Item 10. Directors, Executive Officers, and Corporate Governance
Directors
The following table sets
forth certain information regarding the current directors of our company.
Name
|
Age
|
Position
|
Tommy G. Thompson
|
78
|
Chairman of the Board (1)(2)
|
Robert G. Finizio
|
49
|
Chief Executive Officer and Director
|
Paul M. Bisaro
|
59
|
Director(3)
|
J. Martin Carroll
|
70
|
Director (1)(2)
|
Cooper C. Collins
|
41
|
Director (2)(3)
|
Karen L. Ling
|
56
|
Director
|
Jules A. Musing
|
72
|
Director (1)
|
Gail K. Naughton, Ph.D.
|
64
|
Director
|
Angus C. Russell
|
64
|
Director (3)
|
_________________________________________
|
(1)
|
Member of Nominating and Corporate Governance Committee.
|
|
(2)
|
Member of the Compensation Committee.
|
|
(3)
|
Member of the Audit Committee.
|
Tommy G. Thompson
has served as the Chairman of the Board of Directors and a director of our company since May 2012. Mr. Thompson currently
serves as the Chief Executive Officer of Thompson Holdings, a consulting firm. As the Governor of Wisconsin from January 1987 to
February 2001, Secretary Thompson was perhaps best known for his efforts to revitalize the Wisconsin economy, for his national
leadership on welfare reform, and for his work toward expanding health care access across all segments of society. As the former
Secretary of the U.S. Department of Health & Human Services, or HHS, from February 2001 to January 2005, Secretary Thompson
served as the nation’s leading advocate for the health and welfare of all Americans. Secretary Thompson was a partner in
the law firm of Akin Gump Strauss Hauer & Feld LLP, or Akin Gump, from March 2005 to January 2012, when he resigned to run
for the United States Senate. Secretary Thompson served as an Independent Chairman of the Deloitte Center for Health Solutions,
a health care consulting company, from March 2005 to May 2009. At the Deloitte Center for Health Solutions and at Akin Gump,
Secretary Thompson built on his efforts at HHS to work toward developing solutions to the health care challenges facing American
families, businesses, communities, states, and the nation as a whole. Secretary Thompson has also served as the President of Logistics
Health, Inc., a provider of medical readiness and homeland security solutions, from February 2005 to January 2011. Secretary Thompson
has served as a Senior Fellow for the Bipartisan Policy Center, a non-profit organization focused on bipartisan advocacy and policymaking,
since July 2013. Secretary Thompson also serves as a member of the board of directors for the following public companies: Centene
Corporation [NYSE: CNC], United Therapeutics Corporation [NASDAQ: UTHR], Physicians Realty Trust [NYSE: DOC] and Tyme Technologies,
Inc. [NASDAQ: TYMI]. Secretary Thompson also served as a member of the boards of directors of C. R. Bard, Inc. [NYSE: BCR]
from August 2005 to January 2018 and Cytori Therapeutics, Inc. [NASDAQ: CYTX] from April 2011 to May 2016, and has historically
served on the boards of directors of other public companies. We believe Secretary Thompson’s experience in public service
and on the boards of directors of numerous public companies, particularly his services and knowledge related to the health care
industry as a whole, makes him well suited to serve on our Board of Directors. Secretary Thompson received both his B.S. and
J.D. from the University of Wisconsin-Madison.
Robert G. Finizio
has served as Chief Executive Officer and a director of our company since October 2011. As co-founder of VitaMedMD, LLC, or VitaMed,
our wholly owned subsidiary, Mr. Finizio served as its Chief Executive Officer and a director from April 2008 to October 2011.
Mr. Finizio has 19 years of successful early stage company development experience in the health care industry. Mr. Finizio co-founded
and served from August 2001 to February 2008 as President of Care Fusion, LLC and then as Chief Executive Officer of CareFusion, Inc.,
a clinical technology vendor, which was acquired by Cardinal Health, Inc. Mr. Finizio’s early business experience was with
Omnicell, Inc. (formerly known as Omnicell Technologies, Inc.), a provider of pharmaceutical supply chain management systems and
services, and Endoscopy Specialists, Inc. in the health care IT and surgical space. We believe Mr. Finizio’s intimate knowledge
and experience with all aspects of the business, operations, opportunities, and challenges of our company and experience with early
stage company development in the health care industry provide the requisite qualifications, skills, perspectives, and experience
that make him well qualified to serve on our Board of Directors. Mr. Finizio earned a B.A. from the University of Miami.
Paul M. Bisaro has
served as a director of our company since March 2020. He is an accomplished global business leader with more than 25 years of generic
and branded pharmaceutical experience. From May 2018 until August 2019, Mr. Bisaro served as the Executive Chairman of Amneal Pharmaceuticals,
Inc. [NYSE: AMRX]. Prior to that appointment, from May 2017 to May 2018, Mr. Bisaro was President and Chief Executive Officer,
and member of the Board of Directors, of the Impax Laboratories, Inc. [NASDAQ: IPXL], until its acquisition by Amneal Pharmaceuticals.
Prior to joining Impax Laboratories, Mr. Bisaro served as Executive Chairman of Allergan, plc [NYSE: AGN] from July 2014 to November
2016, and as President and CEO of Actavis, plc (and its predecessor firm Watson Pharmaceuticals Inc.) from September 2007 to July
2014. Mr. Bisaro served on the Board of Directors of Allergan (and its predecessor firms) from September 2007 until August 2018.
Previously, he served as President, Chief Operating Officer, and a member of the Board of Directors of Barr Pharmaceuticals, Inc.,
from 1999 to 2007. Between 1992 and 1999, Mr. Bisaro served as General Counsel of Barr, and from 1997 to 1999, served in various
additional executive leadership capacities. Prior to joining Barr, he was associated with the law firm Winston & Strawn and
a predecessor firm, Bishop, Cook, Purcell and Reynolds, from 1989 to 1992. He also served as a Senior Consultant with Arthur Andersen
& Co. Throughout his career, Mr. Bisaro has also been named to various boards of public companies, trade associations, and
educational institutions. Since 2015 he has served as a member of the Board of Directors of Zoetis, Inc. [NYSE: ZTS], a producer
of medicine and vaccinations for pets and livestock. From December 2013 to May 2017, he served on the Board of Directors of Zimmer
Biomet Holdings, Inc. [NYSE: ZBH], a musculoskeletal healthcare company. Mr. Bisaro has also been a member of the Board of Visitors
of the Catholic University of America’s Columbus School of Law since 2014. We believe Mr. Bisaro’s business, management
and leadership experience, his understanding of the pharmaceutical industry, and his public company board experience make him a
valuable member of our Board of Directors. Mr. Bisaro holds an undergraduate degree in General Studies from the University
of Michigan and a Juris Doctor from The Catholic University of America in Washington, D.C.
J. Martin Carroll
has served as a director of our company since March 2015. Mr. Carroll previously served as President and Chief Executive Officer
of Boehringer Ingelheim Corp. (U.S.) from 2003 until 2011. He also served as global head of strategy and development for Boehringer
Ingelheim (Germany) from 2009 through 2012 and served as Chairman of the Board for a number of Boehringer Ingelheim companies.
Previously, Mr. Carroll held positions of increasing responsibility with Merck & Co. Inc. from 1976 to 2001, including manufacturing,
international (Japan) and marketing and sales. He left Merck serving as its Executive Vice President for Customer Marketing and
Sales of the U.S. Human Health Division. From 1972 to 1976, Mr. Carroll served in the United States Air Force. Mr. Carroll has
previously served on the board of directors for a number of organizations, including Accredo Health Group Inc., Vivus Inc. [NASDAQ:
VVUS], Durata Therapeutics Inc. [NASDAQ: DRTX], and Gwynedd Mercy College, as well as PhRMA. He currently serves as a director
of Mallinckrodt PLC [NYSE: MNK] and Catalent, Inc. [NYSE: CTLT] and previously served as a director of Inotek Pharmaceuticals Corporation
[NASDAQ: ITEK] from 2016 until its merger with Rocket Pharmaceuticals, Ltd. in 2018. We believe Mr. Carroll’s extensive experience
as a pharmaceutical industry executive and his experience as a director of other publicly traded pharmaceutical companies provides
the requisite qualifications, skills, perspectives, and experience that make him well qualified to serve on our Board of Directors.
Mr. Carroll received a B.A. in accounting and economics from the College of Holy Cross and a M.B.A. from Babson College.
Cooper C. Collins
has served as a director of our company since February 2012. Mr. Collins has served as Chief Executive Officer of Fortis BioPharma
LLC since June 2015. Mr. Collins served as Chief Strategy Officer of Pernix Therapeutics Holdings, Inc. [NASDAQ: PTX], or Pernix,
from May 2013 until April 2014, as its President and Chief Executive Officer from March 2010 until May 2013, and as a director
from March 2010 until February 2014. Mr. Collins joined Pernix Therapeutics, Inc., a predecessor of Pernix, in 2002, where he was
appointed as a director in January 2007, its President in December 2007 and its Chief Executive Officer in June 2008, serving in
those three capacities until March 2010. From December 2005 to December 2007, Mr. Collins served as Vice President of Business
and Product Development of Pernix Therapeutics, Inc. and as its Territory Manager from December 2003 to December 2005. Mr. Collins
was employed for three years by the National Football League franchise, the New Orleans Saints, in its media relations department.
We believe Mr. Collins’ specialty pharmaceutical company knowledge and executive experience provide the requisite qualifications,
skills, perspectives, and experience that make him well qualified to serve on our Board of Directors. While on a football scholarship,
Mr. Collins received a B.A. from Nicholls State University, where he later received an M.B.A.
Karen L. Ling has
served as a director of our company since April 2020. Ms. Ling has served as Executive Vice President and Chief Human Resources
Officer at American International Group, Inc. [NYSE: AIG] since July 2019. From March 2015 until July 2019, she served as
Executive Vice President and Chief Human Resources Officer at Allergan plc [NYSE: AGN], a global pharmaceutical company. From July
2014 until March 2015, Ms. Ling served as Senior Vice President, Human Resources and Chief Human Resources Officer at Actavis plc,
a global pharmaceutical company, prior to its acquisition of Allergan and name change to Allergan. From January 2014 until July
2014, Ms. Ling was Senior Vice President and Chief Human Resources Officer at Forest Laboratories, a company which was focused
on licensing European pharmaceuticals for sale in the United States, prior to its acquisition by Actavis. Prior to this, from 2011
until January 2014, Ms. Ling was Senior Vice President, Human Resources of the Global Human Health and Consumer Care businesses
worldwide for Merck & Co., Inc. [NYSE: MRK]. She also served as Vice President, Global Compensation and Benefits, at Merck
from November 2009 until 2011. From May 2008 until November 2009, she served as Group Vice President, Global Compensation &
Benefits at Schering-Plough prior to its acquisition by Merck. Prior to joining Schering-Plough, Ms. Ling held various positions
at Wyeth, LLC. Ms. Ling is a member of the board of directors of the JED Foundation and ExpandED Schools, both of which are non-profit
organizations. We believe Ms. Ling’s specialty pharmaceutical company knowledge and executive experience provide the requisite
qualifications, skills, perspectives, and experience that make her well qualified to serve on our Board of Directors. Ms. Ling received a B.A. in Economics from Yale
University and a J.D. from Boston University, and is admitted to practice law in New York and Massachusetts.
Jules A. Musing has
served as a director of our company since May 2013. In the course of Mr. Musing’s 37-year career in the pharmaceutical and
biotechnology industry, specifically at Johnson & Johnson and its affiliates, he has been responsible for the worldwide licensing
and acquisition of pharmaceutical and biotechnology products and technologies and the establishment of strategic alliances. This
included the establishment of new scientific, technology and product collaborations in various therapeutic areas, the negotiation
of licensing and alliance agreements with biotechnology and pharmaceutical companies worldwide, and the partnering, spin-out and
out-licensing of company pharmaceutical and biotechnology assets. Prior to moving into those roles, Mr. Musing was Vice President
Marketing International for the Janssen Pharmaceutical Group of Companies Worldwide from March 1982 to December 1984; President
of Pitman-Moore, Inc., a U.S.-based Johnson & Johnson company from January 1985 to June 1987; Managing Director of Janssen
Pharmaceutical in Portugal from July 1987 to March 1990; President of Serono, Inc. in the United States and Executive Vice
President with responsibilities for North and South America from April 1990 to January 1993; Member of the board of directors of
Ortho Biotech, Inc. from January 1993 to October 1999; and Managing Director of Ortho Biotech in France (a Johnson & Johnson
affiliate) from October 1999 to January 2003. From January 2003 until his retirement in September 2010, Mr. Musing served as Vice
President, Licensing and Acquisitions for the Pharmaceutical Group at Johnson & Johnson, where he was responsible for the worldwide
licensing and acquisition of pharmaceutical and biotechnology products in all therapeutic areas. He has served as a director of
Delphi Digital, Inc. since March 2012 and Chairman of the Scientific Board of Advisors for Noble Capital Financial Markets since
February 2012. We believe Mr. Musing’s extensive experience in the pharmaceutical and biotechnology industry, including the
establishment of numerous strategic and global partnerships and various new product collaborations provide the requisite qualifications,
skills, perspectives, and experience that make him well qualified to serve on our Board of Directors. Mr. Musing received his Master’s
Degree in Biological Sciences from the University of Brussels (Belgium) and his Graduate Degree in Economics and Financial Sciences
from the University of Antwerp (Belgium).
Gail K. Naughton, Ph.D.
has served as a director of our company since March 2020. Dr. Naughton has served as the Chief Scientific Officer and Chief Business
Development Officer of Histogen, a company she founded which is focused on the development of novel solutions based on the products
of cells grown under simulated embryonic conditions, since April 2017. Dr. Naughton served as the Chairman and Chief Executive
Officer of Histogen from June 2007 until April 2017. Prior to Histogen, Dr. Naughton was the Vice Chairman of Advanced Tissue Sciences,
Inc., a human-based tissue engineering company, from March 2002 to October 2002, President from August 2000 to March 2002, President
and Chief Operating Officer from 1995 to 2000 and Executive Vice President, Chief Operating Officer from 1991 to 1995. Dr. Naughton
also served as Dean of the College of Business Administration at San Diego State University from August 2002 to June 2011. She
has spent over 30 years extensively researching the tissue engineering process, holds over 105 U.S. and foreign patents, and has
founded two regenerative medicine companies. Dr. Naughton has brought several tissue engineered products to market including a
product for severe burns (TransCyte), a dermal replacement for diabetic ulcers (Dermagraft), an aesthetic dermal filler (Cosmederm/Cosmeplast),
and SkinMedica’s TNS product for skin care. Dr. Naughton has been extensively published and a frequent speaker in the field
of tissue engineering. In 2000, Dr. Naughton received the 27th Annual National Inventor of the Year award by the Intellectual Property
Owners Association in honor of her pioneering work in the field of tissue engineering. Dr. Naughton has been a member of several
public company boards of directors since 1988, including Cytori Therapeutics, Inc. [NASDAQ: CYTX] from July 2014 until January
2018 and C.R. Bard, Inc. [NYSE: BCR] from 2004 until December 2017. We believe Dr. Naughton’s extensive executive experience,
her in-depth knowledge of the healthcare industry and regenerative medicine technology, her experience developing FDA-approved
products, and her service on other public company boards and committees, provide the requisite qualifications, skills, perspectives,
and experience that make her well qualified to serve on our Board of Directors. Dr. Naughton received her B.S. in Biology from
St. Francis College, her M.S. in Histology and her Ph.D. in Hematology from the New York University Medical Center and her E.M.B.A.
from UCLA.
Angus C. Russell has
served as a director of our company since March 2015. Mr. Russell previously served as Chief Executive Officer of Shire PLC from
June 2008 until April 2013. Mr. Russell served as the Chief Financial Officer of Shire from 1999 to 2008 and also served as Executive
Vice President of global finance. Prior to joining Shire, Mr. Russell served at ICI, Zeneca and AstraZeneca PLC for 19 years, most
recently in the role of Vice President, Corporate Finance at AstraZeneca. Mr. Russell also serves as a director of Mallinckrodt
PLC [NYSE: MNK], having served as the chairman of the board of Mallinckrodt since May 2018, Lineage Cell Therapeutics, Inc. [NYSE:
LCTX] and Revance Therapeutics Inc. [NASDAQ: RVNC], where he serves as the chairman of the board. Mr. Russell previously served
as a director of Shire PLC [NASDAQ: SHPG], Questcor Pharmaceuticals Inc. [NASDAQ: QCOR] and InterMune Inc. [NASDAQ: ITMN]. We believe
Mr. Russell’s extensive experience as a pharmaceutical industry executive and his experience as a director of other publicly
traded pharmaceutical companies provides the requisite qualifications, skills, perspectives, and experience that make him well
qualified to serve on our Board of Directors. Mr. Russell holds an honorary Doctor of Business Administration from Coventry University,
U.K.
Executive Officers
The following table sets
forth certain information regarding our current executive officers:
Name
|
Age
|
Position
|
Robert G. Finizio
|
49
|
Chief Executive Officer and Director
|
John C.K. Milligan, IV
|
57
|
President and Secretary
|
Daniel A. Cartwright
|
62
|
Chief Financial Officer and Treasurer
|
Mitchell L. Krassan
|
54
|
Chief Strategy & Performance Officer
|
Michael Donegan
|
52
|
Vice President – Finance
|
Listed below are biographical
descriptions of our executive officers. For Mr. Finizio’s information, see the description under “Election of Directors”
above.
John C.K. Milligan,
IV has served as President and Secretary of our company since October 2011 and served as a director of our company from
October 2011 to March 2020. From December 2008 to October 2011, Mr. Milligan served as President and director of VitaMed. Prior
to VitaMed, Mr. Milligan co-founded CareFusion, LLC, serving as President and General Manager from August 2001 to February 2008,
and then as President and Chief Operating Officer of CareFusion, Inc. From 1997 to 2001, Mr. Milligan was Vice President,
Sales and Operations for Omnicell, Inc. Prior to Omnicell, Mr. Milligan also held executive management positions at Serving Software
Inc. and HBO & Co., a health care information systems company, both of which were subsequently acquired by McKesson Corporation.
Mr. Milligan is a graduate of the U.S. Naval Academy.
Daniel A. Cartwright
has served as Chief Financial Officer and Treasurer of our company since October 2011 and served as Vice President of Finance from
October 2011 to April 2013. From July 2011 to October 2011, Mr. Cartwright served as Chief Financial Officer of VitaMed. From May
1996 to July 2011, Mr. Cartwright served as Chief Financial Officer and Executive Vice President of Circle F Ventures, LLC, an
Arizona venture capital firm that made investments in more than 50 companies. During the same period, Mr. Cartwright served as
Chief Financial Officer and Treasurer of Fleming Securities, formerly a registered broker dealer involved with raising capital
for public and private companies. From 1993 to 1996, Mr. Cartwright served as Chief Financial Officer of American Wireless Systems,
Inc., a provider of entertainment video services. Mr. Cartwright currently serves as a member of the board of directors of Primetrica,
Inc., a private information research company for the telecommunications industry, and formerly served on the board of directors
of Antenna Technologies Company, Inc. and WEB Corp. Mr. Cartwright earned his B.S. in Accounting from Arizona State University.
Mitchell L. Krassan
has served as Chief Strategy & Performance Officer of our company since October 2011. From April 2010 to October 2011, Mr.
Krassan served as Chief Strategy and Performance Officer of VitaMed. From September 2010 to June 2011, Mr. Krassan serves as our
Chief Financial Officer. Mr. Krassan was a partner with EquiMark Limited, a private investment partnership, from 1997 to 2010.
From November 1994 to July 1997, Mr. Krassan served as Chief Financial Officer and Chief Operating Officer of The Reich Group/Telespectrum
Worldwide, a fully integrated direct marketing firm that provided clients expertise in market research and analysis, strategic
planning, marketing, creative, and production services, telemarketing and database development. Mr. Krassan earned a B.S. in Accounting
from the University of Maryland, received his certification as a CPA in the state of Maryland, and earned his M.B.A. in Management
from New York University.
Michael Donegan
has served as Vice President – Finance of our company since April 2013. Mr. Donegan has a 29-year background in accounting
and finance. From August 2012 to April 2013, Mr. Donegan served as an independent consultant exclusively for our company, where
he conceptualized, designed and executed our Sarbanes-Oxley 404 compliance program. From August 2007 to August 2012, Mr. Donegan
served as an independent consultant designing and implementing Sarbanes-Oxley 404 compliance programs for various non-accelerated
filers and executed on pre-designed Sarbanes-Oxley 404 compliance programs for certain large accelerated filers. From January 2005
to August 2007, Mr. Donegan served as an independent consultant exclusively for Tyco International, where he enhanced and executed
the Sarbanes-Oxley 404 compliance model with their corporate headquarters group. From November 2001 to December 2004, Mr. Donegan
was Manager of Financial Systems at Tyco International at its global headquarters. From 1994 to 2001, Mr. Donegan held various
positions in the global consolidation/SEC reporting group at Sensormatic Electronics Corporation culminating with the acquisition
of Sensormatic Electronics Corporation by Tyco International in the fall of 2001 when he was the Manager of Financial Systems.
Mr. Donegan began his career at Ernst & Young, LLP where he worked in both the audit and tax departments. Mr. Donegan earned
his B.S. in Accounting and his Master of Accounting from the University of Florida.
Non-Executive Officers
The following table sets
forth certain information regarding our current significant employees who are not executive officers:
Name
|
|
Age
|
|
Position
|
Brian Bernick, M.D.
|
|
51
|
|
Co-Founder
|
Dawn Halkuff
|
|
49
|
|
Chief Commercial Officer
|
John Knighton
|
|
42
|
|
Chief Compliance Officer
|
Adam Miller
|
|
38
|
|
Chief Information Officer
|
Dr. Sebastian Mirkin
|
|
48
|
|
Chief Medical Officer
|
Marlan Walker
|
|
45
|
|
General Counsel
|
Bharat Warrier
|
|
42
|
|
Chief Manufacturing Officer
|
Listed below are biographical
descriptions of such non-executive officers.
Dr. Brian Bernick
has served as co-founder of our company since October 2011 and co-founder and director of vitaMedMD, from April 2008 to October
2011. Dr. Bernick served as a director of our company from October 2011 until March 2020. Dr. Bernick previously served as our
Chief Clinical Officer from November 2013 to May 2018 and as our Chief Medical Officer from February 2012 until November 2013.
Dr. Bernick is a board-certified obstetrician/gynecologist with over 25 years of clinical medical experience. Dr. Bernick was the
Department Chair of Obstetrics and Gynecology at Boca Raton Regional Hospital and served on that hospital’s Medical Executive
Board as well as the Board of Directors of the Palm Beach Medical Society and VitalMD Group Holding, LLC, one of the largest physician-owned
and physician-managed medical groups in Florida. Dr. Bernick has served on the American College of Obstetricians and Gynecologists’
(ACOG) national committee on Professional Liability. Dr. Bernick is the recipient of several national and regional awards, including
recognition by his peers as one of the top doctor’s in his specialty by Castle Connolly as well as the recipient of the American
Medical Association Foundation’s Leadership Award. Dr. Bernick has over 100 peer-reviewed publications and presentations
of original research at medical conferences. Dr. Bernick is responsible for numerous U.S. and foreign patents focusing on drug
therapies and analysis. Dr. Bernick is an affiliate associate professor of obstetrics and gynecology at Florida Atlantic University
College of Medicine. Dr. Bernick holds a B.A. in Economics from Northwestern University, received his Doctorate in Medicine from
the Chicago Medical School, and completed his residency at the University of Pennsylvania.
Dawn Halkuff has
served as the Chief Commercial Officer of our company since October 2016. Prior to that, Ms. Halkuff held numerous senior level
positions over 20 years of commercial and marketing experience. Ms. Halkuff was previously at Pfizer, Inc. [NYSE: PFE], where she
held various leadership roles in women’s health from 2010 to 2016. Most recently, Ms. Halkuff was Senior Vice President of
the Pfizer Consumer Healthcare Wellness Organization and a member of the Consumer Global Leadership Team. Prior to that, Ms. Halkuff
was the commercial lead for sales and marketing of the Pfizer Women’s Health Division, focusing on the company’s reinvestment
in hormone therapy treatment, including Premarin Vaginal Cream® and oral hot flash treatments. From 2005 to 2010, Ms. Halkuff
was Head of Global Innovation at Weight Watchers International [NYSE: WTW], where she created new weight-loss products, services,
and solutions for women worldwide. Ms. Halkuff currently serves as a member of the board of directors of Society of Women’s
Health Research and Xeris Pharmaceuticals, Inc. [NASDAQ: XERS]. Ms. Halkuff holds a B.A. in Psychology from University of Connecticut
and an M.B.A. from Pennsylvania State University.
John Knighton joined
TherapeuticsMD as Chief Compliance Officer in March 2018. Mr. Knighton directly reports to the General Counsel and also reports
in specific instances to the Chief Executive Officer and the Chair of the Audit Committee of our Board of Directors. Mr. Knighton
previously served as Head of Global Compliance at Orexigen Therapeutics from 2016 to 2018 and as Chief Compliance Officer at MicroPort
Orthopedics from 2014 to 2016. From 2010 to 2013, Mr. Knighton served in senior compliance roles of increasing responsibility at
Wright Medical Technology, holding the titles of Director of Compliance; Sr. Director of Compliance Operations and Interim Chief
Compliance Officer. From 2007 to 2010, Mr. Knighton served as Director at King Pharmaceuticals (2007-2010). Earlier in his career,
Mr. Knighton served in Life Science Legal and Compliance positions at Solvay Pharmaceuticals and as a Consultant on the Life Science
Compliance team at Ernst and Young, LLP. Mr. Knighton has designed and implemented multiple compliance programs in complex situations
and has also conducted a number of business development diligence, audit and investigation projects related to complex matters
facing global life science companies. Mr. Knighton received his BS in Accountancy from Villanova University and his Doctor of Law
from Emory University School of Law. He is a member of the State Bar of Georgia.
Adam Miller has
served as our Chief Information Officer since March 2018. Mr. Miller has more than 16 years of experience in the information technology
field, including more than 13 years specifically in healthcare IT. Prior to becoming CIO, Mr. Miller served as Vice President of
Information Technology at TherapeuticsMD and has led our information technology department since May 2011. Mr. Miller has been
responsible for all aspects of IT including governance and planning, IT solutions management and development, infrastructure, security,
and operations. Before joining TherapeuticsMD, Mr. Miller was a consultant for Quilogy, a healthcare-focused Microsoft Gold Partner
consulting firm. While at Quilogy, Mr. Miller spent time on projects for Kindred Healthcare, the University of Kentucky, and Microsoft
filling various roles in project management, development, business analysis, administration, and training. Mr. Miller has also
held various IT-related roles with Healthcare Recoveries, Louisville Gas & Electric, and Brown-Forman. Mr. Miller holds a B.S.B.A.
in Computer Information Systems with a Concentration in Information Security from the University of Louisville’s College
of Business. He is also an active member in the South Florida information technology community.
Dr. Sebastian Mirkin
has served as the Chief Medical Officer of our company since November 2013. Dr. Mirkin has more than 20 years of experience and
leadership in clinical development and medical affairs in women’s health in global pharmaceutical companies. From October
2009 to November 2013, Dr. Sebastian was Clinical Lead and Global Clinical Lead of Women’s Health, Clinical Research at Pfizer.
From October 2005 to October 2009, he was Director and Senior Director, Clinical Research, Women’s Health at Wyeth, and from
October 2004 to October 2005 he was Global Lead Medical Services, Women’s Health at Organon. Dr. Mirkin oversaw the development
and successful marketing authorization of several novel medicines in the United States, Europe, and Japan. Dr. Mirkin holds a Doctor
in Medicine degree from National University, Argentina. Trained in Obstetrics/Gynecology, Dr. Mirkin completed his fellowship in
Reproductive Medicine at The Jones Institute of Reproductive Medicine in Norfolk, Virginia.
Marlan Walker has
served as our General Counsel since March 2016. Mr. Walker previously also served as Chief Development Officer from April 2018
to December 2019 and as our Corporate and Intellectual Property Counsel from June 2013 until he became our General Counsel. Mr.
Walker’s experience is focused in management of legal issues and risk in the life science industries across a variety of
disciplines. His legal practice prior to his time at TherapeuticsMD included long-term portfolio strategy and management, patent
preparation and prosecution, contract negotiation and drafting, life-cycle management, and Hatch-Waxman. After law school, he took
a position at Greenberg Traurig, LLP in August 2005. In March of 2009, he moved to Luce Forward Hamilton & Scripps. Mr. Walker
accepted an in-house position as Intellectual Property Counsel for Medicis Pharmaceutical Corp. in June 2011, which was acquired
by Valeant Pharmaceutical International, Inc. in December 2012. In February 2013, Mr. Walker accepted a position at Kilpatrick
Townsend & Stockton, but chose to move in-house again in June 2013, when he accepted a position at our company. Mr. Walker
graduated from Arizona State University’s Sandra Day O’Conner College of Law with his J.D. in 2004, and an LL.M. in
Intellectual Property Law at The George Washington University Law School in 2005. He holds a Master’s Degree in Molecular
Biology and a B.S. degree, both earned from Brigham Young University.
Bharat Warrier has
served as our Chief Manufacturing Officer since December 2018. Mr. Warrier previously served as our Vice President of Manufacturing
and Product Development from January 2017 to December 2018, our Senior Director of Manufacturing and Product Development from January
2016 to January 2017 and our Director of Technical Operations from December 2014 to January 2016. He has been the functional lead
on several FDA submissions while also spearheading the scale-up and commercial manufacturing of products--both in-house and at
contract manufacturing facilities. Prior to joining TherapeuticsMD, Mr. Warrier held positions at Valeant Pharmaceuticals, Medicis
Pharmaceuticals, Novartis Consumer Health, and Morton Grove Pharmaceuticals. He has more than 15 years of pharmaceutical experience
in the areas of manufacturing, technical services, formulation, and process development. Mr. Warrier earned a Bachelor of Pharmacy
degree from Sri Ramachandra University, India, an M.S. degree in Pharmaceutical Sciences from the University of Missouri - Kansas
City, and a Master’s Certificate in Regulatory Affairs and Quality Assurance from Purdue University.
CORPORATE GOVERNANCE
Director Independence
Since October 9, 2017,
our common stock has been listed on the Nasdaq Global Select Market of the Nasdaq Stock Market LLC, or Nasdaq, under the symbol
“TXMD.” From April 23, 2013 to October 6, 2017, our common stock was listed on the NYSE American under the symbol “TXMD.”
Under the rules of Nasdaq, independent directors must comprise a majority of a listed company’s board of directors.
Our Board of Directors
has affirmatively determined, after considering all the relevant facts and circumstances, that each of Dr. Naughton, Ms. Ling and
Messrs. Thompson, Bisaro, Carroll, Collins, Musing and Russell, is an independent director, that Mr. Nicholas Segal was an independent
director prior to his resignation in March 2020, and that Jane F. Barlow, M.D., M.B.A, M.P.H. and Robert V. LaPenta, Jr. were independent
directors prior to their resignations in April 2020, as “independence” is defined under the applicable rules and regulations
of the SEC and the listing standards of Nasdaq, and does not have a relationship with us (either directly or as a partner, stockholder,
or officer of an organization that has a relationship with us) that would interfere with their exercise of independent judgment
in carrying out their responsibilities as directors. Accordingly, a majority of our directors are independent, as required under
the applicable Nasdaq rules. Mr. Finizio, our Chief Executive Officer, is not considered an independent director because of his
executive position with our company. Likewise, Messrs. Milligan and Bernick were not considered independent directors prior to
their resignations in March 2020 because of their executive position and other employment relationship, respectively, with our
company. There are no family relationships among any of our directors or officers.
Committee Charters, Corporate Governance,
and Code of Ethics
Our Board of Directors
has adopted charters for the Audit, Compensation, and Nominating and Corporate Governance Committees describing the authority and
responsibilities delegated to each committee by our Board of Directors. Our Board of Directors has also adopted Corporate Governance
Guidelines, a Code of Conduct and Ethics, and a Code of Ethics for the Chief Executive Officer and senior financial officers of our company,
including our Chief Financial Officer and principal accounting officer. We post on our website, at www.therapeuticsmd.com,
the charters of our Audit, Compensation, and Nominating and Corporate Governance Committees; our Corporate Governance Guidelines,
Code of Conduct and Ethics, and Code of Ethics for the Chief Executive Officer and senior financial officers, and any amendments
or waivers thereto; and any other corporate governance materials contemplated by the SEC or Nasdaq. These documents are also available
in print to any stockholder requesting a copy in writing from our corporate secretary at our executive offices set forth in this
Form 10-K/A.
Executive Sessions
We regularly schedule executive
sessions in which non-employee directors will meet without the presence or participation of management, with at least one of such
sessions including only independent directors. Mr. Thompson, as the Chairman of our Board of Directors, chairs the executive sessions.
Board Committees
Our Board of Directors
has an Audit Committee, a Compensation Committee, and a Nominating and Corporate Governance Committee, each consisting entirely
of independent directors.
Audit Committee
The purpose of the Audit
Committee is to oversee our financial and reporting processes and the audits of our financial statements and to provide assistance
to our Board of Directors with respect to its oversight of the integrity of our financial statements, our company’s compliance
with legal and regulatory matters, the independent registered public accountant’s qualifications and independence, and the
performance of our independent registered public accountant. The primary responsibilities of the Audit Committee are set forth
in its charter and include various matters with respect to the oversight of our accounting and financial reporting process and
audits of our financial statements on behalf of our Board of Directors. The Audit Committee also selects the independent registered
public accountant to conduct the annual audit of our financial statements; reviews the proposed scope of such audit; reviews accounting
and financial controls with the independent registered public accountant and our financial accounting staff; and reviews and approves
any transactions between us and our directors, officers, and their affiliates.
The Audit Committee currently
consists of Messrs. Bisaro, Collins and Russell, each an independent director of our company under the listing standards of Nasdaq
as well as under applicable rules and regulations of the SEC. Mr. LaPenta, Jr. served as the Chairman of the Audit Committee in
2019 prior to his resignation from our Board of Directors in April 2020 and was an independent director of our company under the
listing standards of Nasdaq as well as under applicable rules and regulations of the SEC. Mr. Russell has served as Chairman of
the Audit Committee since April 2020. Our Board of Directors has determined that Messrs. Bisaro and Russell (each of whose background
is detailed above) each qualify as an “audit committee financial expert”, and that Mr. LaPenta, Jr. qualified as an
“audit committee financial expert”, in accordance with applicable rules and regulations of the SEC.
Compensation Committee
The purpose of the Compensation
Committee includes, among other things, determining, or recommending to our Board of Directors for determination, the compensation
of our Chief Executive Officer, other executive officers and directors, discharging the responsibilities of our Board of Directors
relating to our compensation programs and producing an annual compensation committee report on executive compensation for inclusion
in this Form 10-K/A. Pursuant to its charter, the Compensation Committee may delegate any of its responsibilities to a subcommittee
comprised of one or more members of the Compensation Committee. The Compensation Committee currently consists of Messrs. Collins,
Thompson, and Carroll, with Mr. Collins serving as Chairman, each an independent director of our company under the listing standards
of Nasdaq as well as under applicable rules and regulations of the SEC. Dr. Barlow served as a member of the Compensation Committee
in 2019 until her resignation from our Board of Directors in April 2020, and was an independent director of our company under the
listing standards of Nasdaq as well as under applicable rules and regulations of the SEC.
Nominating and Corporate Governance Committee
The purpose of the Nominating
and Corporate Governance Committee includes the selection or recommendation to our Board of Directors of nominees to stand for
election as directors at each election of directors, the oversight of the selection and composition of committees of our Board
of Directors, the oversight of the evaluations of our Board of Directors and management, and the development and recommendation
to our Board of Directors of a set of Corporate Governance Guidelines applicable to us.
Our Nominating and Corporate
Governance Committee will consider persons recommended by stockholders for inclusion as nominees for election to our Board of Directors
if the information required by the rules adopted by the SEC is submitted in writing in a timely manner addressed and delivered
to our corporate secretary at the address of our executive offices set forth in this Form 10-K/A. Our bylaws, as amended, require
that, subject to certain exceptions, a stockholder provide information regarding a director nomination to us no earlier than the
120th day and no later than the 90th day prior to the first anniversary of the preceding year’s annual
meeting of stockholders and update and supplement such information.
The Nominating and Corporate
Governance Committee identifies and evaluates nominees for our Board of Directors, including nominees recommended by stockholders,
based on numerous factors it considers appropriate, some of which may include strength of character, mature judgment, career specialization,
relevant technical skills, diversity, and the extent to which the nominee would fill a present need on our Board of Directors.
The members of the Nominating
and Corporate Governance Committee are Messrs. Thompson, Musing and Carroll, each an independent director of our company under
the listing standards of Nasdaq as well as under applicable rules and regulations of the SEC. Mr. Thompson serves as Chairman.
Mr. LaPenta, Jr. served as a member of the Nominating and Corporate Governance Committee in 2019 until his resignation from our
Board of Directors in April 2020, and was an independent director of our company under the listing standards of Nasdaq as well
as under applicable rules and regulations of the SEC.
Board’s Role in Risk Oversight
Risk is inherent in every
business. As is the case in virtually all businesses, we face a number of risks, including operational, economic, financial, legal,
regulatory, and competitive risks. Our management is responsible for the day-to-day management of the risks we face. Our Board
of Directors, as a whole and through its committees, has responsibility for the oversight of risk management.
Our Board of Directors’
involvement in our business strategy and strategic plans plays a key role in its oversight of risk management, its assessment of
management’s risk appetite, and its determination of the appropriate level of enterprise risk. Our Board of Directors receives
updates at least quarterly from senior management and periodically from outside advisors regarding the various risks we face, including
operational, economic, financial, legal, regulatory, and competitive risks. Our Board of Directors also reviews the various risks
we identify in our filings with the SEC as well as risks relating to various specific developments, such as debt and equity issuances
and product introductions.
The committees of our Board
of Directors assist our Board of Directors in fulfilling its oversight role in certain areas of risks. Pursuant to its charter,
the Audit Committee oversees the financial and reporting processes of our company and the audit of the financial statements of
our company and provides assistance to our Board of Directors with respect to the oversight and integrity of the financial statements
of our company, our company’s compliance with legal and regulatory matters, the independent auditor’s qualification
and independence, and the performance of our independent auditor. The Audit Committee also receives reports from our Chief Compliance
Officer regarding our compliance program and our Chief Information Officer regarding our cybersecurity and information technology
programs. The Compensation Committee considers the risks that our compensation policies and practices may have in attracting, retaining,
and motivating valued employees and endeavors to assure that it is not reasonably likely that our compensation plans and policies
would have a material adverse effect on our company. Our Nominating and Corporate Governance Committee oversees governance-related
risks, such as director independence, conflicts of interests, and management succession planning. In addition, our Chief Compliance
Officer reports in specific instances to the Chair of the Audit Committee. This division of responsibilities is the most effective
approach for addressing the risks facing the company, and the company’s Board leadership structure supports this approach.
Board Diversity
We seek diversity in experience,
viewpoint, education, skill, and other individual qualities and attributes to be represented on our Board of Directors. We believe
directors should have various qualifications, including individual character and integrity; business experience and leadership
ability; strategic planning skills, ability, and experience; requisite knowledge of our industry and finance, accounting, and legal
matters; communications and interpersonal skills; and the ability and willingness to devote time to our company. We also believe
the skill sets, backgrounds, and qualifications of our directors, taken as a whole, should provide a significant mix of diversity
in personal and professional experience, background, viewpoints, perspectives, knowledge, and abilities. Nominees are not to be
discriminated against on the basis of race, religion, national origin, sex, sexual orientation, disability, or any other basis
prohibited by law. The assessment of directors is made in the context of the perceived needs of our Board of Directors from time
to time.
All of our directors have
held high-level positions in business or professional service firms and have experience in dealing with complex issues. We believe
that all of our directors are individuals of high character and integrity, are able to work well with others, and have committed
to devote sufficient time to the business and affairs of our company. In addition to these attributes, the description of each director’s background sets forth
above indicates the specific experience, qualifications, and skills necessary to conclude that each individual should continue
to serve as a director of our company.
Board Leadership Structure
We believe that effective
board leadership structure depends on the experience, skills, and personal interaction among persons in leadership roles as well
as the needs of our company at any point in time. We currently maintain separate roles between the Chief Executive Officer and
Chairman of the Board of Directors in recognition of the differences between the two responsibilities. Our Chief Executive Officer
is responsible for setting our strategic direction and day-to-day leadership and performance of our company. The Chairman of the
Board of Directors provides input to the Chief Executive Officer, sets the agenda for board meetings, and presides over meetings
of the full Board of Directors as well as executive sessions of our Board of Directors. Our Board of Directors believes that our
current leadership structure provides the most effective leadership model for our company, as it promotes balance between the Board
of Directors’ independent authority to oversee our business and the Chief Executive Officer and his management team, which
manage the business on a day-to-day basis.
Compensation Recovery Policy
Currently, we have not
implemented a policy regarding retroactive adjustments to any cash or stock-based incentive compensation paid to our executive
officers and other employees where the payments were predicated upon the achievement of financial results that were subsequently
the subject of a financial restatement. We intend to adopt a general compensation recovery, or clawback, policy covering our annual
and long-term incentive award plans and arrangements after the SEC adopts final rules implementing the requirement of Section 954
of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act. Our 2019 Stock Incentive Plan,
or the 2019 Plan, provides that awards granted under the 2019 Plan are subject to clawback if we are required to prepare an accounting
restatement due to material noncompliance as a result of misconduct with any financial reporting requirement under the federal
securities laws and the forfeiture provisions of the Sarbanes-Oxley Act of 2002.
Anti-Hedging and Anti-Pledging Policy
In April 2020, the Board
of Directors amended the company’s Code of Conduct and Ethics to include a policy regarding hedging and pledging transactions.
Pursuant to the policy, directors, officers, and employees are prohibited from: (1) directly or indirectly engaging in any hedging
transactions with respect to any directly or indirectly owned securities of the company, which includes the purchase of any financial
instrument (including puts, calls, equity swaps, forward contracts, collars , exchange funds or other derivative securities) on
an exchange or in any other market in order to hedge or offset any decrease in the market value of such securities; (2) engaging
in short sale transactions or forward sale transactions or any short-term or speculative transactions in the company’s securities
or in other transactions in the company’s securities that may lead to inadvertent violations of insider trading laws; and
(3) pledging securities of the company as collateral for a loan or otherwise using securities of the company to secure a debt,
including through the use of traditional margin accounts with a broker.
Board and Committee Meetings
Our Board of Directors
held a total of five meetings during the fiscal year ended December 31, 2019. No director attended fewer than 75% of the aggregate
of (i) the total number of meetings of our Board of Directors and (ii) the total number of meetings held by all committees of our
Board of Directors on which such director was a member.
During the fiscal year
ended December 31, 2019, the Audit Committee held six formal meetings; the Compensation Committee held four meetings; and the Nominating
and Corporate Governance Committee held two meetings.
Annual Meeting Attendance
We encourage our directors
to attend each annual meeting of stockholders. All of our directors attended the annual meeting of stockholders last year.
Communications with Directors
Stockholders may communicate
with our Board of Directors or specific members of our Board of Directors, including our independent directors and the members
of our various board committees, by submitting a letter addressed to our Board of Directors of TherapeuticsMD, Inc. at the address
set forth in this Form 10-K/A c/o any specified individual director or directors. Any such letters are forwarded to the indicated
directors. In addition, at the request of the Board of Directors, communications that do not directly relate to our Board of Directors’
duties and responsibilities as directors will be excluded from distribution. Such excluded items include, among others, “spam,” advertisements,
mass mailings, form letters, and email campaigns that involve unduly large numbers of similar communications; solicitations for
goods, services, employment or contributions; and surveys. Additionally, communications that appear to be unduly hostile, intimidating,
threatening, illegal or similarly inappropriate will also be screened for omission. Any excluded communication will be made available
to any director upon his or her request.
Item 11. Executive Compensation
COMPENSATION DISCUSSION AND ANALYSIS
Background
Our Board of Directors
has appointed a Compensation Committee, consisting of independent members of our Board of Directors, to review and approve corporate
goals and objectives relevant to the compensation of our Chief Executive Officer, or CEO, evaluate the performance of our CEO on
achieving those goals and objectives, and determine or recommend to our Board of Directors the compensation of our CEO based in
this evaluation. The Compensation Committee also recommends to our Board of Directors, or as directed by our Board of Directors,
determines and approves, the compensation of our other executive officers. The Compensation Committee makes every effort to ensure
our executive compensation program is consistent with our values and is aligned with our business strategy and corporate goals.
For 2019, our named executive
officers, or NEOs, were:
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Robert G. Finizio – Chief Executive Officer
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John C.K. Milligan, IV – President and Secretary
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Daniel A. Cartwright – Chief Financial Officer and Treasurer
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Mitchell L. Krassan – Chief Strategy & Performance Officer
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Michael Donegan – Vice President – Finance
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Each of the NEOs’ pay outcomes are discussed
below in the context of our executive pay philosophy and the achievement of key goals and objectives.
Executive Pay Philosophy
We maintain a pay for performance
philosophy driven by a pay mix emphasizing variable and performance-based pay tied to corporate performance results and our stock
price. We believe this philosophy supports our company’s business strategy of developing and commercializing innovative new
products targeted exclusively for women to the benefit of our company’s current stockholders and future customers.
The three core elements
of our executive compensation program each serve a different purpose:
Core Element
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Purpose
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Salary
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We set salaries at a level designed to attract and retain the key executives needed to drive our business forward.
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Annual Incentive Compensation
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Annual incentive compensation is designed to motivate our executives to achieve our annual drug development and commercialization goals and objectives.
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Stock-Based Awards
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Stock-based awards, which have historically taken the form of stock options and now take the form of restricted stock, restricted stock units and performance stock units, are designed to align our executive and stockholder interests by providing the opportunity for our executives to earn rewards based on the creation of stockholder value through increases in our share price as driven by the success of our business strategies over time.
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We discuss below our performance
outcomes and related compensation decisions for 2019.
Executive Summary
2019 Performance
After the U.S. Food and
Drug Administration, or FDA, approval in 2018 of our products IMVEXXY®, BIJUVA®, and ANNOVERA® and the expansion of
our commercial operations, 2019 marked the first full year in which we transitioned the primary focus of our corporate performance
goals and objectives to a balance of growth- and earnings-related financial metrics with strategic milestones. The Compensation
Committee established the following major goals and objectives for 2019:
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Product Net Revenue of $27 million to $33 million (25%);
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EBITDA of at least $(188 million) (25%);
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Launch BIJUVA in the second quarter of 2019 (10%);
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Soft launch ANNOVERA in the second half of 2019 (10%);
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Out-license international rights for IMVEXXY and BIJUVA by the end of 2019 (10%);
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Prenatal vitamin sales of at least $8 million (10%); and
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Improvement of the company’s exclusivity positions (10%).
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Based on our company’s
achievements in relation to our corporate goals set at the beginning of 2019, our Compensation Committee and our Board of Directors
determined that we achieved 100% of our goals and objectives for 2019.
2019 Pay Decisions
During 2019, we continued
to maintain a disciplined executive compensation program, which included the following:
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No Salary Increases: Maintained NEO salaries at 2018 levels (which were kept constant with 2017 levels).
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Target Annual Incentives: No changes in annual incentive target levels.
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Annual Incentive Payout: Paid annual incentives at 100% of target to our NEOs for the achievement of our target 2019 financial metric and strategic-milestone-based objectives.
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Equity Awards: Made annual equity awards to our NEOs in the form of stock options at levels below market competitive levels, including a nominal stock option grant of one option to our CEO.
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The Compensation Committee
will continue to monitor our executive compensation program and consider further changes as our business continues to evolve in
the future, including the continued focus on more financial metrics in our annual incentive plan as we expand our commercial operations.
The Compensation Committee anticipates the annual incentive plan transition will take place over the next several years as we move
through a process of fully commercializing each of our approved pharmaceutical products.
Results of Say-on-Pay Vote
Since we conducted our
first stockholder advisory vote on the compensation of our NEOs (commonly referred to as a “say-on-pay” vote) in August
2013, we have had overwhelming support from our stockholders, achieving more than 90% support in each of the six annual votes from
2013 through 2019.
Consequently, the Compensation
Committee and our Board of Directors has not made significant changes to our executive compensation program, or their decision-making
process, in recent years as a result of the stockholder say-on-pay vote. However, as noted, the Compensation Committee has taken
steps to refocus our executive compensation incentive programs to be more financially oriented as we complete the transition from
a drug development company to a company undertaking the commercialization of its FDA-approved pharmaceutical products.
Role of the Compensation Committee and Chief
Executive Officer
The Compensation Committee
determines, or recommends to our Board of Directors for determination, the compensation of our CEO and our other executive officers.
At least annually, the Compensation Committee evaluates the performance of our CEO and determines, or recommends to our Board of
Directors for determination, the compensation for our CEO in the context of the accomplishment of the goals and objectives of our
executive compensation program for the year. The Compensation Committee and our Board of Directors, together with our CEO, annually
assess the performance of our other NEOs. Based on the determinations of the Compensation Committee and our Board of Directors
after receiving recommendations from our CEO, when applicable, the Compensation Committee and our Board of Directors
determine the compensation for our other NEOs. The Compensation Committee may also receive input from independent compensation
consultants that it may engage from time to time.
At the request of the Compensation
Committee, our CEO generally attends a portion of some of our Compensation Committee meetings. This enables the Compensation Committee
to review the corporate and individual goals the CEO regards as important to achieve our overall success. The Compensation Committee
also requests the CEO to assess the performance against the goals and objectives for our other NEOs. The Compensation Committee
makes all decisions regarding individual and corporate goals and objectives. Our CEO does not attend any portion of meetings at
which his own compensation is determined.
Compensation Surveys and Compensation Consultants
The Compensation Committee
periodically reviews compensation data representative of similar companies to determine appropriate compensation levels the Compensation
Committee believes will enable us to attract executives from other companies and to retain and motivate our executives. The Compensation
Committee uses peer group information and broader life sciences industry survey data as frames of reference but does not specifically
benchmark or target our compensation levels against any desired targeted level of competitiveness.
From time to time, we retain
the services of independent compensation consultants to review a wide variety of factors relevant to executive compensation, trends
in executive compensation, and the identification of relevant peer companies. When engaged by the Compensation Committee, our compensation
consultants report directly to the Compensation Committee and the Compensation Committee makes all determinations regarding the
engagement, fees, and services of our compensation consultants.
During 2019, the Compensation
Committee retained PayGovernance LLC, or PayGovernance, to provide executive compensation services to the Compensation Committee,
primarily for compensation decisions related to 2019. PayGovernance analyzed and proposed changes to our company’s peer group,
provided information with respect to market competitive pay levels for executives and outside directors and assisted the Compensation
Committee with the refocus of our executive compensation program discussed above in the Executive Summary.
In accordance with the
requirements of applicable SEC rules and the listing standards of Nasdaq, the Compensation Committee has reviewed the independence
of PayGovernance and has determined that PayGovernance meets the independence criteria established under such rules and listing
standards.
Compensation Elements
Salary
We set salaries at a level
sufficient to attract and retain our NEOs in the context of our executives’ opportunity to receive significant incentive
compensation if they can achieve pre-determined performance goals and objectives. Salaries for NEOs are established based on an
executive’s position, responsibilities, skills, and experience. In determining salaries, we account for individual performance
and contributions, future potential, competitive salary levels for comparable positions at other companies, salary levels relative
to other positions within our company, and corporate needs. The evaluation of the Compensation Committee and our Board of Directors
of the foregoing factors is subjective, and the Compensation Committee and our Board of Directors do not assign a particular weight
to any factor.
Annual Incentive Compensation
Annual incentive compensation
reflects our pay-for-performance philosophy. We generally adhere to the following process in determining annual incentive compensation:
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Our Board of Directors approves our annual operating plan, which forms the basis for the corporate performance measures and individual performance goals and objectives for our annual performance-based incentive compensation.
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The Compensation Committee reviews and sets the framework for the annual performance-based incentive compensation for the year, including:
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Confirming the plan participants;
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Establishing a target annual incentive opportunity for each participating NEO; and
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Reviewing the corporate performance measures and individual performance objectives for the fiscal year.
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We may establish objective
performance criteria when setting performance goals for the incentive compensation program for a particular year or may use subjective
factors, or a combination of these factors. These performance criteria may include a wide range of factors, including:
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Reaching sales goals for our FDA-approved products;
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Increasing cash flows, earnings from operations or other financial metrics;
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Licensing agreements; and
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Pre-natal vitamins sales.
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The performance criteria
may vary on a year-to-year and executive-by-executive basis depending on the goals then deemed important for our company and the
executive officer and may be established for all or a portion of a year or for multiple years. We attempt to set each of our performance
goals at a level that can be realistically achieved but is challenging and consistent with achieving the desired corporate goal.
In establishing performance goals, the Compensation Committee and our Board of Directors also may take into consideration prevailing
as well as expected future economic conditions affecting our company’s business and industry. As noted above, we anticipate
the annual incentive plan performance goals and objectives will continue to transition toward sales goals and increasing cash flow
and earnings as we continue the process of commercializing our FDA-approved pharmaceutical products.
Stock-Based Awards
We strongly believe in
using our common stock to tie executive rewards directly to our long-term success and increases in stockholder value. Grants of
stock-based awards to our NEOs enable them to benefit from a significant position in our common stock. We have no ongoing policy
for allocating among different types of stock-based awards and maintain the flexibility to grant each type of stock-based award.
Among other factors, the amount and type of stock-based awards granted to our NEOs account for awards previously granted and the
equity held by each individual NEO. While we have the flexibility to grant each type of stock award, we traditionally used stock
options during the development stage of our products, but have transitioned to predominantly using a combination of time-based
and performance-based restricted stock units beginning with the grants for our 2020 fiscal year.
Stock based compensation
typically vests over multiple years to encourage executive retention and emphasize long-term performance and may also include specific
performance metrics to be earned. Our Board of Directors typically ratifies Compensation Committee grants of stock-based awards
at regularly scheduled Board of Directors meetings after reviewing allocations recommended and approved by the Compensation Committee
following advice from the Compensation Committee’s compensation consultants, an analysis of peer companies, specific goals
to be achieved, and a wide range of other factors.
Other Benefits
NEOs are eligible to participate
in benefit programs available to all full-time employees. These programs include medical insurance, a qualified retirement program
allowed under Section 401(k) of the Internal Revenue Code, as amended, or the Code, and life insurance coverage.
Policies for the Pricing and Timing of Stock-Based
Grants
Our Board of Directors
sets the price of all stock-based awards at the closing price of our stock on the date of grant on Nasdaq. Our Board of Directors
typically ratifies Compensation Committee grants of stock-based compensation at regularly scheduled meetings each year.
Employment Agreements
Each of our NEOs is a party
to an employment agreement with us, which provides for salaries, annual short-term cash-based incentive compensation, and stock
option grants. The employment agreements for each of Messrs. Finizio, Milligan and Cartwright provide for benefits in the event
of certain changes in control of our company. These arrangements have no effect on our ongoing compensation arrangements absent
a change in control or other executive termination event. See “Executive Compensation — Employment Agreements.”
Fiscal 2019 Compensation
Use of Market Data
In determining the compensation
of our NEOs, we consider compensation levels of executives at similar companies and other competitive factors to enable us to attract
executives from other companies and retain and motivate our executives. We periodically review compensation levels of a peer group
of companies and consider broader life sciences industry pay survey data. We use peer group and other information as a point of
reference, but do not benchmark or target our compensation levels to specific competitive positioning against our peer group or
other competitive datapoints. In 2018, the Compensation Committee engaged PayGovernance to prepare a study of the executive officer
compensation practices of a group of peer companies.
For 2019 pay change considerations,
in late 2018 PayGovernance developed a group of 21 similarly situated life science companies with, at that time, a median market
capitalization of $1.6 billion and median number of employees of 241. This 2019 peer group was used by the Compensation Committee
and our Board of Directors when establishing our 2019 executive compensation program for our NEOs, along with information from
the Radford Global Life Sciences Survey. The 2019 Peer Group consisted of the following companies:
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● Acorda
Therapeutics, Inc.
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Aerie Pharmaceuticals, Inc.
● AMAG
Pharmaceuticals, Inc.
● Amarin
Corporation plc
● Arena
Pharmaceuticals, Inc.
● Array
BioPharma, Inc.
● Blueprint
Medicines Corporation
● Corcept
Therapeutics Inc.
● Deciphera
Pharmaceuticals, Inc.
● Dynavax
Technologies Corporation
● Epizyme,
Inc.
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● Halozyme
Therapeutics, Inc.
● ImmunoGen,
Inc.
● Ironwood
Pharmaceuticals, Inc.
● Karyopharm
Therapeutics, Inc.
● Lexicon
Pharmaceuticals, Inc.
● MacroGenics,
Inc.
● Omeros
Corporation
● Spark
Therapeutics, Inc.
● Supernus
Pharmaceuticals, Inc.
● Theravance
Biopharma, Inc.
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The 2019 peer group was
based on the following criteria:
Industry: Companies competing
in the biotech and pharmaceutical industries.
Phase of Development: Mix
of commercial and late-stage clinical (product candidates in either phase 2 or phase 3) pre-commercial companies with multiple
products
Market Capitalization: Companies
with a market capitalization between $650 million and $4.7 billion, with a median market capitalization of $1.6 billion, compared
to our then-current market capitalization of $1.5 billion (market capitalization was evaluated as of August 31, 2018).
Number of Employees: Companies
with between 131 and 762 employees, with a median number of employees of 241, compared to our then-current 173 employees.
The 2019 peer group development
process started by eliminating six companies from the 2018 peer group primarily due to their market capitalization being outside
our desired range:
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Four had market capitalizations below the low end of our range (Achillion Pharmaceuticals, Inc., Agenus, Inc., Assertio Therapeutics (fka Depomed), Inc. and Cytokinetics, Inc.)
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Two had market capitalizations above the high end of our range (Nektar Therapeutics and Sarepta Therapeutics, Inc.)
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We added the following
seven companies, all of which met the majority of our criteria as set forth above:
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● Aerie
Pharmaceuticals, Inc.
● Arena
Pharmaceuticals, Inc.
● Blueprint
Medicines Corporation
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● Deciphera
Pharmaceuticals, Inc.
● Epizyme,
Inc.
● ImmunoGen,
Inc.
● Karyopharm
Therapeutics, Inc.
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Salary
Our NEOs received salaries
for 2019 in accordance with their respective 2019 compensation plans as recommended by the Compensation Committee and approved
by our Board of Directors. As is our practice, we set salaries for our NEOs at the beginning of the year as follows:
Executive Officer
|
|
Annualized
Fiscal
2018 Salary
|
|
|
Annualized
Fiscal
2019 Salary
|
|
|
% Increase
|
|
Robert G. Finizio
|
|
$
|
600,000
|
|
|
$
|
600,000
|
|
|
|
0
|
%
|
John C.K. Milligan, IV
|
|
$
|
450,000
|
|
|
$
|
450,000
|
|
|
|
0
|
%
|
Daniel A. Cartwright
|
|
$
|
375,000
|
|
|
$
|
375,000
|
|
|
|
0
|
%
|
Mitchell L. Krassan
|
|
$
|
360,000
|
|
|
$
|
360,000
|
|
|
|
0
|
%
|
Michael Donegan
|
|
$
|
290,000
|
|
|
$
|
290,000
|
|
|
|
0
|
%
|
During 2019, salaries of
all NEOs remained the same as 2018 and 2017 salaries.
Annual Performance-Based Incentive Plan
We use annual performance-based
incentive compensation to motivate our NEOs to achieve our annual objectives as set forth in our annual operating plan, while
making progress towards and supporting our longer-term strategic goals. In addition, the Compensation Committee and our Board
of Directors establish individual performance objectives for each of our NEOs. The payment of annual incentives is based upon
the achievement of one or more corporate and individual performance objectives.
Target Annual Incentive Opportunities
The Compensation Committee
and our Board of Directors determined the target annual incentive opportunities for each of our NEOs for fiscal 2019 should be
a percentage of each NEO’s salary. The target annual incentive opportunity established for each NEO for fiscal 2019 was as
follows and all were identical to the target annual incentive opportunities for 2018:
Executive Officer
|
|
Annualized Fiscal
2019 Salary
|
|
|
Target Annual Incentive Opportunity (as a percentage of salary)
|
|
|
Annualized Target Annual Incentive Opportunity
(as a dollar amount)
|
|
Robert G. Finizio
|
|
$
|
600,000
|
|
|
|
100
|
%
|
|
$
|
600,000
|
|
John C.K. Milligan, IV
|
|
$
|
450,000
|
|
|
|
70
|
%
|
|
$
|
315,000
|
|
Daniel A. Cartwright
|
|
$
|
375,000
|
|
|
|
70
|
%
|
|
$
|
262,500
|
|
Mitchell L. Krassan
|
|
$
|
360,000
|
|
|
|
50
|
%
|
|
$
|
180,000
|
|
Michael Donegan
|
|
$
|
290,000
|
|
|
|
25
|
%
|
|
$
|
72,500
|
|
In setting the target annual
incentive opportunities for our NEOs, the Compensation Committee and our Board of Directors exercised their judgment and considered
several factors, including:
|
●
|
Our overall financial and operational results for the prior fiscal year;
|
|
●
|
The prior performance of each NEO;
|
|
●
|
Each NEO’s roles and responsibilities;
|
|
●
|
Each NEO’s individual experience and skills;
|
|
●
|
Competitive market practices for annual incentives; and
|
|
●
|
For our NEOs other than our CEO, the recommendations of our CEO.
|
Corporate Performance Measures
For fiscal 2019, the Compensation
Committee and our Board of Directors selected several components to measure performance that they believed best supported our annual
operating plan and enhanced long-term value creation. As determined by the Compensation Committee and our Board of Directors, our
NEOs were eligible to receive annual incentive compensation based on specific corporate performance measures for fiscal 2019. The
Compensation Committee and our Board of Directors set these target levels to be aggressive, yet achievable, with diligent effort
during 2019.
The corporate performance measures
for fiscal 2019 and their corresponding weights were as follows:
|
●
|
Achieve product net revenue target range of $27 million to $33 million (25% weighting) (if the revenue is above or below the target range, the Compensation Committee will apply judgement to set a higher or lower bonus payout to management, respectively);
|
|
●
|
Achieve EBITDA target of $(188) million or more (25% weighting);
|
|
●
|
Launch BIJUVA in the second quarter of 2019 (10% weighting);
|
|
●
|
Achieve the soft launch of ANNOVERA in the second half of 2019 (10% weighting);
|
|
●
|
Out-license international rights for IMVEXXY and BIJUVA by the end of 2019 (10% weighting);
|
|
●
|
Maintain vitamin sales of at least $8 million (10% weighting); and
|
|
●
|
Improvement of the company’s exclusivity position during 2019 (10% weighting);
|
Individual Performance Objectives
In prior years, our CEO
also developed and recommended to the Compensation Committee and our Board of Directors a series of individual performance objectives
for our NEOs, which he deemed to be integral to the achievement of our annual operating plan. However, for purposes of the fiscal
2019 annual performance-based incentive compensation, our CEO and the Compensation Committee determined that achieving our 2019
corporate performance measures required the aligned performance of our entire executive team and that individual performance goals
were not necessary for each of our NEOs for 2019.
Fiscal 2019 Annual Incentive Decisions
The annual incentive compensation
for each of our NEOs was determined based on an assessment by the Compensation Committee and our Board of Directors of success
in achieving the corporate performance measures, after considering the recommendations of our CEO for NEOs other than himself.
Based on both our corporate
performance for fiscal 2019, in which we met 100% of our corporate goals, the following annual incentive payments were made to
our NEOs for fiscal 2019. In making these decisions, the Compensation Committee also considered our CEO’s request to only
receive one stock option for his 2019 equity award, as well as our CEO’s continued investment of after-tax dollars in our
common stock.
Executive Officer
|
|
Annualized Fiscal
2019 Salary
|
|
|
Target Annual
Incentive Opportunity
(as a percentage
of salary)
|
|
|
Total Cash Incentive Payments for Fiscal 2019
|
|
|
Percentage of Target Annual Incentive Opportunity
|
|
Robert G. Finizio
|
|
$
|
600,000
|
|
|
|
100
|
%
|
|
$
|
600,000
|
|
|
|
100
|
%
|
John C.K. Milligan, IV
|
|
$
|
450,000
|
|
|
|
70
|
%
|
|
$
|
315,000
|
|
|
|
100
|
%
|
Daniel A. Cartwright
|
|
$
|
375,000
|
|
|
|
70
|
%
|
|
$
|
262,500
|
|
|
|
100
|
%
|
Mitchell L. Krassan
|
|
$
|
360,000
|
|
|
|
50
|
%
|
|
$
|
180,000
|
|
|
|
100
|
%
|
Michael Donegan
|
|
$
|
290,000
|
|
|
|
25
|
%
|
|
$
|
72,500
|
|
|
|
100
|
%
|
Stock-Based Awards
In early 2017, with the
initial commercialization of several of our drug candidates anticipated to begin in the near future, the Compensation Committee
and our Board of Directors decided to move toward an approach to stock option grants more consistent with similarly situated companies,
specifically providing for stock option grants to be made on an annual basis. The Compensation Committee and our Board of Directors
believed moving to such a practice would better support our company’s recruiting and retention needs for both executives
and other employees in the context of the upcoming commercialization efforts. The following stock option grants were made on August
28, 2019 to our NEOs, each of which vests in equal annual installments over a period of three years from the date of grant:
Executive Officer
|
|
Number of Stock Options Granted
|
|
Robert G. Finizio
|
|
|
1
|
|
John C.K. Milligan, IV
|
|
|
400,000
|
|
Daniel A. Cartwright
|
|
|
220,000
|
|
Mitchell L. Krassan
|
|
|
300,000
|
|
Michael Donegan
|
|
|
120,000
|
|
The Compensation Committee
chose to make these grants based on market data from the 2019 peer group for similar positions at similar companies. Our Chief
Executive Officer requested that the Compensation Committee limit his 2019 equity award to one share in order to make more equity
available to our management team with less dilution to our stockholders.
Each officer forfeits the
unvested portion, if any, of the stock options if the officer’s service to our company is terminated for any reason, except
as may otherwise be determined by our Board of Directors or as provided in an applicable employment agreement. For Messrs. Finizio,
Milligan, and Cartwright, stock-based awards vest upon termination due to death or “disability,” termination by our company without “cause,” resignation
by the officer for “good reason,” and a “change in control” of our company (as such terms are defined in
the employment agreements). For Messrs. Krassan and Donegan, stock-based awards vest upon a “change in control” of
our company (as such terms are defined in the employment agreements).
See “Executive Compensation
— Fiscal Year 2019 Grants of Plan-Based Awards” and “Executive Compensation — Outstanding Equity Awards
at Fiscal Year-End 2019” tables for further information on equity awards granted to and held by each of our NEOs.
Severance and Change in Control Benefits
We have severance and change
in control benefits for our NEOs documented in their respective employment agreements. We believe these benefits were necessary
to attract our NEOs and the change in control benefits are in the best interests of our company and our stockholders because they
help assure we will have the continued dedication and objectivity of our executive officers, notwithstanding the possibility or
occurrence of a change in control. For further details, see “Executive Compensation — Potential Payments Upon Termination
or Change in Control” below.
Tax and Accounting Considerations
Deductibility of Executive Compensation
The tax treatment of the
elements of our compensation program is one factor considered in the design of the compensation program. Under Section 162(m) of
the Code, the federal income tax deduction for certain types of compensation paid to certain executive officers of publicly-held
companies is limited to $1.0 million per officer per fiscal year unless such compensation meets certain requirements. This limitation
does not apply to certain compensation awards granted prior to November 3, 2017 that meet the transition requirements under Section
162(m) of the Code for “qualifying performance based” compensation (i.e., compensation paid only if performance meets
pre-established objective goals based on performance criteria approved by stockholders). Although the Compensation Committee considers
the impact of Section 162(m) of the Code as well as other tax and accounting consequences when developing and implementing our
executive compensation programs, the Compensation Committee retains the flexibility to design and administer compensation programs
in the best interests of our company and stockholders. In addition, due to the ambiguities and uncertainties as to the application
and interpretation of Section 162(m) of the Code and the transition rule thereunder, no assurances can be given that compensation
intended by the Compensation Committee to satisfy the requirements for deductibility under Section 162(m) of the Code would, in
fact, do so. Further, the Compensation Committee reserves the right to modify compensation that was initially intended to be exempt
from Section 162(m) if it determines that such modifications are consistent with our business needs. In addition, the Compensation
Committee may, in its judgment, authorize compensation payments that do not comply with the exemptions in Section 162(m) when it
believes that such payments are appropriate to attract and retain executive talent.
Taxation of “Parachute” Payments
and Deferred Compensation
Sections 280G and 4999
of the Code provide that executive officers and directors who hold significant equity interests and certain other service providers
may be subject to significant additional taxes if they receive payments or benefits from a change in control of a company that
exceed certain prescribed limits, and the company (or a successor) may forfeit a deduction on the amounts subject to this additional
tax. We did not provide any executive officer, including any NEO, with a “gross-up” or other reimbursement payment
for any tax liability they might owe as a result of the application of Sections 280G and 4999 during fiscal 2019, and we have
not agreed and are not otherwise obligated to provide any executive officer with such a “gross-up” or other reimbursement.
Accounting for Stock-Based Compensation
We account for stock-based
awards in accordance with the provisions of Financial Accounting Standards Board Accounting Standards Codification Topic 718 “Compensation
- Stock Compensation,” or ASC 718. In determining stock-based awards, the Compensation Committee considers the potential
expense of these awards under ASC 718 and the impact on our earnings per share.
EXECUTIVE COMPENSATION
Fiscal Year 2019 Summary Compensation Table
The following table lists
the compensation of our company’s principal executive officer, principal financial officer, and each of our three other most
highly compensated executive officers who were serving as executive officers (collectively, our NEOs) on December 31, 2019, the
end of our last completed fiscal year. The following information includes the dollar value of salaries, bonus awards, the number of non-qualified options
granted, non-equity incentive plan compensation, and certain other compensation, if any, whether paid or deferred.
Name and Principal Position
|
|
Year
|
|
|
Salary
|
|
|
Bonus
|
|
|
Option Awards(1)
|
|
|
Non-Equity Incentive Plan Compensation(2)
|
|
|
All Other Compensation
|
|
|
Total
|
|
Robert G. Finizio
|
|
2019
|
|
|
$
|
600,000
|
|
|
$
|
—
|
|
|
$
|
2
|
|
|
$
|
600,000
|
|
|
$
|
22,218
|
(5)
|
|
$
|
1,222,220
|
|
Chief Executive Officer
|
|
2018
|
|
|
$
|
600,000
|
|
|
$
|
150,000
|
(3)
|
|
$
|
1,356,218
|
|
|
$
|
600,000
|
|
|
$
|
18,359
|
(5)
|
|
$
|
2,724,577
|
|
|
|
2017
|
|
|
$
|
600,000
|
|
|
$
|
40,000
|
(3)
|
|
$
|
1,756,609
|
|
|
$
|
570,000
|
|
|
$
|
17,346
|
(5)
|
|
$
|
2,983,955
|
|
John C.K. Milligan, IV
|
|
2019
|
|
|
$
|
450,000
|
|
|
$
|
—
|
|
|
$
|
645,956
|
|
|
$
|
315,000
|
|
|
$
|
29,683
|
(4)
|
|
$
|
1,440,639
|
|
President and Secretary
|
|
2018
|
|
|
$
|
450,000
|
|
|
$
|
78,750
|
(3)
|
|
$
|
832,225
|
|
|
$
|
315,000
|
|
|
$
|
25,459
|
(4)
|
|
$
|
1,701,434
|
|
|
|
2017
|
|
|
$
|
450,000
|
|
|
$
|
40,000
|
(3)
|
|
$
|
1,026,333
|
|
|
$
|
299,250
|
|
|
$
|
24,446
|
(4)
|
|
$
|
1,840,029
|
|
Daniel A. Cartwright
|
|
2019
|
|
|
$
|
375,000
|
|
|
$
|
—
|
|
|
$
|
355,275
|
|
|
$
|
262,500
|
|
|
$
|
21,803
|
(5)
|
|
$
|
1,014,578
|
|
Chief Financial Officer
|
|
2018
|
|
|
$
|
375,000
|
|
|
$
|
65,625
|
(3)
|
|
$
|
523,993
|
|
|
$
|
262,500
|
|
|
$
|
18,359
|
(5)
|
|
$
|
1,245,477
|
|
and Treasurer
|
|
2017
|
|
|
$
|
375,000
|
|
|
$
|
40,000
|
(3)
|
|
$
|
671,064
|
|
|
$
|
249,375
|
|
|
$
|
17,346
|
(5)
|
|
$
|
1,352,785
|
|
Mitchell L. Krassan
|
|
2019
|
|
|
$
|
360,000
|
|
|
$
|
—
|
|
|
$
|
484,467
|
|
|
$
|
180,000
|
|
|
$
|
20,527
|
(6)
|
|
$
|
1,044,994
|
|
Chief Strategy &
|
|
2018
|
|
|
$
|
360,000
|
|
|
$
|
45,000
|
(3)
|
|
$
|
523,993
|
|
|
$
|
180,000
|
|
|
$
|
20,359
|
(6)
|
|
$
|
1,129,352
|
|
Performance Officer
|
|
2017
|
|
|
$
|
360,000
|
|
|
$
|
—
|
|
|
$
|
671,064
|
|
|
$
|
171,000
|
|
|
$
|
19,346
|
(6)
|
|
$
|
1,221,410
|
|
Michael Donegan
|
|
2019
|
|
|
$
|
290,000
|
|
|
$
|
—
|
|
|
$
|
193,787
|
|
|
$
|
72,500
|
|
|
$
|
15,797
|
(6)
|
|
$
|
572,084
|
|
Vice President - Finance
|
|
2018
|
|
|
$
|
290,000
|
|
|
$
|
18,125
|
(3)
|
|
$
|
308,232
|
|
|
$
|
72,500
|
|
|
$
|
14,623
|
(6)
|
|
$
|
703,480
|
|
|
|
2017
|
|
|
$
|
290,000
|
|
|
$
|
—
|
|
|
$
|
157,898
|
|
|
$
|
68,875
|
|
|
$
|
14,718
|
(6)
|
|
$
|
531,491
|
|
|
(1)
|
The valuation methodology used to determine the fair value of the options granted during the year was the Black-Scholes-Merton option-pricing model, an acceptable model in accordance with ASC 718-10. The Black-Scholes-Merton model requires the use of several assumptions, including volatility of the stock price, the weighted average risk-free interest rate, and the weighted average expected life of the options. For further information, see “Note 9 — Stockholders’ Equity” included in the financial statements included in our Annual Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 2019.
|
|
(2)
|
Amounts in this column for fiscal 2019, 2018 and 2017 represent the amounts earned and payable under our 2019, 2018 and 2017 annual performance-based incentive plan, which were earned and payable in fiscal 2019, 2018 and 2017 but were not paid until after the end of fiscal 2019, 2018 and 2017, respectively. For a description of our 2019 performance-based incentive plan and amounts earned thereunder, see “Compensation Discussion and Analysis —Fiscal 2019 Compensation— Annual Performance-Based Incentive Plan.”
|
|
(3)
|
Includes a discretionary bonus of $40,000 for 2017 related to the outstanding work in the achievement of the Company’s objectives for Messrs. Finizio, Milligan, and Cartwright and additional discretionary bonuses for all executives for 2018 related to the outstanding work in the achievement of the Company’s objectives.
|
|
(4)
|
Consists of benefit premiums paid on Mr. Milligan’s behalf, a $7,500 car allowance and company match to 401(k) plan for 2019, benefit premiums paid on Mr. Milligan’s behalf, a $5,100 car allowance and company match to 401(k) plan for 2018, and benefit premiums paid on Mr. Milligan’s behalf and a $5,100 car allowance for 2017.
|
|
(5)
|
Consists of benefit premiums paid on the NEO’s behalf and company match to 401(k) plan for 2019 and benefit premiums paid on the NEO’s behalf for 2018 and 2017.
|
|
(6)
|
Consists of benefit premiums paid on the NEO’s behalf and company match to 401(k) plan.
|
Fiscal Year 2019 Grants of Plan-Based Awards
The following table sets
forth certain information with respect to grants of plan-based awards to the NEOs for the fiscal year ended December 31, 2019.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Future Payouts
|
|
Awards:
|
|
Exercise or
|
|
Grant Date
|
|
|
|
|
|
|
Under Non-Equity
|
|
Number of
|
|
Base Price
|
|
Fair Value
|
|
|
|
|
|
|
Incentive Plan Awards(1)
|
|
Securities
|
|
of Option
|
|
of Stock
|
|
Name
|
|
Grant Date
|
|
Threshold
($)
|
|
Target
($)
|
|
Maximum
($)
|
|
Underlying
Options (#)
|
|
Awards
($/Sh)
|
|
and Option
Awards(2)
|
|
Robert G. Finizio
|
|
|
08/28/2019
|
|
|
|
|
$
|
600,000
|
|
|
|
|
|
1
|
|
$
|
2.73
|
|
$
|
2
|
|
John C.K. Milligan, IV
|
|
|
08/28/2019
|
|
|
|
|
$
|
315,000
|
|
|
|
|
|
400,000
|
|
$
|
2.73
|
|
$
|
645,956
|
|
Daniel A. Cartwright
|
|
|
08/28/2019
|
|
|
|
|
$
|
262,500
|
|
|
|
|
|
220,000
|
|
$
|
2.73
|
|
$
|
355,275
|
|
Mitchell L. Krassan
|
|
|
08/28/2019
|
|
|
|
|
$
|
180,000
|
|
|
|
|
|
300,000
|
|
$
|
2.73
|
|
$
|
484,467
|
|
Michael Donegan
|
|
|
08/28/2019
|
|
|
|
|
$
|
72,500
|
|
|
|
|
|
120,000
|
|
$
|
2.73
|
|
$
|
193,787
|
|
|
(1)
|
Our fiscal 2019 annual performance-based cash bonus plan had no threshold or maximums. The amounts reflect the applicable target incentive cash compensation opportunity for our NEOs under our fiscal 2019 annual performance-based cash bonus plan. All such awards have been paid, and the actual amounts paid are set forth under the “Non-Equity Incentive Plan Compensation” in the Fiscal Year 2019 Summary Compensation Table above. Our fiscal 2019 annual performance-based cash bonus plan is discussed under “Compensation Discussion and Analysis — Fiscal 2019 Compensation — Annual Performance-Based Incentive Plan.”
|
|
(2)
|
The amounts shown in this column represent the grant date fair value for stock option awards granted to our NEOs during the covered year calculated in accordance with ASC 718, excluding the effects of forfeitures. The assumptions used in determining the grant date fair value of these awards are set forth in the notes to our consolidated financial statements, which are included in our Annual Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 2019. We calculated the estimated value of the award based on the closing stock price of our common stock on the date of grant.
|
Outstanding Equity Awards at Fiscal Year-End
2019
The following table sets
forth information with respect to outstanding equity-based awards held by our NEOs at December 31, 2019.
|
|
|
|
|
Option Awards
|
|
|
|
|
|
Number of
Securities Underlying
Unexercised Options
|
|
|
Option
|
|
|
Option
|
Name
|
|
Grant Date
|
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
exercise price
|
|
|
expiration date
|
Robert G. Finizio
|
|
|
02/27/2012(1)
|
|
|
|
300,000
|
|
|
|
—
|
|
|
$
|
2.20
|
|
|
02/27/2022
|
|
|
|
04/16/2012(2)
|
|
|
|
50,000
|
|
|
|
—
|
|
|
$
|
2.55
|
|
|
04/16/2022
|
|
|
|
11/30/2012(3)
|
|
|
|
268,474
|
(4)
|
|
|
—
|
|
|
$
|
3.00
|
|
|
11/30/2022
|
|
|
|
12/17/2015(5)
|
|
|
|
950,000
|
|
|
|
—
|
|
|
$
|
8.92
|
|
|
12/17/2025
|
|
|
|
03/15/2017(6)
|
|
|
|
296,666
|
|
|
|
148,334
|
|
|
$
|
6.83
|
|
|
03/15/2027
|
|
|
|
03/15/2018(7)
|
|
|
|
146,667
|
|
|
|
293,333
|
|
|
$
|
5.16
|
|
|
03/15/2028
|
|
|
|
08/28/2019(8)
|
|
|
|
—
|
|
|
|
1
|
|
|
$
|
2.73
|
|
|
08/28/2029
|
John C.K. Milligan, IV
|
|
|
02/27/2012(1)
|
|
|
|
300,000
|
|
|
|
—
|
|
|
$
|
2.20
|
|
|
02/27/2022
|
|
|
|
04/16/2012(2)
|
|
|
|
75,000
|
|
|
|
—
|
|
|
$
|
2.55
|
|
|
04/16/2022
|
|
|
|
11/30/2012(3)
|
|
|
|
800,000
|
|
|
|
—
|
|
|
$
|
3.00
|
|
|
11/30/2022
|
|
|
|
05/02/2013(9)
|
|
|
|
50,000
|
|
|
|
—
|
|
|
$
|
2.80
|
|
|
05/02/2023
|
|
|
|
01/06/2014(10)
|
|
|
|
45,000
|
|
|
|
—
|
|
|
$
|
5.05
|
|
|
01/06/2024
|
|
|
|
12/17/2015(5)
|
|
|
|
500,000
|
|
|
|
—
|
|
|
$
|
8.92
|
|
|
12/17/2025
|
|
|
|
3/15/2017(6)
|
|
|
|
173,334
|
|
|
|
86,666
|
|
|
$
|
6.83
|
|
|
03/15/2027
|
|
|
|
3/15/2018(7)
|
|
|
|
90,000
|
|
|
|
180,000
|
|
|
$
|
5.16
|
|
|
03/15/2028
|
|
|
|
08/28/2019(8)
|
|
|
|
—
|
|
|
|
400,000
|
|
|
$
|
2.73
|
|
|
08/28/2029
|
Daniel A. Cartwright
|
|
|
10/21/2011(11)
|
|
|
|
180,000
|
|
|
|
—
|
|
|
$
|
0.38
|
|
|
10/21/2021
|
|
|
|
11/30/2012(3)
|
|
|
|
700,000
|
|
|
|
—
|
|
|
$
|
3.00
|
|
|
11/30/2022
|
|
|
|
12/17/2015(5)
|
|
|
|
325,000
|
|
|
|
—
|
|
|
$
|
8.92
|
|
|
12/17/2025
|
|
|
|
3/15/2017(6)
|
|
|
|
113,334
|
|
|
|
56,666
|
|
|
$
|
6.83
|
|
|
03/15/2027
|
|
|
|
3/15/2018(7)
|
|
|
|
56,667
|
|
|
|
113,333
|
|
|
$
|
5.16
|
|
|
03/15/2028
|
|
|
|
08/28/2019(8)
|
|
|
|
—
|
|
|
|
220,000
|
|
|
$
|
2.73
|
|
|
08/28/2029
|
Mitchell L. Krassan
|
|
|
5/01/2010(12)
|
|
|
|
105,703
|
|
|
|
—
|
|
|
$
|
0.19
|
|
|
05/01/2020
|
|
|
|
9/01/2010(13)
|
|
|
|
683,955
|
|
|
|
—
|
|
|
$
|
0.20
|
|
|
09/01/2020
|
|
|
|
11/21/2014(14)
|
|
|
|
75,000
|
|
|
|
—
|
|
|
$
|
4.01
|
|
|
11/21/2024
|
|
|
|
12/17/2015(5)
|
|
|
|
150,000
|
|
|
|
—
|
|
|
$
|
8.92
|
|
|
12/17/2025
|
|
|
|
3/15/2017(6)
|
|
|
|
113,334
|
|
|
|
56,666
|
|
|
$
|
6.83
|
|
|
03/15/2027
|
|
|
|
3/15/2018(7)
|
|
|
|
56,667
|
|
|
|
113,333
|
|
|
$
|
5.16
|
|
|
03/15/2028
|
|
|
|
08/28/2019(8)
|
|
|
|
—
|
|
|
|
300,000
|
|
|
$
|
2.73
|
|
|
08/28/2029
|
Michael Donegan
|
|
|
6/21/2013(15)
|
|
|
|
75,000
|
|
|
|
—
|
|
|
$
|
2.98
|
|
|
06/21/2023
|
|
|
|
7/09/2014(16)
|
|
|
|
50,000
|
|
|
|
—
|
|
|
$
|
5.01
|
|
|
07/09/2024
|
|
|
|
12/17/2015(5)
|
|
|
|
100,000
|
|
|
|
—
|
|
|
$
|
8.92
|
|
|
12/17/2025
|
|
|
|
3/15/2017(6)
|
|
|
|
26,666
|
|
|
|
13,334
|
|
|
$
|
6.83
|
|
|
03/15/2027
|
|
|
|
3/15/2018(7)
|
|
|
|
33,333
|
|
|
|
66,667
|
|
|
$
|
5.16
|
|
|
03/15/2028
|
|
|
|
08/28/2019(8)
|
|
|
|
—
|
|
|
|
120,000
|
|
|
$
|
2.73
|
|
|
08/28/2029
|
|
|
|
|
|
Warrants
|
|
|
|
|
|
Number of
Securities Underlying
Unexercised Warrants
|
|
|
Warrant
|
|
|
Warrant
|
Name
|
|
Grant Date
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
Exercise Price
|
|
|
Expiration Date
|
Robert G. Finizio
|
|
|
03/06/2011(17)
|
|
|
|
179,000
|
|
|
|
—
|
|
|
$
|
0.24
|
|
|
03/06/2021
|
John C.K. Milligan, IV
|
|
|
03/06/2011(17)
|
|
|
|
179,000
|
|
|
|
—
|
|
|
$
|
0.24
|
|
|
03/06/2021
|
Daniel A. Cartwright
|
|
|
10/21/2011(18)
|
|
|
|
600,000
|
|
|
|
—
|
|
|
$
|
0.38
|
|
|
10/20/2021
|
|
(1)
|
The stock options granted on February 27, 2012 vested in full on February 27, 2013.
|
|
(2)
|
The stock options granted on April 16, 2012 vested in full on December 31, 2012.
|
|
(3)
|
The stock options granted on November 30, 2012 vested annually on November 30 of each year over three years.
|
|
(4)
|
Mr. Finizio was initially granted stock options to purchase 900,000 of our common stock; however, on May 8, 2013, Mr. Finizio agreed to relinquish his right to receive 600,000 shares of our common stock underlying these stock options.
|
|
(5)
|
The stock options granted on December 17, 2015 vested monthly over 12 months beginning on January 21, 2016.
|
|
(6)
|
The stock options granted on March 15, 2017 will vest annually over three years on the anniversary of the grant date.
|
|
(7)
|
The stock options granted on March 15, 2018 will vest annually over three years on the anniversary of the grant date.
|
|
(8)
|
The stock options granted on August 28, 2019 will vest annually over three years on the anniversary of the grant date.
|
|
(9)
|
The stock options granted on May 2, 2013 vested in full on December 31, 2013.
|
|
(10)
|
The stock options granted on January 6, 2014 vested in full on December 31, 2014.
|
|
(11)
|
The stock options granted on October 21, 2011 vested annually over four years on the anniversary of the grant date.
|
|
(12)
|
The stock options granted on May 1, 2010 vested in full on May 1, 2011.
|
|
(13)
|
The stock options granted on September 1, 2010 vested monthly over three years on the first day of each month following the first month after the date of grant.
|
|
(14)
|
The stock options granted on November 21, 2014 vested annually over four years on the anniversary of the grant date.
|
|
(15)
|
The stock options granted on June 21, 2013 vested annually over three years on the anniversary of the grant date.
|
|
(16)
|
The stock options granted on July 9, 2014 vested annually over four years on the anniversary of the grant date.
|
|
(17)
|
The warrants granted on March 6, 2011 vested quarterly starting on June 30, 2011 over eight quarters.
|
|
(18)
|
The warrant granted on October 21, 2011 vested monthly over 44 months beginning on November 21, 2011.
|
Option Exercises and Stock Vested in Fiscal
Year 2019
During fiscal year 2019,
none of our NEOs acquired shares upon the exercise of stock options or the vesting of stock awards.
Post-Employment Compensation
Pension Benefits
We do not offer any defined
benefit pension plans for any of our employees. We have a 401(k) plan in which employees may participate.
Other Compensation
All of our executive officers
are eligible to participate in our employee benefit plans, including medical, dental, life insurance, and tax-qualified Section
401(k) retirement savings plans. These plans are available to all employees and do not discriminate in favor of executive officers.
It is generally our policy to not extend significant perquisites to executives that are not broadly available to our other employees.
In designing these elements, we seek to provide an overall level of benefits that is competitive with that offered by similarly
situated companies in the markets in which we operate based upon our general understanding of industry practice. These benefits
are not considered in determining the compensation of our executive officers.
Employment Agreements
Robert G. Finizio has an
employment agreement that commenced November 8, 2012; the agreement initially provided for a three-year term and now automatically
renews for additional one-year terms each year on the anniversary of execution unless notice of non-renewal is given by either
our company or Mr. Finizio at least 90 days prior to such anniversary. The agreement originally provided for: (i) a time-based
ten-year stock option, (ii) the right to receive a performance-based ten-year stock option in an amount to be determined, (iii)
a salary of not less than $355,100 per year, and (iv) an annual short-term incentive compensation of up to 35% of salary, at the
discretion of our Board of Directors. Mr. Finizio will receive employee benefits, vacation, and other perquisites as may be
determined from time to time. Conditions of termination call for (i) termination immediately upon death, (ii) termination upon
a disability in which Mr. Finizio is unable to perform his duties for more than 180 total calendar days during any 12-month period,
(iii) voluntary termination by Mr. Finizio upon a 14 calendar day prior notice, (iv) involuntary termination by our company without
cause with 60-day notice (or 90-day notice when termination is due to the non-extension of the employment term by our company),
(v) termination for cause, and (vi) termination for good reason wherein Mr. Finizio will have 90 days from the date of notice
to terminate his employment.
John C.K. Milligan, IV
has an employment agreement that commenced November 8, 2012; the agreement initially provided for a three-year term and now automatically
renews for additional one-year terms each year on the anniversary of execution unless notice of non-renewal is given by either
our company or Mr. Milligan at least 90 days prior to such anniversary. The agreement originally provided for: (i) a time-based
ten-year stock option, (ii) the right to receive a performance-based ten-year stock option in an amount to be determined, (iii)
a salary of not less than $288,100 per year, and (iv) an annual short-term incentive compensation of up to 30% of salary, at the
discretion of our Board of Directors. Mr. Milligan will receive employee benefits, vacation, and other perquisites as may be determined
from time to time. Conditions of termination call for (i) termination immediately upon death, (ii) termination upon a disability
in which Mr. Milligan is unable to perform his duties for more than 180 total calendar days during any 12-month period, (iii) voluntary
termination by Mr. Milligan upon a 14 calendar day prior notice, (iv) involuntary termination by our company without cause
with 60-day notice or (90-day notice when termination is due to the non-extension of the employment term by our company), (v) termination
for cause, and (vi) termination for good reason wherein Mr. Milligan shall have 90 days from the date of notice to terminate
his employment. The employment agreement contains standard provisions for confidentiality and noncompetition.
Daniel A. Cartwright has
an employment agreement that commenced November 8, 2012; the agreement initially provided for a three-year term and now automatically
renews for additional one-year terms each year on the anniversary of execution unless notice of non-renewal is given by either
our company or Mr. Cartwright at least 90 days prior to such anniversary. The agreement originally provided for: (i) a time-based
ten-year stock option, (ii) the right to receive a performance-based ten-year stock option in an amount to be determined, (iii)
a salary of not less than $257,100 per year, and (iv) an annual short-term incentive compensation of up to 30% of salary, at the
discretion of our Board of Directors. Mr. Cartwright will receive employee benefits, vacation, and other perquisites as may be
determined from time to time. Conditions of termination call for (i) termination immediately upon death, (ii) termination upon
a disability in which Mr. Cartwright is unable to perform his duties for more than 180 total calendar days during any 12-month
period, (iii) voluntary termination by Mr. Cartwright upon a 14 calendar day prior notice, (iv) involuntary termination by
our company without cause with 60-day notice or (90-day notice when termination is due to the non-extension of the employment term
by our company), (v) termination for cause, and (vi) termination for good reason wherein Mr. Cartwright will have 90 days
from the date of notice to terminate his employment. The employment agreement contains standard provisions for confidentiality
and noncompetition.
Mitchell Krassan has a
one year employment agreement that commenced on December 17, 2015, subject to automatic renewals of one year terms, which calls
for (i) a time-based one-year stock option, (ii) a salary of not less than $300,000 per year, and (iii) an annual short-term incentive
compensation target of 50% of salary, at the discretion of our Board of Directors. Mr. Krassan will receive employee benefits,
vacation, and other perquisites as may be determined from time to time. Conditions of termination call for (i) termination immediately
upon death, (ii) termination upon a disability in which Mr. Krassan is unable to perform his duties for six consecutive months,
(iii) termination immediately by Mr. Krassan upon written notice, (iv) termination immediately by our company without cause, (v)
termination for cause upon ten days’ written notice, and (vi) termination by Mr. Krassan for good reason upon 30 days’
written notice within 90 days of the event constituting good reason. The employment agreement contains standard provisions for
confidentiality and noncompetition.
Michael Donegan has a one
year employment agreement that commenced on December 17, 2015, subject to automatic renewals of one year terms, which calls for
(i) a time-based one-year stock option, (ii) salary of not less than $290,000 per year, and (iii) an annual short-term incentive
compensation target of 25% of salary, at the discretion of our Board of Directors. Mr. Donegan will receive employee benefits,
vacation, and other perquisites as may be determined from time to time. Conditions of termination call for (i) termination immediately
upon death, (ii) termination upon a disability in which Mr. Donegan is unable to perform his duties for six consecutive months,
(iii) termination immediately by Mr. Donegan upon written notice, (iv) termination immediately by our company without cause, (v)
termination for cause upon ten days’ written notice, and (vi) termination by Mr. Donegan for good reason upon 30 days’
written notice within 90 days of the event constituting good reason. The employment agreement contains standard provisions for
confidentiality and noncompetition.
Potential Payments Upon Termination or Change
in Control
We have employment agreements
with certain of our executive officers as described above. The arrangements reflected in these employment agreements are designed
to encourage the officers’ full attention and dedication to our company currently and, in the event of any proposed change
in control, provide these officers with individual financial security. The employment agreements provide for specified payments
and benefits by us to our executive officers only upon a qualifying termination of employment as described below.
Termination by Us Without Good Cause or
by Executive with Good Reason - No Change in Control
Pursuant to the employment
agreements for each of Messrs. Finizio, Milligan, and Cartwright, in the event of termination of the executive’s employment
without “cause” or resignation by the executive for “good reason” (as each term is defined in the employment
agreements), the executive would be entitled to (i) the sum of his salary, payable on a biweekly basis ratably over 52 weeks and
target annual incentive compensation for the fiscal year in which such termination of employment occurs, subject to the executive’s signing and not revoking a full and complete release of all claims against the company and its affiliates, (ii) a continuation of welfare benefits for a period of one year after such termination, subject to the executive’s signing and not revoking a full and complete release of all claims against the company and its affiliates, (iii) unpaid accrued base salary and unused vacation pay through the termination date and (iv) amounts accrued but unpaid at the time of termination. Additionally, all outstanding equity awards that vest solely on the passage of time held by such executives would immediately vest in full for each of Messrs. Finizio, Milligan, and Cartwright. If a change in control is consummated on or prior to the first anniversary of the effective date of termination, then, prior to such consummation, the company will be required to deliver to the executive the number of shares of company common stock the executive forfeited upon termination pursuant to unvested performance-based restricted stock awards and all other equity awards held by the executive will accelerate in full. Furthermore, the above obligations of the company are subject to the executive complying with a five-year confidentiality agreement post-termination, a 12-month non-solicitation agreement and a 12-month non-competition agreement (18 months for Mr. Finizio) that is subject to extension for an additional 12-month period by the company upon compensation for a like number of months on the terms of their respective employment agreements; provided, that upon a change in control, the executive will be released from the non-solicitation and non-competition covenants if such executive is terminated without cause or resigns for good reason.
Pursuant to the employment
agreements for each of Messrs. Donegan and Krassan, in the event of termination of the executive’s employment without “good
cause” or resignation by the executive for “good reason” (as each term is defined in the employment agreements),
the executive would be entitled to (i) the sum of his salary payable over a 12-month period, (ii) any target annual incentive compensation
for the fiscal year in which such termination of employment occurs, (iii) a continuation of welfare benefits for a period of one
year after such termination, and (iv) payment of accrued but unused paid time off, in each case subject to the executive signing
and not revoking a full and complete release of all claims against the company and its affiliates, adhering to an 18-month post-termination
non-competition covenant and a 24-month post-termination non-solicitation covenant and adhering to the terms of the Employee Assignment,
Invention and Confidentiality Agreement between the executive and the company which survive post-termination. Additionally, all
unvested equity compensation granted after the date of the employment agreement and held by the executive in his capacity as an
employee would immediately vest as of the effective date of termination.
Termination or Resignation in Connection
with a Change in Control
In the event of termination
of the executive’s employment without “cause” or resignation by the executive for “good reason” (as
each term is defined in the employment agreements), following the date of the announcement of a transaction that leads to a change
in control and up to 12 months following the date of the change in control, in addition to those payments and benefits provided
to salaried employees generally, including amounts accrued but unpaid at the time of termination:
|
●
|
Messrs. Finizio and Milligan would be entitled to (i) the sum of their respective salary and target annual incentive compensation for the fiscal year in which such termination of employment occurs, payable in a lump sum, subject to the executive signing a release and not revoking a full and complete release of all claims against the company and its affiliates, (ii) a continuation of welfare benefits for a period of one year after such termination, subject to the executive signing a release and not revoking a full and complete release of all claims against the company and its affiliates, (iii) unpaid accrued base salary and unused vacation pay through the termination date and (iv) all other rights and benefits the executive is vested in, pursuant to other plans and programs of our company, and
|
|
●
|
Mr. Cartwright would be entitled to (i) an amount equal to 150% of his salary and target annual incentive compensation for the fiscal year in which such termination of employment occurs, payable in a lump sum, subject to the executive signing a release and not revoking a full and complete release of all claims against the company and its affiliates, (ii) a continuation of welfare benefits for a period of 18 months after such termination, subject to the executive signing a release and not revoking a full and complete release of all claims against the company and its affiliates, (iii) unpaid accrued base salary and unused vacation pay through the termination date and (iv) all other rights and benefits the executive is vested in, pursuant to other plans and programs of our company.
|
Additionally, all outstanding
long-term incentive awards and warrants would immediately vest in full for each of Messrs. Finizio, Milligan, and Cartwright.
Termination by Reason of Death or Disability
For Messrs. Finizio, Milligan,
and Cartwright, in the event of termination of the executive’s employment by reason of his death or “disability”
(as such term is defined in the employment agreements), in addition to those payments and benefits provided to salaried employees
generally, including amounts accrued but unpaid at the time of termination, each of the executives would be entitled to (i) pro-rated
target annual incentive compensation for the fiscal year in which such termination of employment occurs, payable in a lump sum,
subject to the executive’s signing and not revoking a full and complete release of all claims against the company and its
affiliates in the event of a disability, (ii) immediate
vesting of all outstanding equity awards that vest solely on the passage of time, (iii) accrued but unused vacation pay through
the termination date, payable in a lump sum, and (iv) all other rights and benefits the executive is vested in, pursuant to other
plans and programs of our company.
The tables below reflect
the amount of compensation to certain of our NEOs, assuming termination of such executive’s employment without cause or for
good reason or following a change in control of our company on December 31, 2019. Other than as set forth below, no amounts will
be paid to our NEOs in the event of termination.
Robert G. Finizio
Executive Benefits and Payments
|
|
Termination
Without
Good Cause
or with Good
Reason (Not in
Connection with
a Change
in Control)
|
|
|
|
Termination
Without
Good Cause
or with
Good Reason
Following
a Change
in Control
|
|
|
|
Termination by
Reason of
Death or
Disability
|
|
Cash severance
|
|
$
|
1,222,218
|
(1)
|
|
|
$
|
1,222,218
|
(1)
|
|
|
$
|
600,000
|
(2)
|
Equity awards(3)
|
|
|
—
|
|
|
|
|
—
|
|
|
|
|
—
|
|
Other
|
|
|
—
|
|
|
|
|
—
|
|
|
|
|
—
|
|
John C.K. Milligan, IV
Executive Benefits and Payments
|
|
Termination
Without
Good Cause
or with Good
Reason (Not in
Connection with
a Change
in Control)
|
|
|
|
Termination
Without
Good Cause
or with
Good Reason
Following
a Change
in Control
|
|
|
|
Termination by
Reason of
Death or
Disability
|
|
Cash severance
|
|
$
|
787,183
|
(1)
|
|
|
$
|
787,183
|
(1)
|
|
|
$
|
315,000
|
(2)
|
Equity awards(3)
|
|
|
—
|
|
|
|
|
—
|
|
|
|
|
—
|
|
Other(4)
|
|
$
|
7,500
|
|
|
|
$
|
7,500
|
|
|
|
$
|
7,500
|
|
Daniel A. Cartwright
Executive Benefits and Payments
|
|
Termination
Without
Good Cause
or with Good
Reason (Not in
Connection with
a Change
in Control)
|
|
|
|
Termination
Without
Good Cause
or with
Good Reason
Following
a Change
in Control
|
|
|
|
Termination by
Reason of
Death or
Disability
|
|
Cash severance
|
|
$
|
659,303
|
(1)
|
|
|
$
|
978,053
|
(1)
|
|
|
$
|
262,500
|
(2)
|
Equity awards(3)
|
|
|
—
|
|
|
|
|
—
|
|
|
|
|
—
|
|
Other
|
|
|
—
|
|
|
|
|
—
|
|
|
|
|
—
|
|
Mitchell Krassan
Executive Benefits and Payments
|
|
Termination
Without
Good Cause
or with Good
Reason (Not in
Connection with
a Change
in Control)
|
|
|
|
Termination
Without
Good Cause
or with
Good Reason
Following
a Change
in Control
|
|
|
|
Termination by
Reason of
Death or
Disability
|
|
Cash severance
|
|
$
|
560,527
|
(1)
|
|
|
$
|
560,527
|
(1)
|
|
|
$
|
180,000
|
(2)
|
Equity awards(3)
|
|
|
—
|
|
|
|
|
—
|
|
|
|
|
—
|
|
Other
|
|
|
—
|
|
|
|
|
—
|
|
|
|
|
—
|
|
Michael Donegan
Executive Benefits and Payments
|
|
Termination
Without
Good Cause
or with Good
Reason (Not in
Connection with
a Change
in Control)
|
|
|
|
Termination
Without
Good Cause
or with
Good Reason
Following
a Change
in Control
|
|
|
|
Termination by
Reason of
Death or
Disability
|
|
Cash severance
|
|
$
|
378,297
|
(1)
|
|
|
$
|
378,297
|
(1)
|
|
|
$
|
72,500
|
(2)
|
Equity awards(3)
|
|
|
—
|
|
|
|
|
—
|
|
|
|
|
—
|
|
Other
|
|
|
—
|
|
|
|
|
—
|
|
|
|
|
—
|
|
|
(1)
|
Consists of payments due
to executive for (i) salary, (ii) target annual incentive compensation, and (iii) health and welfare benefits. In the case of
Mr. Cartwright following a change in control, consists of (i) 150% of salary, (ii) 150% of target annual incentive compensation,
and (iii) health and welfare benefits.
|
|
(2)
|
Represents full annual incentive
compensation that would be prorated based on termination date.
|
|
(3)
|
Represents the value of unvested
equity awards that would become fully vested upon a termination without cause, resignation for good reason, or in connection with
a change in control. The value is calculated by multiplying the number of shares underlying each accelerated award by the difference
between $2.42, the per share closing price of the Common Stock on December 31, 2019, and the per share exercise price. In each
case, the exercise price was below $2.42, and thus no value was attributable to the accelerated vesting of the awards.
|
|
(4)
|
Represents the amount payable
for a car allowance.
|
Nonqualified Defined Contribution and Nonqualified
Deferred Compensation
We do not offer any nonqualified
defined contribution plans or nonqualified deferred compensation plans for any of our NEOs.
Limitation of Directors’ Liability;
Indemnification of Directors, Officers, Employees, and Agents
Our amended and restated
articles of incorporation and bylaws, each as amended, provide that we may indemnify to the full extent of our power to do so,
all directors, officers, employees, and/or agents. The effect of this provision in the amended and restated articles of incorporation,
as amended, is to eliminate the rights of our company and our stockholders, either directly or through stockholders’ derivative
suits brought on behalf of our company, to recover monetary damages from a director for breach of the fiduciary duty of care as
a director except in those instances described under Nevada law.
Insofar as indemnification
by our company for liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, may be permitted to
officers and directors of our company pursuant to the foregoing provisions or otherwise, we are aware that in the opinion of the
SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
DIRECTOR COMPENSATION
We compensate our non-employee
directors with a combination of cash and equity. Our Board of Directors receives the follow cash compensation for their service:
each director receives an annual cash retainer of $57,500; the chairperson of the Board receives an additional $22,500 annual cash
retainer; the chairperson of our Audit Committee receives an annual cash retainer of $30,000 and the other members of the Audit
Committee receive an annual cash retainer of $15,000; the chairperson of the Compensation Committee receives an annual cash retainer
of $20,000 and the other members of the Compensation Committee receive an annual cash retainer of $12,000; and the chairperson
of each of our other committees receives an annual cash retainer of $12,500 and the other members receive an annual cash retainer
of $7,500. We also reimburse our directors for reasonable expenses related to attendance at Board of Directors and committee meetings.
In addition, in 2019, each director received an annual grant of stock options to purchase 75,000 shares of our common stock and
the Chairman of the Board received an additional grant of stock options to purchase 37,500 shares of our common stock. We do not
pay our directors per meeting fees.
The following table and
accompanying footnotes detail compensation paid to our directors for services rendered for the year ended December 31, 2019. Messrs.
Finizio’s and Milligan’s compensation is described above under “Executive Compensation.”
Name
|
|
Fees Earned
or Paid in Cash
|
|
|
Option
Awards(1)(2)(3)
|
|
|
All Other
Compensation
|
|
|
Total
|
|
Brian A. Bernick, M.D.
|
|
$
|
—
|
|
|
$
|
—
|
(4)
|
|
$
|
—
|
(5)
|
|
$
|
—
|
|
Dr. Jane Barlow
|
|
$
|
77,000
|
|
|
$
|
110,008
|
|
|
|
—
|
|
|
$
|
187,008
|
|
J. Martin Carroll
|
|
$
|
84,500
|
|
|
$
|
110,008
|
|
|
|
—
|
|
|
$
|
194,508
|
|
Cooper C. Collins
|
|
$
|
92,500
|
|
|
$
|
110,008
|
|
|
|
—
|
|
|
$
|
202,508
|
|
Robert V. LaPenta, Jr.
|
|
$
|
95,000
|
|
|
$
|
110,008
|
|
|
|
—
|
|
|
$
|
205,008
|
|
Jules A. Musing
|
|
$
|
72,500
|
|
|
$
|
110,008
|
|
|
|
—
|
|
|
$
|
182,508
|
|
Nicholas Segal
|
|
$
|
72,500
|
|
|
$
|
110,008
|
|
|
|
—
|
|
|
$
|
182,500
|
|
Angus C. Russell
|
|
$
|
80,000
|
|
|
$
|
110,008
|
|
|
|
—
|
|
|
$
|
190,008
|
|
Tommy G. Thompson
|
|
$
|
112,000
|
|
|
$
|
165,012
|
|
|
|
—
|
|
|
$
|
277,012
|
|
|
(1)
|
The valuation methodology used to determine the fair value of the options granted during the year was the Black-Scholes-Merton option-pricing model, an acceptable model in accordance with ASC 718. The Black-Scholes-Merton model requires the use of several assumptions including volatility of the stock price, the weighted average risk-free interest rate, and the weighted average expected life of the options. For further information, see “Note 9 – Stockholders’ Equity” included in the financial statements included in our Annual Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 2019.
|
|
(2)
|
Stock options depicted in the table above were granted to directors (other than Dr. Bernick) for serving on our Board of Directors on June 20, 2019 and will vest on June 20, 2020 for our current directors.
|
|
(3)
|
On December 31, 2019, each of the directors listed in the “Director Compensation” table had option awards outstanding to purchase the following number of shares of common stock: Dr. Bernick (1,260,000), Mr. Collins (570,000), Mr. LaPenta (570,000), Mr. Thompson (1,095,000), Mr. Segal (587,057), Mr. Musing (695,000), Mr. Russell (350,000), Mr. Carroll (350,000), Dr. Barlow (175,000) and there were no forfeitures of stock options by any of such directors in fiscal 2019.
|
|
(4)
|
Dr. Bernick receives no additional compensation for his duties as a director of our company. For the year ended December 31, 2019, Dr. Bernick received a grant of stock options for his services as an officer of our company valued at $484,467.
|
|
(5)
|
Dr. Bernick receives no additional compensation for his duties as a director of our company. For the year ended December 31, 2019, Dr. Bernick received cash compensation for his services as an officer of our company in the amount of $637,500.
|
REPORT OF THE AUDIT COMMITTEE
The Board of Directors
has appointed an Audit Committee consisting of independent directors. All of the members of the committee must be “independent”
of our company and management, as independence is defined in applicable rules of the SEC and the Nasdaq listing standards.
The purpose of the Audit
Committee is to assist the oversight of our Board of Directors in the integrity of the financial statements of our company, our
company’s compliance with legal and regulatory matters, the independent auditor’s qualifications and independence,
and the performance of our company’s independent auditor and any internal audit function. The primary responsibilities of
the committee include overseeing our company’s accounting and financial reporting process and audits of the financial statements
of our company. Management has the primary responsibility for the financial statements and the reporting process, including the
systems of internal controls. The independent auditor is responsible for auditing the financial statements and expressing an opinion
on the conformity of those audited financial statements with generally accepted accounting principles.
In this context, the Audit
Committee met and held discussions with management and the independent registered public accounting firm. Management represented
to the Audit Committee the audited financial statements were prepared in accordance with generally accepted accounting principles.
The Audit Committee reviewed and discussed the audited financial statements with management and the independent registered public
accounting firm. The Audit Committee discussed with the independent registered public accounting firm the matters required to be
discussed by the applicable requirements of the Public Company Accounting Oversight Board (“PCAOB”) and the SEC. The
independent registered public accounting firm also provided to the Audit Committee the written disclosures and the letter required
by the applicable requirements of the PCAOB regarding the independent accountant’s communications with the Audit Committee
concerning independence. The Audit Committee discussed with the independent registered public accounting firm that firm’s
independence.
The Audit Committee discussed
with our independent auditor the overall scope and plans for its audit. The Audit Committee meets with the independent auditor,
with and without management present, to discuss the results of the independent auditor’s examinations, its evaluations of
our company, the internal controls, and the overall quality of the financial reporting. The Audit Committee held six meetings in
2019.
Based on the reviews and
discussions referred to above, the Audit Committee recommended to the Board of Directors, and the Board of Directors approved,
that the audited financial statements be included in the Annual Report on Form 10-K for the fiscal year ended December 31, 2019
for filing with the SEC.
The report has been furnished
by the Audit Committee of our Board of Directors.
April 28, 2020
|
Angus C. Russell, Chairman
Paul M. Bisaro
Cooper Collins
|
CHIEF
EXECUTIVE OFFICER PAY RATIO
For 2019, the total compensation
of our Chief Executive Officer of $1,222,220, as presented in the Summary Compensation
Table, was approximately 10.7 times the total compensation of our median employee of approximately $114,000. To identify the median
of the annual compensation of all of our employees (other than the CEO), we used wages from our payroll records as reported to
the Internal Revenue Service on Form W-2 for fiscal year 2019 and added the fair value of options granted in 2019. The median employee
was identified by reviewing the total compensation for all employees (other than the CEO) who were employed by us on December 31,
2019. All of our employees were included, whether employed on a full-time, part-time or seasonal basis. Adjustments were made to
annualize the compensation of employees who were not employed by us for the entire year. No full-time equivalent adjustments were
made for part time employees.
The SEC’s pay
ratio disclosure rules provide reporting companies with a great deal of flexibility in determining the methodology used to
identify the median employee and the pay ratio. As such, our methodology may differ materially from the methodology used by
other companies to prepare their pay ratio disclosures, which may contribute to a lack of comparability between our pay
ratio and the pay ratio reported by other companies, including those within our industry.
Compensation Committee Interlocks and Insider
Participation
During our fiscal year
ended December 31, 2019, Dr. Barlow and Messrs. Collins, Thompson, and Carroll served as members of the Compensation Committee.
None of Dr. Barlow or Messrs.
Collins, Thompson, or Carroll have been at any time one of our officers or employees or had any relationship with us that requires
disclosure under Item 404 of Regulation S-K under the Exchange Act.
During the fiscal year
ended December 31, 2019, none of our executive officers served on the compensation committee or board of directors of any entity
whose executive officers serve as a member of our Board of Directors or Compensation Committee.
COMPENSATION COMMITTEE REPORT
The Compensation Committee
has reviewed and discussed with management the Compensation Discussion and Analysis section included in this Form 10-K/A and, based
on such review and discussions, the Compensation Committee recommended to our Board of Directors that the Compensation Discussion
and Analysis section be included in this Form 10-K/A.
April 28, 2020
|
Respectfully submitted,
Cooper C. Collins, Chairman
J. Martin Carroll
Tommy G. Thompson
|