to Mr. Glynn at the offices of the
Company at 70 Doppler Irvine, California 92618, with any questions about proposals described in this Proxy Statement or how to execute
your vote.
enVVeno
Medical Corporation
70
Doppler Irvine, California 92618
(949)
261-2900
PROXY
STATEMENT
INTRODUCTION
2023
Annual Meeting of Stockholders
This
Proxy Statement is being furnished to the holders of our Common Stock in connection with the solicitation of proxies for use at the 2023
Annual Meeting of Stockholders of the Company. The Meeting is to be held via live webcast on Tuesday December 5, 2023 at 9:00 a.m., Pacific
Time, and at any adjournment or adjournments thereof.
Record
Date; Mailing Date
The
Board has fixed the close of business on October 13, 2023 as the Record Date for the determination of stockholders entitled to notice
of, and to vote and act at, the Meeting. Only stockholders of record at the close of business on that date are entitled to notice of,
and to vote and act at, the Meeting. The Proxy Statement is first being mailed to stockholders of the Company on or about November 3,
2023.
Proposals
to be Submitted at the Meeting
At
the Meeting, stockholders will be acting upon the following proposals:
| 1. |
To
elect Mr. Robert C. Gray as a Class III director of the Company, to serve for a three-year term that expires at the 2026 Annual Meeting
of Stockholders, or until his successor is elected and qualified or until his earlier death, incapacity, removal or resignation; |
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|
| 2. |
To
ratify the appointment by the Audit Committee of the Company’s Board of Directors of Marcum LLP as the Company’s registered
public accounting firm for the fiscal year ending December 31, 2023; |
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|
| 3. |
To
transact, in the discretion of the Company’s Board, such other business as may properly come before the Meeting or any adjournment
thereof. |
Principal
Offices
The
principal executive offices of the Company are located at 70 Doppler Irvine, California 92618. The Company’s telephone number at
such address is (949) 261-2900.
Information
Concerning Solicitation and Voting
As
of the Record Date, there were 13,316,636 outstanding shares of Common Stock. Each share of Common Stock is entitled to one vote on each
matter to be voted on at the Meeting. Only holders of shares of Voting Stock on the Record Date will be entitled to vote at the Meeting.
The presence in person or by proxy of holders of record of a majority of the Voting Shares outstanding and entitled to vote as of the
Record Date shall be required for a quorum to transact business at the Meeting. If a quorum should not be present, the Meeting may be
adjourned until a quorum is obtained.
For
purposes of Proposal 1, the one (1) candidate receiving the highest number of affirmative votes at the Meeting will be elected as a Class
III director. Only shares that are voted in favor of a particular nominee will be counted toward that nominee’s achievement of
a plurality. Shares present at the Meeting that are not voted for a particular nominee or shares present by proxy where the stockholder
properly withheld authority to vote for such nominee will not be counted toward that nominee’s achievement of a plurality.
For
purposes of Proposal 2, the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which
are present in person or by proxy and entitled to vote thereon is required to ratify Marcum LLP as our independent registered public
accounting firm for the year ending December 31, 2023. Abstentions will have the effect of a vote against this proposal, but since this
is a routine matter, brokers may vote at the Meeting on this proposal provided that they have not received instructions from a beneficial
owner.
Expenses
The
expense of preparing, printing and mailing this Proxy Statement, exhibits and the proxies solicited hereby will be borne by the Company.
In addition to the use of the mails, proxies may be solicited by officers, directors and regular employees of the Company, without additional
remuneration, by personal interviews, telephone, email or facsimile transmission. The Company will also request brokerage firms, nominees,
custodians and fiduciaries to forward proxy materials to the beneficial owners of shares of Common Stock held of record and will provide
reimbursements for the cost of forwarding the material in accordance with customary charges.
Revocability
of proxies
Proxies
given by stockholders of record for use at the Meeting may be revoked at any time prior to the exercise of the powers conferred. In addition
to revocation in any other manner permitted by law, stockholders of record giving a proxy may revoke the proxy by an instrument in writing,
executed by the stockholder or his attorney authorized in writing or, if the stockholder is a corporation, under its corporate seal,
by an officer or attorney thereof duly authorized, and deposited either at the corporate headquarters of the Company at any time up to
and including the last business day preceding the day of the Meeting, or any adjournments thereof, at which the proxy is to be used,
or with the chairman of such Meeting on the day of the Meeting or adjournments thereof, and upon either of such deposits the proxy is
revoked.
ALL
PROXIES RECEIVED WILL BE VOTED IN ACCORDANCE WITH THE CHOICES SPECIFIED ON SUCH PROXIES. PROXIES WILL BE VOTED IN FAVOR OF THE DIRECTOR
NOMINEE AND A PROPOSAL IF NO CONTRARY SPECIFICATION IS MADE. ALL VALID PROXIES OBTAINED WILL BE VOTED AT THE DISCRETION OF THE PERSONS
NAMED IN THE PROXY WITH RESPECT TO ANY OTHER BUSINESS THAT MAY COME BEFORE THE MEETING.
THE
BOARD UNANIMOUSLY RECOMMENDS A VOTE “FOR” THE DIRECTOR NOMINEE AND THE APPROVAL OF EACH OF THE OTHER PROPOSALS TO BE SUBMITTED
AT THE MEETING BY THE BOARD.
PROPOSAL
1
ELECTION
OF CLASS II DIRECTORS
Introduction
The
Board currently consists of three classes of directors, as follows:
| Director(s) |
|
Class |
|
Term
Expires |
| Dr.
Francis Duhay |
|
Class
I |
|
2024 |
| Dr.
Sanjay Shrivastava |
|
Class
I |
|
2024 |
| Matthew
M. Jenusaitis |
|
Class
II |
|
2025 |
| Robert
A. Berman |
|
Class
II |
|
2025 |
| Robert
C. Gray |
|
Class
III |
|
Nominee
in 2023 for term ending 2026 |
At
the Meeting, stockholders will be asked to elect Mr. Robert C. Gray as a Class III director to hold office until the 2026 Annual Meeting
of Stockholders or until his successor is elected and qualified or until his earlier death, incapacity, removal or resignation. The Board
has nominated Mr. Robert C. Gray to stand for election at the Meeting.
The
enclosed proxy, if returned, and unless indicated to the contrary, will be voted for the election of Mr. Robert C. Gray. Proxies cannot
be voted for a greater number of persons than the number of nominees named.
We
have been advised by Mr. Robert C. Gray that he is willing to be named as a nominee and Mr. Robert C. Gray is willing to serve as a director
if elected. If some unexpected occurrence should make necessary, in the discretion of the Board, the substitution of some other person
for the nominee, it is the intention of the persons named in the proxy to vote for the election of such other person as may be designated
by the Board.
Directors
and Executive Officers
Listed
below are the names of the directors and executive officers of the Company, their ages as of the Record Date, their positions held and
the year they commenced service with the Company
| Name |
|
Age |
|
Position(s)
Held |
|
Year
of Service
Commencement |
| Robert
A. Berman |
|
60 |
|
Director,
Chief Executive Officer |
|
2018 |
| Craig
Glynn |
|
62 |
|
Chief
Financial Officer and Treasurer |
|
2020 |
| Dr.
Hamed Alavi |
|
40 |
|
Senior
Vice President and Chief Technology Officer |
|
2023 |
| Dr.
Francis Duhay |
|
63 |
|
Director |
|
2018 |
| Dr.
Sanjay Shrivastava |
|
56 |
|
Director |
|
2018 |
| Matthew
M. Jenusaitis |
|
62 |
|
Director |
|
2019 |
| Robert
C. Gray |
|
76 |
|
Director |
|
2019 |
| Marc
H. Glickman, M.D. |
|
74 |
|
Senior
Vice President and Chief Medical Officer |
|
2016 |
There
are no arrangements between our directors and any other person pursuant to which our directors were nominated or elected for their positions.
There are no family relationships between any of our directors or executive officers.
Robert
A. Berman Robert Berman has served as our Chief Executive Officer and a member of our Board of Directors since April of 2018.
Mr. Berman has over 25 years of experience in a broad variety of areas including healthcare, finance, acquisitions, marketing, compliance,
turnarounds, and the development and licensing of emerging technologies. From September 2012 until July 2017, he served as the President,
Chief Executive Officer, and a member of the Board of Directors of ITUS Corporation (now called Anixa Biosciences), which at the time
he joined the company was a developer of flat panel display technologies, and under his leadership became a Nasdaq listed cancer therapeutics
company. From 2000 to March 2007, Mr. Berman was the Chief Operating Officer and General Counsel of Acacia Research Corporation, where
he successfully transitioned the company from being an incubator of internet startups into a preeminent, publicly traded company for
licensing and enforcing patented technologies with a market cap exceeding $2 billion. Mr. Berman started his career at the law firm of
Blank Rome. Mr. Berman has a B.S. in Entrepreneurial Management from the Wharton School of the University of Pennsylvania and holds a
J.D. from the Northwestern University School of Law, where he is an adjunct faculty member. We believe that Mr. Berman is qualified to
serve as a member of our board of directors because of his experience in a broad variety of areas including healthcare, finance, acquisitions,
marketing, compliance, turnarounds, and the development and licensing of emerging technologies.
Dr.
Francis Duhay has served as member of our board of directors since October 2018. He is an accomplished heart surgeon, entrepreneur,
and corporate executive. Board certified in general (UCSF) and cardiothoracic surgery (Duke), his seminal work in minimally invasive
cardiac surgery led to 32 patents for surgical devices used in thousands of heart operations. Dr Duhay left clinical practice for industry
in 2008, where he served as Vice President and General Manager of the nascent transcatheter heart valve therapy program (Ascendra) at
Edwards Lifesciences (“Edwards”), the world’s leading manufacturer of bioprosthetic heart valves. With European CE
Mark, he oversaw growth in sales of transcatheter heart valves from $3M to over $250M within the first four years of commercial launch.
Promoted to Vice President of Global Medical & Clinical Affairs, he led planning and execution of four US FDA pivotal clinical trials.
He was eventually promoted to Chief Medical Officer, where, in addition to overseeing Global Medical & Clinical Affairs, he supported
other areas within Edwards including Health Economics & Reimbursement in its successful application for a procedure code, payment,
and coverage of transcatheter aortic valve replacement (TAVR), and Regulatory Affairs, as an industry representative and clinical expert
on the ISO 5840:2014 and 5910:2018 cardiac valve working groups. After departing Edwards, he co-founded and led Koa Accel, a major medical
device accelerator in the Orange County, CA, ecosystem. This bore three medical device startups – Makani Science (selected into
the 2021 cohort of the prestigious Y-Combinator), Kino Discovery (selected into the 2021 cohort of MedTech Innovator), and Kahala Biosciences.
Most recently, Dr Duhay served as Senior Vice President of Global Medical & Clinical Affairs for Olympus Corporation, the world’s
leading manufacturer of colonoscopes, duodenoscopes, bronchoscopes, and cystoscopes. We believe that Dr. Duhay is qualified to serve
as a member of our board of directors because he is a trained cardiac and thoracic surgeon and former Chief Medical Officer at Edwards
Life Sciences.
Dr.
Sanjay Shrivastava has served as a member of our board of directors since October 2018. He has been involved in developing, commercializing,
evaluating, and acquiring medical devices for more than 23 years, including serving in leadership positions in research and development,
business development, and marketing at J&J, BTG, plc, Medtronic, Abbott Vascular, and Edwards Life Sciences. He is presently serving
as the chief executive officer at Innova Vascular, Inc., a privately funded medical device company engaged in peripheral venous thrombectomy
space. Prior to this, he co-founded BlackSwan Vascular, Inc., where he served on its board of directors and led a strategic alliance
including the acquisition deal with Sirtex Medical. Sirtex Medical’s parent company acquired BlackSwan Vascular, Inc. in 2023.
Dr. Shrivastava worked on several acquisition and investment deals during his roles as a senior director, business development at J&J
and a vice president, upstream marketing and strategy at BTG, plc, which had an annual revenue of about $800 million and is now part
of Boston Scientific Corporation through an acquisition. At Medtronic, Dr. Shrivastava was the Director of Global Marketing for the Cardiac
and Vascular Group where he helped build the embolization business, from its initiation to a substantial revenue with a very high CAGR
over a period of six years. Dr. Shrivastava was part of the peripheral vascular business at Abbott Vascular and worked on trans-catheter
heart valve repair and replacement products at Edwards Life Sciences. Dr. Shrivastava received his Bachelor of Engineering degree at
the Indian Institute of Technology and a doctorate degree in materials science and engineering from the University of Florida. We believe
that Dr. Shrivastava is qualified to serve as a member of our board of directors because of having served in Chief Executive Officer
and board of director positions at several medical device start-ups, and leadership positions in research and development, business development,
and marketing at Innova Vascular, Inc., BTG, Medtronic, Abbott Vascular, and Edwards Life Sciences.
Matthew
M. Jenusaitis has served as a member of our board of directors since September 2019. He has over 30 years of health care experience
with an emphasis on building and selling companies that develop medical devices to treat vascular diseases. Since March 2015, Mr. Jenusaitis
has been a senior administrative executive at the UC San Diego Health System. He currently serves as the Chief Administrative Officer
for UCSD’s Moore’s Cancer Center and UCSD Oncology. From June 2009 to March 2015, Mr. Jenusaitis was President and CEO of
OCTANe Foundation for Innovation, a non-profit focused on the development of innovation in Orange County, CA. Over the course of his
career, Mr. Jenusaitis has been on the board of directors of Pulsar Vascular (2008-2017), which was sold to Johnson and Johnson, Creagh
Medical (2008-2015), which was sold to SurModics, and Precision Wire Components (2009-2014), which was sold to Creganna Medical. Mr.
Jenusaitis was also a Senior Vice President at ev3 (April 2006 to July 2008), which was sold to Covidian and later purchased by Medtronics.
In addition, Mr. Jenusaitis was the President of the Peripheral Division at Boston Scientific (July 2003 to August 2005) and was an Executive
in Residence at Warburg Pincus (September 2005 to March 2006). Mr. Jenusaitis has an MBA from the University of California, Irvine, a
Masters Degree in Biomedical Engineering from Arizona State University, and a Bachelors Degree in Chemical Engineering from Cornell University.
We believe that Mr. Jenusaitis is qualified to serve as a member of our board of directors because of over 30 years of health care experience
with an emphasis on building and selling companies that develop medical devices to treat vascular diseases and his prior board experiences.
Robert
C. Gray has served as a member of our board of directors since September 2019. He had a 20-year career at Highmark, Inc., one
of America’s largest health insurance organizations, which serves over 20 million subscribers, and includes Highmark Blue Cross
Blue Shield Pennsylvania, Highmark Blue Cross Blue Shield Delaware, and Highmark Blue Cross Blue Shield West Virginia, which he retired
from in 2008. While at Highmark, Mr. Gray helped increase revenues to $12.3 billion from $6.9 billion, and helped generate an operating
gain of $375 million from an operating loss of $91 million. In addition to being the board chairman, Chief Executive Officer, and President
of several of Highmark’s subsidiaries and affiliated companies, Mr. Gray was the Chief Financial Officer of Highmark’s parent
company and was the primary contact to Highmark’s board of directors for Highmark’s audit, investment and compensation (incentive
plans) committees. His many responsibilities at Highmark included rate setting and reimbursement negotiations. Following Highmark, Mr.
Gray co-founded U.S. Holdings LLC (U.S. Implants LLC.), a national distributor of orthopedic implants, and has served as Vice President
since 2009. Since 2011, Mr. Gray has also been self-employed as a strategy and financial consultant. Mr. Gray engaged in Postgraduate
Studies at the University of North Carolina–Chapel Hill and has an undergraduate degree from Bucknell University. We believe that
Mr. Gray is qualified to serve as a member of our board of directors because of his financial and medical reimbursement expertise having
served as the Chief Financial Officer at Highmark, Inc., one of America’s largest health insurance organization.
Marc
H. Glickman, M.D. has served as our Senior Vice President and Chief Medical Officer since May 2016 and served as member of our
board of directors from July 2016 to August 2017. In 1981, Dr. Glickman started a vascular practice in Norfolk, Virginia. He established
the first Vein Center in Virginia and also created a dialysis access center. He was employed by Sentara Health Care as director of Vascular
Services until he retired in 2014. Dr. Glickman is a board certified vascular surgeon. Dr. Glickman received his Doctor of Medicine from
Case Western Reserve, in Cleveland, Ohio and completed his residency at the University of Washington, Seattle. He is board certified
in Vascular Surgery and was the past president of the Vascular Society of the Americas. He has served on the advisory boards of Possis
Medical, Cohesion Technologies, Thoratec, GraftCath, Inc., TVA medical, Austin, Texas.
Craig
Glynn was hired as our interim Chief Financial Officer in April 2020 and has subsequently been elevated to our fulltime Chief
Financial Officer effective January 2021. Mr. Glynn has more than thirty-nine years of experience providing financial services to a variety
of public and private companies, including in the role as Chief Financial Officer. In 2012, Mr. Glynn founded Edward Thomas Associates,
a firm that provides public and private companies with accounting and finance services, including chief financial officer services. Mr.
Glynn has been a Managing Director of Edward Thomas Associates since 2012. Mr. Glynn has a proven record of success managing the financial
aspects of dynamic organizations either as a member of the management team or in a consulting capacity. He started his career as an auditor
with Deloitte and went on to be the CFO and Controller of several technology, manufacturing, and distribution companies. Mr. Glynn earned
his BS and MS degrees in Accounting from California State University Northridge. He is a member of the American Institute of CPAs.
Family
Relationships
There
are no family relationships between or among any of the current directors or executive officers. There are no family relationships among
our officers and directors and those of our subsidiaries and affiliated companies.
Certain
Legal Proceedings
None
of the Company’s directors or executive officers have been involved, in the past ten years and in a manner material to an evaluation
of such director’s or officer’s ability or integrity to serve as a director or executive officer, in any of those “Certain
Legal Proceedings” more fully detailed in Item 401(f) of Regulation S-K, which include but are not limited to, bankruptcies, criminal
convictions and an adjudication finding that an individual violated federal or state securities laws.
Board
Composition
Our
business and affairs are organized under the direction of our board of directors, which currently consists of five members. Our directors
hold office until the earlier of their death, incapacity, removal or resignation, or until their successors have been elected and qualified.
Our board of directors does not have a formal policy on whether the roles of a Chief Executive Officer and Chairman of our board of directors
should be separate. The primary responsibilities of our board of directors are to provide oversight, strategic guidance, counseling and
direction to our management. Our board of directors meets on a regular basis. Our bylaws provide that the authorized number of directors
may be changed only by resolution of the board of directors.
We
have no formal policy regarding board diversity. Our priority in selection of board members is identification of members who will further
the interests of our stockholders through his or her established record of professional accomplishment, the ability to contribute positively
to the collaborative culture among board members, knowledge of our business and understanding of the competitive landscape.
Our
amended and restated certificate of incorporation divides our board of directors into three classes, with staggered three-year terms,
as follows:
Class
I Directors (serving until the 2024 Annual Meeting of Stockholders, or until their earlier death, disability, resignation or removal):
Dr.
Francis Duhay* and Dr. Sanjay Shrivastava*
Class
II Directors (serving until the 2025 Annual Meeting of Stockholders, or until their earlier death, disability, resignation or removal
):
Matthew
M. Jenusaitis*, Robert A. Berman
Class
III Director (serving until the 2023 Annual Meeting of Stockholders, or until his earlier death, disability, resignation or removal):
Robert
C. Gray*
(*)
Independent Director.
At
each annual meeting of stockholders to be held after the initial classification, the successors to directors whose terms then expire
will serve until the third annual meeting following their election and until their successors are duly elected and qualified. The authorized
size of our board of directors is currently five members. The authorized number of directors may be changed only by resolution of the
board of directors. Any additional directorships resulting from an increase in the number of directors will be distributed between the
three classes so that, as nearly as possible, each class will consist of one-third of the directors. This classification of the board
of directors may have the effect of delaying or preventing changes in our control or management. Our directors may be removed for cause
by the affirmative vote of the holders of at least 66 2/3% of our Voting Stock.
Director
Independence
The
Nasdaq Marketplace 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 Marketplace Rules require that, subject to specified exceptions, each member of a listed
company’s audit, compensation and nominating and corporate governance committees be independent and that audit committee members
also satisfy independence criteria set forth in Rule 10A-3 under the Exchange Act.
Under
Rule 5605(a)(2) of the Nasdaq Marketplace Rules, a director will only qualify as an “independent director” if, in the opinion
of our 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 of the Exchange Act,
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.
Our
board of directors has reviewed the composition of our board of directors and its committees and the independence of each 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 Dr. Duhay, Mr. Gray, Mr. Jenusaitis and Dr. Shrivastava is an “independent
director” as defined under Rule 5605(a)(2) of the Nasdaq Marketplace Rules. Our board of directors also determined that Mr. Gray,
Mr. Jenusaitis and Dr. Shrivastava will serve on our audit committee, Mr. Gray and Mr. Jenusaitis and Dr. Shrivastava will serve on our
compensation committee, and Dr. Duhay, Mr. Jenusaitis and Dr. Shrivastava will serve on our nominating and corporate governance committee,
and that each of the committees satisfy the independence standards for such committees established by the SEC and the Nasdaq Marketplace
Rules, as applicable. 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 our board of directors deemed relevant in determining independence,
including the beneficial ownership of our capital stock by each non-employee director.
Meetings
of the Board and Stockholders
Our
board of directors met in person and telephonically five times during 2022 and also acted by unanimous written consent. All of the members
of our board of directors were present during at least 75% of the board of director meetings other than Matthew Jenusaitis who was present
for 60% of the meetings and all of the members of the respective committees of the board of directors were present during at least 75%
of such committee meetings held other than Matthew Jenusaitis who was present for 57% of the committee meetings. There were four Audit
Committee meetings, three Compensation Committee meetings and no Nominating or Corporate Governance meetings held in 2022. Our board
of directors had 100% attendance for the annual meeting that convened on November 30, 2022. It is our policy that all directors must
attend all stockholder meetings, barring extenuating circumstances.
Board
Committees
Our
board of directors has established three standing committees—audit, compensation, and nominating and corporate governance—each
of which operates under a charter that has been approved by our board of directors. Prior to the completion of this offering, copies
of each committee’s charter will be posted on the Investors section of our website, which is located at https://envveno.com/. Each
committee has the composition and responsibilities described below. Our board of directors may from time to time establish other committees.
Audit
Committee
Our
audit committee consists of Mr. Gray, who is the chair of the audit committee, Mr. Jenusaitis and Dr. Shrivastava. Our board of directors
has determined that each of the members of our audit committee satisfies the Nasdaq Marketplace Rules and SEC independence requirements.
The functions of this committee include, among other things:
| |
● |
evaluating
the performance, independence and qualifications of our independent auditors and determining whether to retain our existing independent
auditors or engage new independent auditors; |
| |
● |
reviewing
and approving the engagement of our independent auditors to perform audit services and any permissible non-audit services; |
| |
● |
reviewing
our annual and quarterly financial statements and reports, including the disclosures contained under the caption “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” and discussing the statements and reports with our
independent auditors and management; |
| |
● |
reviewing
with our independent auditors and management significant issues that arise regarding accounting principles and financial statement
presentation and matters concerning the scope, adequacy and effectiveness of our financial controls; |
| |
● |
reviewing
our major financial risk exposures, including the guidelines and policies to govern the process by which risk assessment and risk
management is implemented; and |
| |
● |
reviewing
and evaluating on an annual basis the performance of the audit committee, including compliance of the audit committee with its charter.
|
Our
board of directors has determined that Mr. Gray qualifies as an “audit committee financial expert” within the meaning of
applicable SEC regulations and meets the financial sophistication requirements of the Nasdaq Marketplace Rules. Both our independent
registered public accounting firm and management periodically meet privately with our audit committee.
Compensation
Committee
Our
compensation committee consists of Dr. Shrivastava, who is the chair of the committee, Mr. Gray and Mr. Jenusaitis. Our board of directors
has determined that each of the members of our compensation committee is an outside director, as defined pursuant to Section 162(m) of
the Internal Revenue Code of 1986, as amended, or the Code, and satisfies the Nasdaq Marketplace Rules independence requirements. The
functions of this committee include, among other things:
| |
● |
reviewing,
modifying and approving (or if it deems appropriate, making recommendations to the full board of directors regarding) our overall
compensation strategy and policies; |
| |
● |
reviewing
and approving the compensation, the performance goals and objectives relevant to the compensation, and other terms of employment
of our Chief Executive Officers and our other executive officers; |
| |
● |
reviewing
and approving (or if it deems appropriate, making recommendations to the full board of directors regarding) the equity incentive
plans, compensation plans and similar programs advisable for us, as well as modifying, amending or terminating existing plans and
programs; |
| |
● |
reviewing
and approving the terms of any employment agreements, severance arrangements, change in control protections and any other compensatory
arrangements for our executive officers; |
| |
● |
reviewing
with management and approving our disclosures under the caption “Compensation Discussion and Analysis” in our periodic
reports or proxy statements to be filed with the SEC; and |
| |
● |
preparing
the report that the SEC requires in our annual proxy statement. |
Nominating
and Corporate Governance Committee
Our
nominating and corporate governance committee consists of Dr. Duhay, who is the chair of the committee, Mr. Jenusaitis and Dr. Shrivastava.
Our board of directors has determined that each of the members of this committee satisfies the Nasdaq Marketplace Rules independence
requirements. The functions of this committee include, among other things:
| |
● |
identifying,
reviewing and evaluating candidates to serve on our board of directors consistent with criteria approved by our board of directors; |
| |
● |
evaluating
director performance on our board of directors and applicable committees of our board of directors and determining whether continued
service on our board of directors is appropriate; |
| |
● |
evaluating,
nominating and recommending individuals for membership on our board of directors; and |
| |
● |
evaluating
nominations by stockholders of candidates for election to our board of directors. |
Code
of Conduct
Our
board of directors has adopted a written code of conduct that applies to our directors, officers and employees, including our principal
executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions.
We have posted on our website a current copy of the code and all disclosures that are required by law or Nasdaq Marketplace Rules concerning
any amendments to, or waivers from, any provision of the code.
Board
Leadership Structure
Our
board of directors is free to select the Chairman of the board of directors and a Chief Executive Officer in a manner that it considers
to be in the best interests of our company at the time of selection. Currently, Robert A. Berman serves as our Chief Executive Officer
and we do not currently have a Chairman of our board. Additionally, four of our five members of our board of directors have been deemed
to be “independent” by the board of directors, which we believe provides sufficient independent oversight of our management.
Our board of directors has not designated a lead independent director.
Our
board of directors, as a whole and also at the committee level, plays an active role overseeing the overall management of our risks.
Our Audit Committee reviews risks related to financial and operational items with our management and our independent registered public
accounting firm. Our board of directors is in regular contact with our Chief Executive Officer, who reports directly to our board of
directors and who supervises day-to-day risk management.
Role
of Board in Risk Oversight Process
Our
board of directors believes that risk management is an important part of establishing, updating and executing on our business strategy.
Our board of directors has oversight responsibility relating to risks that could affect the corporate strategy, business objectives,
compliance, operations, and the financial condition and performance of our company. Our board of directors focuses its oversight on the
most significant risks facing us and on our processes to identify, prioritize, assess, manage and mitigate those risks. Our board of
directors receives regular reports from members of our senior management on areas of material risk to us, including strategic, operational,
financial, legal and regulatory risks. While our board of directors has an oversight role, management is principally tasked with direct
responsibility for management and assessment of risks and the implementation of processes and controls to mitigate their effects on us.
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Securities Exchange Act of 1934, as amended, requires that our directors and executive officers and persons who beneficially
own more than 10% of our common stock (referred to herein as the “reporting persons”) file with the SEC various reports as
to their ownership of and activities relating to our common stock. Such reporting persons are required by the SEC regulations to furnish
us with copies of all Section 16(a) reports they file.
Based
solely upon a review of copies of Section 16(a) reports and representations received by us from reporting persons, and without conducting
any independent investigation of our own, in fiscal year 2022 all Forms 3, 4 and 5 were timely filed with the SEC by such reporting persons.
Certain
Relationships and Related Party Transactions
The
following is a description of transactions since January 1, 2021 to which we were a party in which (i) the amount involved exceeded or
will exceed the lesser of (A) $120,000 or (B) one percent of our average total assets at year end for the last two completed fiscal years
and (ii) any of our directors, executive officers or holders of more than 5% of our capital stock, or any member of the immediate family
of, or person sharing the household with, any of the foregoing persons, who had or will have a direct or indirect material interest,
other than equity and other compensation, termination, change in control and other similar arrangements, which are described under “Executive
Compensation.”
Perceptive
Life Sciences Master Fund, Ltd.
Perceptive
Life Sciences Master Fund, Ltd. (“Perceptive”), a holder of greater than 5% of our Common Stock based on the Schedule 13G/A
filed by Perceptive on February 14, 2023, participated as an investor in a financing with the Company pursuant to a purchase agreement
that was executed on October 6, 2023. Pursuant to the purchase agreement, Perceptive purchased pre-funded warrants (the “Pre-Funded
Warrants”) to purchase 861,192 shares of Common Stock, Tranche A Warrants (the “Tranche A Warrants”) to purchase 861,192
shares of Common Stock, and Tranche B Warrants (the “Tranche B Warrants”) to purchase 861,192 shares of Common Stock for
a combined purchase price per Pre-Funded Warrant and accompanying Tranche A Warrant and Tranche B Warrant of $5.8059. The warrants are
immediately exercisable at an exercise price of $6.945 per share for the Tranche A Warrants, $8.334 per share for the Tranche B Warrants,
and a nominal exercise price of $0.0001 per share for the Pre-Funded Warrants. The Tranche A Warrants will expire on the date that is
the earlier of (i) 5:00 p.m. Eastern time on the thirtieth (30th) calendar day following the release by the Company of initial top line
efficacy data including rVCSS data constituting a 3 or more point improvement for the SAVVE clinical trial or (ii) October 11, 2024.
The Tranche B Warrants will expire on the date that is the earlier of (i) 5:00 p.m. Eastern time on the thirtieth (30th) calendar day
following the PMA Approval by the U.S. FDA for the VenoValve or (ii) October 12, 2026. The Pre-Funded Warrants will terminate when they
are exercised in full. The offering closed on October 11, 2023.
Indemnification
of Officers and Directors
Our
amended and restated certificate of incorporation and amended and restated bylaws provide that we will indemnify each of our directors
and officers to the fullest extent permitted by the Delaware General Corporations Law. Further, we entered into indemnification agreements
with each of our directors and officers, and we intend to purchase a policy of directors’ and officers’ liability insurance
that insures our directors and officers against the cost of defense, settlement or payment of a judgment under certain circumstances.
To
the best of our knowledge, during the past two fiscal years, other than as set forth above, there were no material transactions, or series
of similar transactions, or any currently proposed transactions, or series of similar transactions, to which we were or are to be a party,
in which the amount involved exceeds the lesser of (A) $120,000 or (B) one percent of our average total assets at year end for the last
two completed fiscal years, and in which any director or executive officer, or any security holder who is known by us to own of record
or beneficially more than 5% of any class of our common stock, or any member of the immediate family of any of the foregoing persons,
has an interest (other than compensation to our officers and directors in the ordinary course of business).
THE
BOARD RECOMMENDS A VOTE “FOR” THE ELECTION OF
MR. ROBERT C. GRAY TO SERVE AS A CLASS III DIRECTOR ON THE COMPANY’S BOARD, TO HOLD OFFICE UNTIL THE 2026 ANNUAL MEETING OF STOCKHOLDERS
OR UNTIL HIS SUCCESSOR IS ELECTED AND QUALIFIED OR UNTIL HIS EARLIER RESIGNATION OR REMOVAL.
EXECUTIVE
COMPENSATION
The
following table sets forth total compensation paid to our named executive officers for the years ended December 31, 2022 and 2021. Individuals
we refer to as our “named executive officers” include our current Chief Executive Officer, our current Chief Financial Officer
and our other most highly compensated executive officer whose salary and bonus for services rendered in all capacities exceeded $100,000
during the fiscal year ended December 31, 2022.
| Name and Principal Position | |
Year | | |
Salary
($) | | |
Bonus
($) | | |
Option
Awards
($) | | |
Other Equity
Incentive Plan
Compensation
($) | | |
Nonqualified
Deferred
Compensation
Earnings
($) | | |
All Other
Compensation
($) | | |
Total
($) | |
| Robert A. Berman | |
| 2022 | | |
| 450,000 | | |
| - | | |
| - | | |
| - | | |
| | | |
| 16,476 | (10) | |
| 466,476 | |
| Chief Executive Officer | |
| 2021 | | |
| 400,000 | | |
| 250,000 | | |
| 7,674,046 | (1) | |
| 1,340,000 | (6) | |
| | | |
| 15,655 | (11) | |
| 9,679,701 | |
| Craig Glynn | |
| 2022 | | |
| 225,000 | | |
| - | | |
| - | | |
| - | | |
| | | |
| 3,821 | (12) | |
| 228,822 | |
| Chief Financial Officer | |
| 2021 | | |
| 225,000 | | |
| 25,000 | | |
| 2,960,418 | (2) | |
| 335,000 | (7) | |
| | | |
| 651 | (13) | |
| 3,546,069 | |
| Marc H. Glickman, M.D. | |
| 2022 | | |
| 350,000 | | |
| - | | |
| - | | |
| - | | |
| | | |
| 54,973 | (14) | |
| 404,973 | |
| Chief Medical Officer and Senior Vice President | |
| 2021 | | |
| 350,000 | | |
| 50,000 | | |
| 4,247,442 | (3) | |
| 670,000 | (8) | |
| - | | |
| 56,948 | (15) | |
| 5,374,390 | |
| Dr. Hamed Alavi | |
| 2022 | | |
| 240,000 | | |
| - | | |
| 467,032 | (4) | |
| - | | |
| | | |
| 20,966 | (16) | |
| 727,999 | |
| Senior Vice President & Chief Technology Officer | |
| 2021 | | |
| 225,000 | | |
| 40,000 | | |
| 2,932,423 | (5) | |
| 335,000 | (9) | |
| | | |
| 24,679 | (17) | |
| 3,557,102 | |
| (1) |
Represents
the grant date fair value of 838,000 stock options granted on February 18, 2021, and 349,781 stock options granted on November 30,
2021, computed in accordance with FASB ASC Topic 718. The February options vest quarterly over a two-year period and the November
options vest quarterly over a three-year period. |
| |
|
| (2) |
Represents
the grant date fair value of 324,000 stock options granted on February 18, 2021 and 125,925 stock options granted on November 30,
2021, computed in accordance with FASB ASC Topic 718. The options vest quarterly over a three-year periods. |
| |
|
| (3) |
Represents
the grant date fair value of 406,000 stock options granted on February 18, 2021 and 265,700 stock options granted on November 30,
2021, computed in accordance with FASB ASC Topic 718. The February options vest quarterly over a two-year period and the November
options vest quarterly over a three-year period. |
| |
|
| (4) |
Represents
the grant date fair value of 100,000 stock options granted on November 30, 2022, computed in accordance with FASB ASC Topic 718.
The options vest quarterly over a three-year period. |
| |
|
| (5) |
Represents
the grant date fair value of 320,000 stock options granted on February 18, 2021 and 125,925 stock options granted on November 30,
2021, computed in accordance with FASB ASC Topic 718. The options vest quarterly over a three-year periods. |
| (6) |
Represents
the grant date fair value of 200,000 shares of restricted stock units granted on November 30, 2021, computed based on the closing
price of the Company’s stock on the grant date. |
| |
|
| (7) |
Represents
the grant date fair value of 50,000 shares of restricted stock units granted on November 30, 2021, computed based on the closing
price of the Company’s stock on the grant date. |
| |
|
| (8) |
Represents
the grant date fair value of 100,000 shares of restricted stock units granted on November 30, 2021, computed based on the closing
price of the Company’s stock on the grant date. |
| |
|
| (9) |
Represents
the grant date fair value of 50,000 shares of restricted stock units granted on November 30, 2021, computed based on the closing
price of the Company’s stock on the grant date. |
| |
|
| (10) |
Includes
company paid healthcare of $1,226 and 401(k) match of $15,250. |
| |
|
| (11) |
Includes
company paid healthcare of $1,155 and 401(k) match of $14,500. |
| |
|
| (12) |
Includes
company paid healthcare of $1,225 and 401(k) match of $2,596. |
| |
|
| (13) |
Includes
company paid healthcare of $651. |
| |
|
| (14) |
Includes
company paid healthcare of $39,723 and 401(k) match of $15,250. |
| |
|
| (15) |
Includes
company paid healthcare of $42,448 and 401(k) match of $14,500. |
| |
|
| (16) |
Includes
company paid healthcare of $9,211 and 401(k) match of $11,755. |
| |
|
| (17) |
Includes
company paid healthcare of $13,274 and 401(k) match of $11,405. |
Employment
Agreements
We
have entered into various employment agreements with certain of our executive officers. Set forth below is a summary of many of the material
provisions of such agreements, which summaries do not purport to contain all of the material terms and conditions of each such agreement.
For purposes of the following employment agreements:
| |
● |
“Cause”
generally means the executive’s (i) willful misconduct or gross negligence in the performance of his or her duties to us; (ii)
willful failure to perform his or her duties to us or to follow the lawful directives of the Chief Executive Officer (other than
as a result of death or disability); (iii) indictment for, conviction of or pleading of guilty or nolo contendere to, a felony or
any crime involving moral turpitude: (iv) repeated failure to cooperate in any audit or investigation of our business or financial
practices; (v) performance of any material act of theft, embezzlement, fraud, malfeasance, dishonesty or misappropriation of our
property; or (vi) material breach of his or her employment agreement or any other material agreement with us or a material violation
of our code of conduct or other written policy. |
| |
|
|
| |
● |
“Good
reason” generally means, subject to certain notice requirements and cure rights, without the executive’s consent, (i)
material diminution in his or her base salary or annual bonus opportunity; (ii) material diminution in his or her authority or duties
(although a change in title will not constitute “good reason”), other than temporarily while physically or mentally incapacitated,
as required by applicable law; (iii) relocation of his or her primary work location by more than 25 miles from its then current location;
or (iv) a material breach by us of a material term of the employment agreement. |
| |
|
|
| |
● |
“Change
of control” generally means (i) the acquisition, other than from us, by any individual, entity or group (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other than us or any subsidiary, affiliate (within the meaning of Rule
144 promulgated under the Securities Act) or employee benefit plan of ours, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of more than 50% of the combined voting power of our then outstanding voting securities entitled
to vote generally in the election of directors; (ii) a reorganization, merger, consolidation or recapitalization of us, other than
a transaction in which more than 50% of the combined voting power of the outstanding voting securities of the surviving or resulting
entity immediately following such transaction is held by the persons who, immediately prior to the transaction, were the holders
of our voting securities; or (iii) a complete liquidation or dissolution of us, or a sale of all or substantially all of our assets.
|
Robert
A. Berman
On
March 30, 2018, we entered into an employment agreement with Robert A. Berman, our current Chief Executive Officer and director. Pursuant
to the terms of his employment agreement, Mr. Berman’s base salary is $400,000, subject to annual review and adjustment at the
discretion of our compensation committee, and he will be eligible for an annual year-end discretionary bonus of up to 50% of his base
salary, subject to the achievement of key performance indicators, as determined by our compensation committee. The initial term of Mr.
Berman’s employment agreement may be terminated at any time with or without cause and with or without notice or for good reason
thereunder. In November 2021 the board of directors increased Mr. Berman’s base salary to $450,000 for 2022 and $500,000 commencing
in 2023. In connection with his employment, Mr. Berman received an initial equity grant of an option to purchase 43,209 options with
8,642 vesting on the date of his Employment Agreement, March 30, 2018, and the remaining 80% vesting ratably on a monthly basis over
the following 24 months. In February 2021, the board of directors approved an option grant to Mr. Berman to purchase 838,000 shares of
common stock at an exercise price of $8.20 per shares (the closing price of the Company’s common stock on February 18, 2021). The
stock option vests in equal quarterly installments over a two year period. In November 2021, the board of directors approved an option
grant to Mr. Berman to purchase 349,781 shares of common stock at an exercise price of $6.70 per shares (the closing price of the Company’s
common stock on November 30, 2021). The stock option vests in equal quarterly installments over a three year period. Also in November
2021, the board of directors granted Mr. Berman 200,000 restricted stock units. The restricted stock units are subject to milestone-based
vesting as follows: (i) 50% upon SAVVE (Surgical Anti-reflux Venous Valve Endoprosthesis) endpoints being achieved, and (ii) 50% upon
the Pre-Market Approval of the VenoValve. Additionally, the board of directors paid Mr. Berman a cash bonus of $250,000 for 2021.
Mr.
Berman is entitled to participate in our employee benefit, pension and/or profit sharing plans, and we will pay certain health and dental
premiums on his behalf. Mr. Berman’s employment agreement prohibits him from inducing, soliciting or entertaining any of our employees
to leave our employ during the term of the agreement and for 12 months thereafter.
Pursuant
to the terms of his employment agreement, Mr. Berman is entitled to severance in the event of certain terminations of employment. In
the event Mr. Berman’s employment is terminated by us without cause and other than by reason of disability or he resigns for good
reason, subject to his timely executing a release of claims in our favor and in addition to certain other accrued benefits, he is entitled
to receive 6 month of base salary if termination occurred prior to the second anniversary of his employment or 12 months of continued
base salary on and after the second anniversary of his employment (or 24 months if such termination occurs within 24 months following
a change of control).
Craig
Glynn
On
February 19, 2021, the Company entered into an employment agreement with Mr. Glynn, in connection with Mr. Glynn’s elevation to
full time Chief Financial Officer in addition to treasurer and secretary of the Company. Pursuant to the employment agreement, Mr. Glynn
provided for an initial salary of $225,000 per year, subject to annual review and adjustment at the discretion of the Board. In November
2022 the board of directors increased Mr. Glynn’s base salary to $250,000. In February 2021, the board of directors approved an
option grant to Mr. Glynn to purchase 324,000 shares of common stock of the Company at an exercise price of $8.20 per shares (the closing
price of the Company’s common stock on February 18, 2021). The stock options vest in equal quarterly installments over a three
year period with a six month cliff. In November 2021, the board of directors approved an option grant to Mr. Glynn to purchase 125,925
shares of common stock at an exercise price of $6.70 per shares (the closing price of the Company’s common stock on November 30,
2021). The stock option vests in equal quarterly installments over a three year period. Also in November 2021, the board of directors
granted Mr. Glynn 50,000 restricted stock units. The restricted stock units are subject to milestone-based vesting as follows: (i) 50%
upon SAVVE (Surgical Anti-reflux Venous Valve Endoprosthesis) endpoints being achieved, and (ii) 50% upon the Pre-Market Approval of
the VenoValve. Additionally, the board of directors paid Mr. Glynn a cash bonus of $25,000 for 2021. The employment agreement further
provides that Mr. Glynn is entitled to participate in any employee benefit plans that the Company has adopted or may adopt.
Pursuant
to the terms of the employment agreement, Mr. Glynn’s employment agreement is terminable due to Mr. Glynn’s disability or
death, for “Cause” (as defined in the employment agreement) or without “Cause” by the Company, and for “Good
Reason” (as defined in the employment agreement) or voluntarily by Mr. Glynn. In the event of Mr. Glynn’s death or disability,
or termination for “Cause” by the Company or without “Good Reason” by Mr. Glynn, Mr. Glynn (or his estate) is
entitled to receive any unpaid base salary through the termination date, reimbursement for unreimbursed business expenses, accrued but
unused vacation time in accordance with the Company’s policy and any other payments or benefits that Mr. Glynn as entitled to in
accordance with any Company benefit plans (collectively, the “Accrued Benefits”). Upon termination without “Cause”
(other than by reason of death or disability) or resignation for “Good Reason,” Mr. Glynn will be entitled to three months
of severance for each year Mr. Glynn is employed up to one year of severance, in addition to all Accrued Benefits. Any outstanding unvested
securities owned by Mr. Glynn on the termination date will vest (or terminate) in accordance with the terms of such grant.
Marc
H. Glickman, M.D.
On
July 22, 2016, we entered into an employment agreement with Marc H. Glickman, M.D., our Senior Vice President and Chief Medical Officer
(the “Pre-existing Employment Agreement”). Pursuant to the terms of his Pre-existing Employment Agreement, Dr. Glickman’s
base salary is $300,000, subject to annual review and adjustment at the discretion of our board of directors, and he will be eligible
for an annual year-end discretionary bonus of up to 50% of his base salary, subject to the achievement of key performance indicators,
as determined by our board of directors. In connection with his Pre-existing Employment Agreement, Dr. Glickman received an initial equity
grant of an option to purchase up to 7,380 shares of our common stock with 20% of the shares vesting immediately and 80% vesting on a
monthly basis over 24 months thereafter. The initial term of Dr. Glickman’s Pre-existing Employment Agreement ended on December
31, 2018 and was automatically extended for additional three-year terms.
On
July 26, 2019, we entered into an employment agreement with Dr. Glickman (the “New Employment Agreement”) that supersedes
the terms of the Pre-existing Employment Agreement. Pursuant to the terms of the New Employment Agreement, Dr. Glickman’s base
salary is $350,000 per year, subject to annual review and adjustment at the discretion of the Board. In December 2022, the board of directors
increased Mr. Glickman’s base salary to $367,500. In connection with entering into the New Employment Agreement, Dr. Glickman’s
existing seven thousand three hundred and eighty (7,380) options (“Existing Options”) to purchase Company common stock at
two hundred and fifty dollars ($250.00) per share until October 1, 2026, were repriced to fifty dollars ($50.00) per share. Additionally,
Dr. Glickman, in connection to the New Employment Agreement, was granted stock options for the right to purchase seven thousand two hundred
(7,200) common stock at a price equal to two dollars ($50.00) per share exercisable until July 26, 2029, which shall vest quarterly over
a three (3) year period. In February 2021, the board of directors approved an option grant to Dr. Glickman to purchase 406,000 shares
of common stock at an exercise price of $8.20 per shares (the closing price of the Company’s common stock on February 18, 2021).
The stock option vests in equal quarterly installments over a two year period. In November 2021, the board of directors approved an option
grant to Mr. Glickman to purchase 265,700 shares of common stock at an exercise price of $6.70 per shares (the closing price of the Company’s
common stock on November 30, 2021). The stock option vests in equal quarterly installments over a three year period. Also in November
2021, the board of directors granted Mr. Glickman 100,000 restricted stock units. The restricted stock units are subject to milestone-based
vesting as follows: (i) 50% upon SAVVE (Surgical Anti-reflux Venous Valve Endoprosthesis) endpoints being achieved, and (ii) 50% upon
the Pre-Market Approval of the VenoValve. Additionally, the board of directors paid Mr. Glickman a cash bonus of $50,000 for 2021.
Pursuant
to the terms of the New Employment Agreement, Dr. Glickman is an at-will employee and is entitled to severance in the event of certain
terminations of his employment. In the event that Dr. Glickman’s employment is terminated by the Company without Cause (as defined
in the New Employment Agreement), other than by reason of Disability (as defined in the New Employment Agreement), or he resigns for
Good Reason (as defined in the New Employment Agreement), subject to his timely executing a release of claims in favor of the Company
and in addition to certain other accrued benefits, Dr. Glickman is entitled to receive three months of his base salary for each year
that he has been employed by the Company at the time of termination, up to a total of one year of his base salary.
Hamed
Alavi
On
July 29, 2020, we entered into an employment agreement with Dr. Hamed Alavi, our Senior Vice President and Chief Technology Officer (the
“Employment Agreement”). Pursuant to the terms of the Employment Agreement, Mr. Alavi’s base salary was $190,000, subject
to annual review and adjustment at the discretion of our board of directors and he will be eligible for an annual year-end discretionary
bonus of up to 25% of his base salary, subject to the achievement of key performance indicators, as determined by our board of directors.
In November 2021 the board of directors increased Mr. Alavi’s base salary to $240,000 and, in November 2022, the board of directors
increased Mr. Alavi’s annual base salary to $300,000. In February 2021, the board of directors approved an option grant to Mr.
Alavi to purchase 320,000 shares of common stock of the Company at an exercise price of $8.20 per shares (the closing price of the Company’s
common stock on February 18, 2021). The stock options vest in equal quarterly installments over a three year period with a six month
cliff. In November 2021, the board of directors approved an option grant to Mr. Alavi to purchase 125,925 shares of common stock at an
exercise price of $6.70 per shares (the closing price of the Company’s common stock on November 30, 2021). The stock option vests
in equal quarterly installments over a three year period. Also in November 2021, the board of directors granted Mr. Alavi 50,000 restricted
stock units. The restricted stock units are subject to milestone-based vesting as follows: (i) 50% upon SAVVE (Surgical Anti-reflux Venous
Valve Endoprosthesis) endpoints being achieved, and (ii) 50% upon the Pre-Market Approval of the VenoValve. Additionally, the board of
directors paid Mr. Alavi a cash bonus of $40,000 for 2021.The employment agreement further provides that Mr. Alavi is entitled to participate
in any employee benefit plans that the Company has adopted or may adopt.
Pursuant
to the terms of the employment agreement, Mr. Alavi’s employment is terminable due to Mr. Alavi’s disability or death, for
“Cause” (as defined in the employment agreement) or without “Cause” by the Company, and for “Good Reason”
(as defined in the employment agreement) or voluntarily by Mr. Alavi. In the event of Mr. Alavi’s death or disability, or termination
for “Cause” by the Company or without “Good Reason” by Mr. Alavi, Mr. Alavi (or his estate) is entitled to receive
any unpaid base salary through the termination date, reimbursement for unreimbursed business expenses, accrued but unused vacation time
in accordance with the Company’s policy and any other payments or benefits that Mr. Alavi is entitled to in accordance with any
Company benefit plans (collectively, the “Accrued Benefits”). Upon termination without “Cause” (other than by
reason of death or disability) or resignation for “Good Reason,” Mr. Alavi will be entitled to three months of severance
for each year Mr. Alavi is employed up to one year of severance, in addition to all Accrued Benefits. Any outstanding unvested securities
owned by Mr. Alavi on the termination date will vest (or terminate) in accordance with the terms of such grant.
Potential
Payments Upon Termination or Change-in-Control
Pursuant
to the terms of the employment agreements discussed above, we will pay severance in the event of certain terminations of employment.
In the event employment is terminated by us without cause and other than by reason of disability or if the executive resigns for good
reason, subject to his or her timely executing a release of claims in our favor and in addition to certain other accrued benefits, he
or she is entitled to receive severance pursuant to the terms of his or her employment agreements discussed above.
Outstanding
Equity Awards at Fiscal Year-End
The
following table sets forth information regarding equity awards held by our named executive officers as of December 31, 2022.
| Name | |
Number of
securities
underlying
unexercised
options (#)
exercisable | | |
Number of
securities
underlying
unexercised
options (#)
unexercisable | | |
Equity
incentive plan
awards:
Number of
securities
underlying
unexercised
unearned
options (#) | | |
Option
exercise
price
($) | | |
Option expiration date |
| Robert A. Berman, | |
| 43,209 | (1) | |
| - | | |
| N/A | | |
$ | 10.00 | | |
September 23, 2028 |
| Chief Executive Officer | |
| 32,223 | (2) | |
| 7,777 | (2) | |
| | | |
$ | 10.00 | | |
July 18, 2030 |
| | |
| 783,297 | (3) | |
| 54,703 | (3) | |
| | | |
$ | 8.20 | | |
February 18, 2031 |
| | |
| 116,594 | (4) | |
| 233,187 | (4) | |
| | | |
$ | 6.70 | | |
November 30, 2031 |
| | |
| | | |
| | | |
| | | |
| | | |
|
| Marc H. Glickman, M.D. | |
| 7,200 | (5) | |
| - | | |
| N/A | | |
$ | 50.00 | | |
July 25, 2029 |
| Chief Medical Officer and | |
| 7,380 | (5) | |
| - | | |
| N/A | | |
$ | 50.00 | | |
October 1, 2026 |
| Senior Vice President | |
| 32,223 | (2) | |
| 7,777 | (2) | |
| - | | |
$ | 10.00 | | |
July 18, 2030 |
| | |
| 379,497 | (3) | |
| 26,503 | (3) | |
| | | |
$ | 8.20 | | |
February 18, 2031 |
| | |
| 88,567 | (4) | |
| 177,133 | (4) | |
| | | |
$ | 6.70 | | |
November 30, 2031 |
| | |
| | | |
| | | |
| | | |
| | | |
|
| Craig Glynn, | |
| 3,000 | (7) | |
| 1,000 | (7) | |
| N/A | | |
$ | 10.00 | | |
July 18, 2030 |
| Chief Financial Officer (6) | |
| 201,900 | (8) | |
| 122,100 | (8) | |
| | | |
$ | 8.20 | | |
February 18, 2031 |
| | |
| 41,975 | (4) | |
| 83,950 | (4) | |
| | | |
$ | 6.70 | | |
November 30, 2031 |
| | |
| | | |
| | | |
| | | |
| | | |
|
| Dr. Hamed Alavi | |
| 6,000 | (7) | |
| 2,000 | (7) | |
| N/A | | |
$ | 10.00 | | |
July 18, 2030 |
| Senior Vice President and | |
| 120,592 | (8) | |
| 199,408 | (8) | |
| | | |
$ | 8.20 | | |
February 18, 2031 |
| Chief Technology Officer | |
| 41,975 | (4) | |
| 83,950 | (4) | |
| | | |
$ | 6.70 | | |
November 30, 2031 |
| | |
| - | | |
| 100,000 | (9) | |
| | | |
$ | 6.70 | | |
November 30, 2032 |
| |
(1) |
Options
were granted on September 24, 2018, and vested 20% on the date of his Employment Agreement, March 30, 2018, and the remaining 80%
vests ratably on a monthly basis over the 24 months following the date of his Employment Agreement. |
| |
(2) |
Options
were granted on July 18, 2020 and vest ratably on a monthly basis over 36 months. |
| |
(3) |
Options
were granted on February 18, 2021 and vest ratably on a quarterly basis over two years. |
| |
(4) |
Options
were granted on November 30, 2021 and vest ratably on a quarterly basis over three years. |
| |
(5) |
On
July 26, 2019, the Company entered a new employment agreement with Dr. Glickman that superseded the terms of his existing employment
agreement. In connection with entering into the new employment agreement, Dr. Glickman’s existing 7,380 options that were granted
on October 1, 2016 were repriced from $250.00 to $50.00 per share. Additionally, on July 26, 2019, Dr. Glickman was granted 7,200
options at $50.00 per share vesting quarterly over a three-year period. |
| |
(6) |
Mr.
Glynn was elevated to permanent Chief Financial Officer in January 2021. |
| |
(7) |
Options
were granted on July 18, 2020 and vest ratably on a quarterly basis over three years. |
| |
(8) |
Options
were granted on February 18, 2021 and vest ratably on a quarterly basis over three years. |
| |
(9) |
Options
were granted on November 30, 2022 and vest ratably on a quarterly basis over three years. |
| Name | |
Grant Date | |
Number of
unearned
restricted
stock units
that have not
vested | | |
Market
value of
unearned
restricted
stock units
that have not
vested (a) | |
| Robert A. Berman, Chief Executive Officer | |
11/30/2021 | |
| 200,000 | (1) | |
$ | 1,020,000 | |
| | |
| |
| | | |
| | |
| Marc H. Glickman, M.D., Chief Medical Officer and Senior Vice President | |
11/30/2021 | |
| 100,000 | (1) | |
$ | 510,000 | |
| | |
| |
| | | |
| | |
| Craig Glynn, Chief Financial Officer | |
11/30/2021 | |
| 50,000 | (1) | |
$ | 255,000 | |
| | |
| |
| | | |
| | |
| Dr. Hamed Alavi, Senior Vice President and Chief Technology Officer | |
11/30/2021 | |
| 50,000 | (1) | |
$ | 255,000 | |
| |
(a) |
Determined
by multiplying the number of restricted stock units that have not vested by $5.10, the closing price of NVNO’s common stock
on December 30, 2022, the last trading day of 2022. |
| |
|
|
| |
(1) |
On
November 30, 2021, Mr. Berman was granted 200,000 restricted stock units, Dr. Glickman was granted 100,000 restricted stock units,
Mr. Glynn was granted 50,000 restricted stock units and Mr. Alavi was granted 50,000 restricted stock units. The restricted stock
units are subject to milestone-based vesting as follows: (i) 50% upon SAVVE (Surgical Anti-reflux Venous Valve Endoprosthesis) endpoints
being achieved, and (ii) 50% upon the Pre-Market Approval of the VenoValve. |
Employee
Benefit Plans
Amended
and Restated 2016 Omnibus Incentive Plan
On
October 1, 2016, our board of directors and our stockholders adopted and approved the enVVeno Medical Corporation 2016 Omnibus Incentive
Plan, and, subsequently, on April 26, 2018, our board of directors and our stockholders adopted and approved the Amended and Restated
2016 Omnibus Incentive Plan which was subsequently amended by Amendment No. 1 to the Amended and Restated 2016 Omnibus Incentive Plan
following receipt of stockholder approval on December 17, 2020 and by Amendment No. 2 to the Amended and Restated 2016 Omnibus Incentive
Plan following receipt of stockholder approval on November 30, 2021 (as amended, the “2016 Plan”). The principal features
of the 2016 Plan are summarized below. This summary is qualified in its entirety by reference to the text of the 2016 Plan, which is
filed as an exhibit to our Annual Report on Form 10-K.
Share
Reserve
We
currently have reserved 4,500,000 shares of our common stock for issuance under the 2016 Plan, provided, however, if at any time the
Company issues additional shares of Common Stock or securities that are convertible or exercisable into shares of Common Stock (other
than pursuant to the Plan) then the number of shares authorized to be awarded under the Plan shall increase to an amount equal to no
less than 20% of the issued and outstanding shares of common stock of the Company on a fully diluted basis. Such increase, if any, shall
occur automatically upon each applicable issuance of securities by the Company. All shares available for issuance under the Plan may
be granted as incentive stock options under Code Section 422. The shares of common stock issuable under the 2016 Plan will consist of
authorized and unissued shares, treasury shares or shares purchased on the open market or otherwise, all as determined by our company
from time to time.
If
any award is canceled, terminates, expires or lapses for any reason prior to the issuance of shares or if shares are issued under the
2016 Plan and thereafter are forfeited to us, the shares subject to such awards and the forfeited shares will not count against the aggregate
number of shares of common stock available for grant under the 2016 Plan. In addition, the following items will not count against the
aggregate number of shares of common stock available for grant under the 2016 Plan: (1) shares issued under the 2016 Plan repurchased
or surrendered at no more than cost or pursuant to an option exchange program, (2) any award that is settled in cash rather than by issuance
of shares of common stock, (3) shares surrendered or tendered in payment of the option price or purchase price of an award or any taxes
required to be withheld in respect of an award or (4) awards granted in assumption of or in substitution for awards previously granted
by an acquired company.
Administration
The
2016 Plan may be administered by our board of directors or our compensation committee. Our compensation committee, in its discretion,
selects the individuals to whom awards may be granted, the time or times at which such awards are granted and the terms and conditions
of such awards. Our board of directors also has the authority, subject to the terms of the 2016 Plan, to amend existing options (including
to reduce the option’s exercise price), to institute an exchange program by which outstanding options may be surrendered in exchange
for options that may have different exercise prices and terms, restricted stock, and/or cash or other property.
Eligibility
Awards
may be granted under the 2016 Plan to officers, employees, directors, consultants and advisors of us and our affiliates. Incentive stock
options may be granted only to employees of us or our subsidiaries.
Awards
The
2016 Plan permits the granting of any or all of the following types of awards:
| |
● |
Stock
Options. Stock options entitle the holder to purchase a specified number of shares of common stock at a specified price (the
exercise price), subject to the terms and conditions of the stock option grant. Our compensation committee may grant either incentive
stock options, which must comply with Code Section 422, or nonqualified stock options. Our compensation committee sets exercise prices
and terms and conditions, except that stock options must be granted with an exercise price not less than 100% of the fair market
value of our common stock on the date of grant (excluding stock options granted in connection with assuming or substituting stock
options in acquisition transactions). Unless our compensation committee determines otherwise, fair market value means, as of a given
date, the closing price of our common stock. At the time of grant, our compensation committee determines the terms and conditions
of stock options, including the quantity, exercise price, vesting periods, term (which cannot exceed 10 years) and other conditions
on exercise. |
| |
|
|
| |
● |
Stock
Appreciation Rights. Our compensation committee may grant SARs, as a right in tandem with the number of shares underlying stock
options granted under the 2016 Plan or as a freestanding award. Upon exercise, SARs entitle the holder to receive payment per share
in stock or cash, or in a combination of stock and cash, equal to the excess of the share’s fair market value on the date of
exercise over the grant price of the SAR. The grant price of a tandem SAR is equal to the exercise price of the related stock option
and the grant price for a freestanding SAR is determined by our compensation committee in accordance with the procedures described
above for stock options. Exercise of a SAR issued in tandem with a stock option will reduce the number of shares underlying the related
stock option to the extent of the SAR exercised. The term of a freestanding SAR cannot exceed 10 years, and the term of a tandem
SAR cannot exceed the term of the related stock option. |
| |
● |
Restricted
Stock, Restricted Stock Units and Other Stock-Based Awards. Our compensation committee may grant awards of restricted stock,
which are shares of common stock subject to specified restrictions, and restricted stock units, or RSUs, which represent the right
to receive shares of our common stock in the future. These awards may be made subject to repurchase, forfeiture or vesting restrictions
at our compensation committee’s discretion. The restrictions may be based on continuous service with us or the attainment of
specified performance goals, as determined by our compensation committee. Stock units may be paid in stock or cash or a combination
of stock and cash, as determined by our compensation committee. Our compensation committee may also grant other types of equity or
equity-based awards subject to the terms and conditions of the 2016 Plan and any other terms and conditions determined by our compensation
committee. |
| |
|
|
| |
● |
Performance
Awards. Our compensation committee may grant performance awards, which entitle participants to receive a payment from us, the
amount of which is based on the attainment of performance goals established by our compensation committee over a specified award
period. Performance awards may be denominated in shares of common stock or in cash, and may be paid in stock or cash or a combination
of stock and cash, as determined by our compensation committee. Cash-based performance awards include annual incentive awards. |
Clawback
All
cash and equity awards granted under the 2016 plan will be subject to all applicable laws regarding the recovery of erroneously awarded
compensation, any implementing rules and regulations under such laws, any policies we adopted to implement such requirements and any
other compensation recovery policies as we may adopt from time to time.
Change
in Control
Under
the 2016 Plan, in the event of a change in control (as defined in the 2016 Plan), outstanding awards will be treated in accordance with
the applicable transaction agreement. If no treatment is provided for in the transaction agreement, each award holder will be entitled
to receive the same consideration that stockholders receive in the change in control for each share of stock subject to the award holder’s
awards, upon the exercise, payment or transfer of the awards, but the awards will remain subject to the same terms, conditions and performance
criteria applicable to the awards before the change in control, unless otherwise determined by our compensation committee. In connection
with a change in control, outstanding stock options and SARs can be cancelled in exchange for the excess of the per share consideration
paid to stockholders in the transaction, minus the option or SARs exercise price.
Subject
to the terms and conditions of the applicable award agreements, awards granted to non-employee directors will fully vest on an accelerated
basis, and any performance goals will be deemed to be satisfied at target. For awards granted to all other service providers, vesting
of awards will depend on whether the awards are assumed, converted or replaced by the resulting entity.
| |
● |
For
awards that are not assumed, converted or replaced, the awards will vest upon the change in control. For performance awards, the
amount vesting will be based on the greater of (1) achievement of all performance goals at the “target” level or (2)
the actual level of achievement of performance goals as of our fiscal quarter end preceding the change in control, and will be prorated
based on the portion of the performance period that had been completed through the date of the change in control. |
| |
|
|
| |
● |
For
awards that are assumed, converted or replaced by the resulting entity, no automatic vesting will occur upon the change in control.
Instead, the awards, as adjusted in connection with the transaction, will continue to vest in accordance with their terms and conditions.
In addition, the awards will vest if the award recipient has a separation from service within two years after a change in control
by us other than for “cause” or by the award recipient for “good reason” (each as defined in the applicable
award agreement). For performance awards, the amount vesting will be based on the greater of (1) achievement of all performance goals
at the “target” level or (2) the actual level of achievement of performance goals as of our fiscal quarter end preceding
the change in control, and will be prorated based on the portion of the performance period that had been completed through the date
of the separation from service. |
Amendment
and Termination of the 2016 Plan
Unless
earlier terminated by our board of directors, the 2016 Plan will terminate, and no further awards may be granted, 10 years after October
1, 2016, the date on which it was approved by our stockholders. Our board of directors may amend, suspend or terminate the 2016 Plan
at any time, except that, if required by applicable law, regulation or stock exchange rule, stockholder approval will be required for
any amendment. The amendment, suspension or termination of the 2016 Plan or the amendment of an outstanding award generally may not,
without a participant’s consent, materially impair the participant’s rights under an outstanding award.
Limitation
of Liability and Indemnification Matters
Our
amended and restated certificate of incorporation, which became effective upon the completion of our initial public offering, limits
the liability of our directors for monetary damages for breach of their fiduciary duties, except for liability that cannot be eliminated
under the DGCL. Consequently, our directors will not be personally liable for monetary damages for breach of their fiduciary duties as
directors, except liability for any of the following:
| |
● |
any
breach of their duty of loyalty to us or our stockholders; |
| |
● |
acts
or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
| |
● |
unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; or |
| |
● |
any
transaction from which the director derived an improper personal benefit. |
Our
amended and restated bylaws also provide that we will indemnify our directors and executive officers and may indemnify our other officers
and employees and other agents to the fullest extent permitted by law. Our amended and restated bylaws also permit us to secure insurance
on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in this capacity, regardless
of whether our amended and restated bylaws would permit indemnification. We have obtained directors’ and officers’ liability
insurance.
We
have entered into separate indemnification agreements with our directors and executive officers, in addition to indemnification provided
for in our amended and restated bylaws. These agreements, among other things, provide for indemnification of our directors and executive
officers for expenses, judgments, fines and settlement amounts incurred by this person in any action or proceeding arising out of this
person’s services as a director or executive officer or at our request. We believe that these provisions and agreements are necessary
to attract and retain qualified persons as directors and executive officers.
The
above description of the indemnification provisions of our amended and restated bylaws and our indemnification agreements is not complete
and is qualified in its entirety by reference to these documents, each of which is incorporated by reference as an exhibit to the registration
statement to which this prospectus forms a part.
The
limitation of liability and indemnification provisions in our amended and restated certificate of incorporation and amended and restated
bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duties. They may also reduce
the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit us and our
stockholders. A stockholder’s investment may be harmed to the extent we pay the costs of settlement and damage awards against directors
and officers pursuant to these indemnification provisions. Insofar as indemnification for liabilities under the Securities Act may be
permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion
of the SEC such indemnification is against public policy as expressed in the Securities Act and may be unenforceable. There is no pending
litigation or proceeding naming any of our directors or officers as to which indemnification is being sought, nor are we aware of any
pending or threatened litigation that may result in claims for indemnification by any director or officer.
Director
Compensation
The
Board determines the form and amount of director compensation after its review of recommendations made by the Compensation Committee.
A substantial portion of each director’s annual retainer is in the form of equity. Under the Company’s nonemployee director
compensation program members of the Board who are not also Company employees (“Non-Employee Directors”) are granted options
worth up to thirty-seven thousand five hundred dollars ($37,500) per annum (the “Annual Award”). A Non-Employee Director
who is newly appointed to the Board other than in connection with an annual meeting of stockholders will generally receive a grant of
two thousand four hundred (2,400) options and RSUs worth up to seventy-five thousand dollars ($75,000) upon appointment (an “Initial
Award”), which covers their compensation for their first three years of service. The Initial Award and Annual Award to Non-Employee
Directors will vest as long as they remain directors in equal annual portions over three years following the date in which the award
is granted.
The
table below shows the compensation paid to our non-employee directors during 2022 and 2021.
| Name | |
| | |
Fees earned or paid in cash | | |
Stock
awards ($) | | |
Option
awards ($)(3) | | |
Non-equity
incentive
plan
compensation ($) | | |
Nonqualified
deferred
compensation
earnings ($) | | |
All other compensation
($) | | |
Total
($) | |
| Francis Duhay, M.D. | |
| 2022 | | |
$ | 32,500 | | |
| - | | |
$ | 37,500 | (1) | |
| - | | |
| - | | |
| - | | |
$ | 70,000 | |
| | |
| 2021 | | |
$ | 32,500 | | |
| - | | |
$ | 37,500 | (2) | |
| - | | |
| - | | |
| - | | |
$ | 70,000 | |
| Dr. Sanjay Shrivastava | |
| 2022 | | |
$ | 37,500 | | |
| - | | |
$ | 37,500 | (1) | |
| - | | |
| - | | |
| - | | |
$ | 75,000 | |
| | |
| 2021 | | |
$ | 37,500 | | |
| - | | |
$ | 37,500 | (2) | |
| - | | |
| - | | |
| - | | |
$ | 75,000 | |
| Robert Gray | |
| 2022 | | |
$ | 40,000 | | |
| - | | |
$ | 37,500 | (1) | |
| - | | |
| - | | |
| - | | |
$ | 77,500 | |
| | |
| 2021 | | |
$ | 40,000 | | |
| - | | |
$ | 37,500 | (2) | |
| - | | |
| - | | |
| - | | |
$ | 77,500 | |
| Matthew Jenusaitis | |
| 2022 | | |
$ | 37,500 | | |
| - | | |
$ | 37,500 | (1) | |
| - | | |
| - | | |
| - | | |
$ | 75,000 | |
| | |
| 2021 | | |
$ | 37,500 | | |
| - | | |
$ | 37,500 | (2) | |
| - | | |
| - | | |
| - | | |
$ | 75,000 | |
(1)
Under the Company’s nonemployee director compensation program, Dr. Duhay, Dr. Shrivastava, Mr. Gray and Mr. Jenusaitis were each
granted 7,211 options to purchase shares of our common stock on November 30, 2021, as part of their compensation for the year ending
December 31, 2022, at an exercise price of $6.70 per share. The options were valued at $5.20 per share as of the date of the grant. The
grant date value of each grant determined in accordance with FASB ASC Topic 718 was $37,500.
(2)
Under the Company’s nonemployee director compensation program, Dr. Duhay, Dr. Shrivastava, Mr. Gray and Mr. Jenusaitis were each
granted 5,673 options to purchase shares of our common stock on February 18, 2021 at an exercise price of $8.20 per share. The options
were valued at $6.61 per share as of the date of the grant. All of these options vest in equal quarterly portions from the grant date
through December 31, 2021, such that they are fully vested at December 31, 2021, and valued in accordance with FASB ASC Topic 718.
(3)
Under the Company’s nonemployee director compensation program, Dr. Duhay, Dr. Shrivastava, Mr. Gray and Mr. Jenusaitis were each
granted 8,403 options to purchase shares of our common stock on November 30, 2022, as part of their compensation for the year ending
December 31, 2023, at an exercise price of $6.70 per share. The options were valued at $4.46 per share as of the date of the grant and
will vest in equal quarterly portions starting on March 31, 2023 and through December 31, 2023, such that they are fully vested at December
31, 2023. The grant date value of each grant determined in accordance with FASB ASC Topic 718 was $37,500.
AUDIT
COMMITTEE REPORT
The
following Report of the Audit Committee (the “Audit Report”) does not constitute soliciting material and should not be deemed
filed or incorporated by reference into any other Company filing under the Securities Act of 1933 or the Securities Exchange Act of 1934,
except to the extent the Company specifically incorporates this Audit Report by reference therein.
Role
of the Audit Committee
The
Audit Committee’s primary responsibilities fall into three broad categories:
First,
the Audit Committee is charged with monitoring the preparation of quarterly and annual financial reports by the Company’s management,
including discussions with management and the Company’s outside auditors about draft annual financial statements and key accounting
and reporting matters.
Second,
the Audit Committee is responsible for matters concerning the relationship between the Company and its outside auditors, including recommending
their appointment or removal; reviewing the scope of their audit services and related fees, as well as any other services being provided
to the Company; and determining whether the outside auditors are independent (based in part on the annual letter provided to the Company
pursuant to Independence Standards Board Standard No. 1).
Third,
the Audit Committee reviews financial reporting, policies, procedures and internal controls of the Company. The Audit Committee has implemented
procedures to ensure that during the course of each fiscal year it devotes the attention that it deems necessary or appropriate to each
of the matters assigned to it under the Audit Committee’s charter. In overseeing the preparation of the Company’s financial
statements, the Audit Committee met with management and the Company’s outside auditors, including meetings with the Company’s
outside auditors without management present, to review and discuss all financial statements prior to their issuance and to discuss significant
accounting issues. Management advised the Audit Committee that all financial statements were prepared in accordance with generally accepted
accounting principles, and the Audit Committee discussed the statements with both management and the outside auditors. The Audit Committee’s
review included discussion with the outside auditors of matters required to be discussed pursuant to Statement on Auditing Standards
No. 61 (Communication with Audit Committees).
With
respect to the Company’s outside auditors, the Audit Committee, among other things, discussed with Marcum LLP matters relating
to its independence, including the disclosures made to the Audit Committee as required by the Independence Standards Board Standard No.
1 (Independence Discussions with Audit Committees).
Recommendations
of the Audit Committee. In reliance on the reviews and discussions referred to above, the Audit Committee recommended to the Board
that the Board approve the inclusion of the Company’s audited financial statements in the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2022, for filing with the SEC.
| /s/
Robert Gray |
|
| /s/
Matthew Jenusaitis |
|
| /s/
Dr. Sanjay Shrivastava |
|
PROPOSAL
2
RATIFICATION
OF THE APPOINTMENT OF THE
COMPANY’S
REGISTERED PUBLIC ACCOUNTING FIRM FOR FISCAL 2023
The
Audit Committee of the Board appointed the firm of Marcum LLP (“Marcum”) to serve as our registered public accounting
firm for our fiscal year ended December 31, 2023. The independent accountant’s report of Marcum on our consolidated financial statements
for the year ended December 31, 2022 contained no adverse opinion or disclaimer of opinion and was not qualified or modified as to uncertainty,
audit scope or accounting principles. A representative of Marcum is not expected to attend the Meeting.
Audit
Fees. The aggregate fees billed by Marcum for professional services rendered for the audit of our annual financial statements, review
of the financial information included in our Forms 10-Q for the respective periods and other required filings with the SEC for the years
ended December 31, 2022 and 2021 totaled $197,000 and $194,000, respectively. The above amounts include interim procedures, audit fees,
fees related to registration statements filed during those years, and attendance at audit committee meetings.
All
Other Fees. None.
The
Audit Committee of our board of directors has established its pre-approval policies and procedures, pursuant to which the Audit Committee
approved the foregoing audit and non-audit services provided by Marcum in 2022. Consistent with the Audit Committee’s responsibility
for engaging our independent auditors, all audit and permitted non-audit services require pre-approval by the Audit Committee. The full
Audit Committee approves proposed services and fee estimates for these services. The Audit Committee chairperson has been designated
by the Audit Committee to approve any audit-related services arising during the year that were not pre-approved by the Audit Committee.
Any non-audit service must be approved by the full Audit Committee. Services approved by the Audit Committee chairperson are communicated
to the full Audit Committee at its next regular meeting and the Audit Committee reviews services and fees for the fiscal year at each
such meeting. Pursuant to these procedures, the Audit Committee approved the foregoing services provided by Marcum.
Changes
In and Disagreements with Accountants on Accounting and Financial Disclosure. None.
THE
BOARD RECOMMENDS A VOTE “FOR” THE RATIFICATION OF THE AUDIT
COMMITTEE’S
APPROVAL OF THE APPOINTMENT OF MARCUM LLP AS THE
COMPANY’S
REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING
DECEMBER
31, 2023.
PRINCIPAL
STOCKHOLDERS
The
following table sets forth certain information concerning the ownership of our common stock as of the Record Date with respect to: (i)
each person known to us to be the beneficial owner of more than five percent of our common stock; (ii) all directors; (iii) all named
executive officers; and (iv) all directors and executive officers as a group. Beneficial ownership is determined in accordance with the
rules of the SEC that deem shares to be beneficially owned by any person who has voting or investment power with respect to such shares.
Shares of common stock subject to options or warrants that are exercisable as of the date of the Record Date or are exercisable within
60 days of such date are deemed to be outstanding and to be beneficially owned by the person holding such options for the purpose of
calculating the percentage ownership of such person but are not treated as outstanding for the purpose of calculating the percentage
ownership of any other person. Applicable percentage ownership is based on 13,316,636 shares of common stock outstanding as of the Record
Date.
| | |
Beneficial Ownership | |
| Name and Address of Beneficial Owner (1) | |
Number of
Shares | | |
Percentage | |
| 5% Stockholders | |
| | | |
| | |
| Perceptive Life Sciences Master Fund Ltd.(2) | |
| 1,318,346 | | |
| 9.9 | % |
| | |
| | | |
| | |
| Named Executive Officers and Directors | |
| | | |
| | |
| Robert A. Berman (3) | |
| 1,164,632 | | |
| 8.0 | % |
| Marc Glickman, M.D.(4) | |
| 639,313 | | |
| 4.6 | % |
| Hamed Alavi (5) | |
| 404,694 | | |
| 2.9 | % |
| Craig Glynn (6) | |
| 370,850 | | |
| 2.7 | % |
| Francis Duhay, M.D. (7) | |
| 46,498 | | |
| * | |
| Dr. Sanjay Shrivastava (8) | |
| 29,745 | | |
| * | |
| Robert Gray(9) | |
| 32,442 | | |
| * | |
| Matthew Jenusaitis (10) | |
| 31,712 | | |
| * | |
| All directors and executive officers as a group (8 persons) | |
| 2,719,615 | | |
| 17.0 | % |
*
Represents beneficial ownership of less than 1%.
| (1) |
Except
as otherwise noted below, the address for each person or entity listed in the table is c/o enVVeno Medical Corporation, 70 Doppler,
Irvine, California 92618. |
| (2) |
Based
on a Schedule 13G/A filed by the Perceptive Live Sciences Master Fund Ltd. (the “Master Fund”). As of February 14, 2023,
the Master Fund directly holds 781,615 shares of common stock and 1,759,035 pre-funded warrants (see “Certain Relationships
and Related Party Transactions” herein for additional information regarding recent purchases by the Master Fund). The pre-funded
warrants may not be exercised if the Master Fund would beneficially own more than 9.9% of the Company’s outstanding shares
of common stock after giving effect to such exercise. Perceptive Advisors serves as the investment manager to the Master Fund and
may be deemed to beneficially own such shares. Mr. Edelman is the managing member of Perceptive Advisors and may be deemed to beneficially
own such shares. |
| (3) |
Includes
1,154,396 shares of common stock issuable upon exercise of options that are currently exercisable or exercisable within 60
days of October 13, 2023. |
| (4) |
Includes
637,713 shares of common stock that are issuable upon exercise of options that are currently exercisable or exercisable within
60 days of October 13, 2023. |
| (5) |
Includes
404,694 shares of common stock that are issuable upon exercise of options that are currently exercisable or exercisable within
60 days of October 13, 2023. |
| (6) |
Includes
370,850 shares of common stock that are issuable upon exercise of options that are currently exercisable or exercisable within
60 days of October 13, 2023. |
| (7) |
Includes
25,587 shares of common stock that are issuable upon exercise of options that are currently exercisable or exercisable within 60
days of October 13, 2023. |
| (8) |
Includes
25,587 shares of common stock that are issuable upon exercise of options that are currently exercisable or exercisable within 60
days of October 13, 2023. |
| (9) |
Includes
24,787 shares of common stock that are issuable upon exercise of options that are currently exercisable or exercisable within 60
days of October 13, 2023. |
| (10) |
Includes
24,787 shares of common stock that are issuable upon exercise of options that are currently exercisable or exercisable within 60
days of October 13, 2023. |
OTHER
INFORMATION
Proxy
Solicitation
All
costs of solicitation of proxies will be borne by us. In addition to solicitation by mail, our officers and regular employees may solicit
proxies personally or by telephone. We do not intend to utilize a paid solicitation agent.
Proxies
A
stockholder may revoke his, her or its proxy at any time prior to its use by giving written notice to our Chief Financial Officer, by
executing a revised proxy at a later date or by attending and voting at the virtual Meeting. Proxies in the form enclosed, unless previously
revoked, will be voted at the Meeting in accordance with the specifications made thereon or, in the absence of such specifications in
accordance with the recommendations of our Board.
Other
Business
Our
Board knows of no other matter to be presented at the Meeting. If any additional matter should properly come before the Meeting, it is
the intention of the persons named in the enclosed proxy to vote such proxy in accordance with their judgment on any such matters.
Legal
Proceedings
There
are no material proceedings in which any of the Company’s directors, officers or affiliates, or any associate of any such director,
officer, affiliate of the Company, is a party adverse to the Company or any of its subsidiaries or has a material interest adverse to
the Company or any of its subsidiaries.
Future
Stockholders Proposals
The
Board has not yet determined the date on which the next annual meeting of stockholders will be held. Stockholders may submit proposals
on matters appropriate for stockholder action at annual meetings in accordance with the rules and regulations adopted by the Securities
and Exchange Commission. Any proposal which an eligible stockholder desires to have included in our proxy statement and presented at
the next annual meeting of stockholders will be included in our proxy statement and related proxy card if it is received by us a reasonable
time before we begin to print and send our proxy materials and if it complies with Securities and Exchange Commission rules regarding
inclusion of proposals in proxy statements. In order to avoid controversy as to the date on which we receive a proposal, it is suggested
that any stockholder who wishes to submit a proposal submit such proposal by certified mail, return receipt requested.
Other
deadlines apply to the submission of stockholder proposals for the next annual meeting that are not required to be included in our proxy
statement under Securities and Exchange Commission rules. With respect to these stockholder proposals for the next annual meeting, a
stockholder’s notice must be timely. To be timely, a stockholder’s notice shall be delivered to the Chief Financial Officer
at the principal executive offices of the corporation not later than the close of business on the ninetieth (90th) day, nor earlier than
the close of business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting.
The form of proxy distributed by the Board of Directors for such meeting will confer discretionary authority to vote on any such proposal
not received by such date. If any such proposal is received by such date, the proxy statement for the meeting will provide advice on
the nature of the matter and how we intend to exercise our discretion to vote on each such matter if it is presented at that meeting.
Stockholder
Communications
Stockholders
wishing to communicate with the Board may direct such communications to the Board c/o the Company, Attn: Robert A. Berman. Mr. Berman
will present a summary of all stockholder communications to the Board at subsequent Board meetings. The directors will have the opportunity
to review the actual communications at their discretion.
Board
Diversity Matrix
The
following Board Diversity Matrix presents our Board diversity statistics in accordance with Nasdaq Rule 5606, as self-disclosed by our
Directors.
| Board
Diversity Matrix (as of the date hereof) |
| Part
I: Gender Identity |
Male |
Female |
Non-Binary |
Did
Not Disclose Gender |
| Directors
(5 total) |
5 |
|
|
|
Part
II:
Demographic
Background |
Male |
Female |
Non-Binary |
Did
Not Disclose Gender |
| African
American or Black |
|
|
|
|
| Alaskan
Native or American Indian |
|
|
|
|
| Asian |
2
|
|
|
|
| Hispanic,
Latino or Latina |
|
|
|
|
| Native
Hawaiian or Pacific Islander |
|
|
|
|
| White |
3 |
|
|
|
| Two
or More Races or Ethnicities |
|
|
|
|
| LGBTQ+ |
|
| Undisclosed |
|
Householding
of Proxy Materials
The
SEC has adopted rules that permit companies and intermediaries (such as banks and brokers) to satisfy the delivery requirements for notices
of annual meetings, proxy statements and annual reports with respect to two or more stockholders sharing the same address by delivering
a single proxy statement addressed to those stockholders. This process, which is commonly referred to as “householding,”
potentially means extra convenience for stockholders and cost savings for companies. This year, a single notice of the annual meeting
of stockholders, or copy of the proxy statement and annual report, will be delivered to multiple stockholders sharing an address unless
contrary instructions have been received from the affected stockholders. Once you have received notice from your bank or broker that
it will be householding communications to your address, householding will continue until you are notified otherwise or until you revoke
your consent. If, at any time, you no longer wish to participate in householding and would prefer to receive a separate proxy statement
and annual report, please notify your bank or broker, and direct your written request to Craig Glynn, Interim Chief Financial Officer
of the Company, at (949) 261-2900 or at offices of the Company at 70 Doppler Irvine, California 92618. Stockholders who currently receive
multiple copies of the proxy statement at their address and would like to request householding of their communications should contact
their bank or broker.
Additional
Information
We
are subject to the information and reporting requirements of the Securities Exchange Act of 1934, as amended, and in accordance therewith,
we file periodic reports, documents and other information with the SEC relating to our business, financial statements and other matters.
Such reports and other information may be inspected and are available for copying at the offices of the SEC, 100 F Street, N.E., Washington,
D.C. 20549 or may be accessed at www.sec.gov. Information regarding the operation of the public reference rooms may be obtained
by calling the SEC at 1-800-SEC-0330.
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