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UNITED STATES
SCHEDULE 14A INFORMATION
(Rule 14a-101)SECURITIES AND EXCHANGE COMMISSION
PROXY STATEMENT PURSUANT TO SECTIONWashington, D.C. 20549
Schedule 14A
Proxy Statement Pursuant to Section 14(a) OF
THE SECURITIES EXCHANGE ACT OFof the Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant [X]x
Filed by a Partyparty other than the Registrant [ ]¨
Check the appropriate box:
[ ]¨ Preliminary Proxy Statement
[ ]¨ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
[X]x Definitive Proxy Statement
[ ]¨ Definitive Additional Materials
[ ]¨ Soliciting Material under §240.14a-12§ 240.14a-12
ContraVirHepion Pharmaceuticals, Inc.
(Name of Registrant as Specified inIn Its Charter)
(Name of Person(s) Filing Proxy Statement, if other Thanthan the Registrant)
Payment of Filing Fee (Check the appropriate box)all boxes that apply):
[X]x No fee required.required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ]¨ Fee paid previously with preliminary materials.
[ ]¨ Check box if any part of the fee is offset as providedFee computed on table in exhibit required by Item 25(b) per Exchange Act Rule 0-11(a)(2)Rules 14a- 6(i)(1) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.0-11
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
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Hepion Pharmaceuticals, Inc.
399 Thornall Street, First Floor
Edison, New JerseyNJ 08837
NOTICE OF 20172022 ANNUAL MEETING OF
STOCKHOLDERS AND PROXY STATEMENT
To Be Held on June 24, 2022
Dear Stockholder:
On behalf of our Board of Directors (the “Board”), I cordiallyWe are pleased to invite you to attend the annual meeting of stockholders (the “Annual Meeting”) of ContraVirHepion Pharmaceuticals, Inc. (the(“Hepion” or the “Company”) to, which will be held on June 24, 2022 at the Company’s9:00 a.m. local time at our offices, located at 399 Thornall Street, First Floor, Edison, New JerseyNJ 08837, on December 13, 2017 at 9:00 a.m. local time, for the following purposes:
1. To elect seven (7) directors for a one-year term to expire at the 2018 annual meeting of stockholders;
| 1. | To elect six (6) members to our board of directors to hold office until the 2023 Annual Meeting; |
2. To ratify the appointment of BDO USA, LLP as our independent registered public accounting firm for the fiscal year ending June 30, 2018;
| 2. | To ratify the appointment of BDO USA, LLP as our independent registered public accounting firm for our fiscal year ending December 31, 2022; |
3. To approve an amendment to the Company’s 2013 Equity Incentive Plan (the “2013 Plan”) to increase the reservation of common stock for issuance thereunder to 10,700,000 shares from 7,700,000 shares; and
| 3. | To consider and act upon a proposal to approve the Company’s 2022 Omnibus Equity Incentive Plan (the “2022 Plan”); |
| 4. | To amend our certificate of incorporation, as amended, to increase the number of shares of authorized common stock from 120,000,000 to 200,000,000; |
4. To transact any other business that may properly come before our annual meeting or any adjournment or postponement of the meeting.
| 5. | To conduct an advisory vote to approve the compensation of the Company’s named executive officers, referred to as “say-on-pay;” and |
| 6. | To transact such other matters as may properly come before the Annual Meeting and any adjournment or postponement thereof. |
Our Boardboard of directors has fixed October 27, 2017the close of business on April 26, 2022 as the record date for thea determination of stockholders entitled to notice of, and to vote at, the annual meeting and atAnnual Meeting or any adjournment or postponement of the meeting.thereof.
All stockholders are cordially invited to attend the annual meeting. Whether or not you expect to attend the annual meeting, please complete, sign and date the enclosed proxy and return it promptly. If you plan to attend the annual meeting and wish to vote your shares personally, you may do so at any time before the proxy is voted.
If You Plan to Attend
Please note that space limitations make it necessary to limit attendance of the Annual Meeting to our stockholders. Registration and seating will begin at 8:3000 a.m. Shares of common stock can be voted at the Annual Meeting only if the holder thereof is present in person or by valid proxy.
For admission to the Annual Meeting, each stockholder may be asked to present valid picture identification, such as a driver’s license or passport, and proof of stock ownership as of the record date, such as the enclosed proxy card or a brokerage statement reflecting stock ownership. Cameras, recording devices and other electronic devices will not be permitted at the meeting.Annual Meeting. If you do not plan on attending the meeting,Annual Meeting, please vote, date and sign the enclosed proxy and return it in the business envelope provided. Even if you do plan to attend the Annual Meeting, we recommend that you vote your shares at your earliest convenience in order to ensure your representation at the Annual Meeting. Your vote is very important.
If you have any questions or need assistance voting your shares, please call Innisfree M&A Incorporated, the firm assisting us with the solicitation of proxies at:
By Order
Shareholders in the US or Canada may call toll-free at: (877) 717-3898
Shareholders in other locations may dial: +1 412-232-3651
Banks and brokers may call collect at: (212) 750-5833
Important Notice Regarding the Availability of Proxy Materials for the Board of Directors,Annual Meeting to Be Held onJune 24, 2022 at 9:00 a.m. local time at 399 Thornall Street, First Floor, Edison, NJ 08837.
The proxy statement and annual report to stockholders are available at
| By the Order of the Board of Directors |
| |
| /s/ GARY S. JACOB
Gary S. Jacob
|
| Gary S. Jacob |
| Chairman of the Board of Directors | |
Edison, New JerseyDated: April 29, 2022
October 27, 2017
Whether or not you expect to attend the Annual Meeting in person, we urge you to vote your shares at your earliest convenience. This will ensure the presence of a quorum at the Annual Meeting. Promptly voting your shares will save the Company the expenses and extra work of additional solicitation. An addressed envelope for which no postage is required if mailed in the United States is enclosed if you wish to vote by mail. Submitting your proxy now will not prevent you from voting your shares at the Annual Meeting if you desire to do so, as your proxy is revocable at your option. Your vote is important, so please act today!
Your vote is important. Please vote your shares whether or not you plan to attend the meeting.
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399 Thornall Street, First Floor
Edison, New JerseyNJ 08837
PROXY STATEMENT FOR THE 2017
2022 ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER 13, 2017June 24, 2022
This proxy statement is furnished to holders of common stock of ContraVir Pharmaceuticals Inc., a Delaware corporation (“we,” “us,” “our,” “ContraVir” or the “Company”), in connection with the solicitation of proxies by ourThe board of directors (our “Board”(the “Board”) for useof Hepion Pharmaceuticals, Inc. (“Hepion” or the “Company”) is soliciting your proxy to vote at our 2017the Annual Meeting of Stockholders (the “Annual Meeting”“Annual Meeting”) to be held on December 13, 2017 at 9:00 a.m., local time, at the Company’sour offices, located at 399 Thornall Street, First Floor, Edison, New Jersey 08837. NJ 08837, on June 24 This proxy statement is being distributed, 2022, at 9:00 a.m. local time, including at any adjournments or made available, aspostponements of the case may be, to stockholders on or about October 27, 2017.
Annual Meeting. You are invited to attend the Annual Meeting to vote on the proposals described in this proxy statement. However, you do not need to attend the meetingAnnual Meeting to vote your shares. Instead, you may simply complete, sign and return the enclosed proxy card if you received paper copies of the proxy materials, or follow the instructions below to submit your proxy over the Internet.
Our Board is asking you to vote your shares by completing, signing and returning the accompanying proxy card. If you attend the Annual Meeting in person, you may vote at the Annual Meeting even if you have previously returned a proxy card. Please note, however, that if your shares are held of record by a broker, bank or other nominee and you wish to vote at the Annual Meeting, you must obtain a proxy issued in your name from that record holder as described in more detail below.
IMPORTANT NOTICE REGARDING THE INTERNET AVAILABILITY OF PROXY MATERIALS FOR THE ANNUAL STOCKHOLDERS MEETING TO BE HELD ON DECEMBER 13, 2017: This proxy statement, the accompanying proxy card or voting instruction card and our 2017 Annual Report on Form 10-K are also available at www.pstvote.com/contravir2017.
GENERAL INFORMATION ABOUT THE ANNUAL MEETING AND VOTING
QUESTIONS AND ANSWERS ABOUT THIS PROXY MATERIAL AND VOTING
What is a proxy?
A proxy is the legal designation of another person to vote the stock you own. That other person is called a proxy. If you designate someone as your proxy in a written document, that document is also called a proxy or a proxy card. By completing, signing and returning the accompanying proxy card, you are designating James SapirsteinRobert Foster, Ph.D. and John Cavan, our Chief Executive Officer and Chief Financial Officer, respectively, as your proxies for the Annual Meeting and you are authorizing Messrs. SapirsteinDr. Foster and Mr. Cavan to vote your shares at the Annual Meeting as you have instructed them on the proxy card. This way, your shares will be voted whether or not you attend the Annual Meeting. Even if you plan to attend the Annual Meeting, we urge you to vote in one of the ways described below so that your vote will be counted even if you are unable or decide not to attend the Annual Meeting.
What is a proxy statement?
A proxy statement is a document that we are required by regulations of the Securities and Exchange Commission, or “SEC,,” to give you when we ask you to sign a proxy card designating Messrs. SapirsteinDr. Foster and Mr. Cavan as proxies to vote on your behalf.
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Why did you send me this proxy statement?How do I attend the Annual Meeting?
We sentThe Annual Meeting will be held on June 24, 2022, at 9:00 a.m. local time at our offices, located at 399 Thornall Street, First Floor, Edison, NJ 08837. Directions to the Annual Meeting may be found at the back of this Proxy Statement. Information on how to vote in person at the Annual Meeting is discussed below.
Who May Attend the Annual Meeting?
Only record holders and beneficial owners of our common stock, or their duly authorized proxies, may attend the Annual Meeting. If your shares of common stock are held in street name, you this proxywill need to bring a copy of a brokerage statement andor other documentation reflecting your stock ownership as of the enclosed proxy card because ourRecord Date.
Who is Entitled to Vote?
The Board is soliciting your proxyhas fixed the close of business on April 26, 2022 as the record date (the “Record Date”) for the determination of stockholders entitled to notice of, and to vote at, the 2017 Annual Meeting of stockholders. This proxy statement summarizes information related to your vote at the Annual Meeting. All stockholders who find it convenient to do so are cordially invited to attend the Annual Meeting in person. However, you do not need to attend the meeting to vote your shares. Instead, you may simply complete, sign and return the enclosed proxy card.
We intend to begin making this proxy statement, the attached notice of Annual Meeting and the enclosed proxy card available on or about October 27, 2017 to all stockholders of record entitled to vote at the Annual Meeting.any adjournment or postponement thereof. Only stockholdersstockholder who owned our common stock on October 27, 2017April 26, 2022 are entitled to vote at the Annual Meeting.Meeting. In addition, on October 27, 2017 April 26, 2022 there were 104,01385,581 shares of Series A Preferred Stock issued and outstanding. Each share of Series A Preferred Stock is entitled to vote on any matter with the holders of Common Stockcommon stock on an as converted basis. On the record date,Record Date, there were 80,445,84076,229,617 shares of our common stock outstanding (including 2,166,934 3,184 shares of common stock issuable upon conversion of the Series A Preferred Stock).
Why did I Receive
What is the Difference Between Holding Shares as a Record Holder and as a Beneficial Owner (Holding Shares in the Mail a Notice of Internet Availability of Proxy Materials this Year instead of a Full Set of Proxy Materials?Street Name)?
WeIf your shares are pleased to take advantageregistered in your name with our transfer agent, Philadelphia Stock Transfer, Inc., you are the “record holder” of the SEC rule that allows companies to furnish their proxy materials over the Internet. Accordingly, we have sent to our stockholders of record a Notice of Internet Availability of Proxy Materials. Instructions on how to access the proxy materials over the Internet or to request a paper copy may be found in the Notice. Our stockholders may request to receive proxy materials in printed form by mail or electronically on an ongoing basis. A stockholder’s election to receive proxy materials by mail or electronically by email will remain in effect until the stockholder terminates its election.
Why did I Receive a Full Set of Proxy Materials in the Mail instead of a Notice of Internet Availability of Proxy Materials?
We are providing paper copies of the proxy materials instead of a Notice to our beneficial owners or stockholders of record who have previously requested to receive paper copies of our proxy materials.those shares. If you are a beneficial ownerrecord holder, these proxy materials have been provided directly to you by the Company.
If your shares are held in a stock brokerage account, a bank or other holder of record, you are considered the “beneficial owner” of those shares held in “street name.” If your shares are held in street name, these proxy materials have been forwarded to you by that organization. The organization holding your account is considered to be the stockholder of record who received a paper copyfor purposes of voting at the proxy materials, andAnnual Meeting. As the beneficial owner, you would likehave the right to reduce the environmental impact and the costs incurred by us in mailing proxy materials, you may electinstruct this organization on how to receive all future proxy materials electronically via email or the Internet. You can choose to receive future proxy materials electronically by visiting http://www.pstvote.com/contravir2017. Your choice to receive proxy materials electronically will remain in effect until you instruct us otherwise by following the instructions contained invote your Notice and visiting http://www.pstvote.com/contravir2017, sending an electronic mail message to info@philadelphiastocktransfer.com, or calling 1-866-223-0448.shares.
What am I voting on?
There are four proposalsfive (5) matters scheduled for a vote:
| 1. | To elect six (6) members to our Board to hold office until the 2023 Annual Meeting; |
Proposal 1: Election of seven (7) Directors:
| 2. | To ratify the appointment of BDO USA, LLP as our independent registered public accounting firm for our fiscal year ending December 31, 2022; |
| 3. | To consider an act upon a proposal to approve the Company’s 2022 Omnibus Equity Incentive Plan (the “2022 Plan”); |
| 4. | To amend our certificate of incorporation, as amended, to increase the number of shares of authorized common stock from 120,000,000 to 200,000,000;” and |
| 5. | To conduct an advisory vote to approve the compensation of the Company’s named executive officers, referred to as “say-on-pay;” |
What if another matter is properly brought before the Annual Meeting?
·Gary S. Jacob, Ph.D.The Board knows of no other matters that will be presented for consideration at the Annual Meeting. If any other matters are properly brought before the Annual Meeting, it is the intention of the persons named in the accompanying proxy to vote on those matters in accordance with their best judgment.
·
How Do I Vote?
James Sapirstein R.Ph.Stockholders of Record
·For your convenience, record holders of our common stock have three methods of voting:
| 1. | Vote by Internet. The website address for Internet voting is on your proxy card. |
| 2. | Vote by mail. Mark, date, sign and promptly mail the enclosed proxy card (a postage-paid envelope is provided for mailing in the United States). |
| 3. | Vote in person. Attend and vote at the Annual Meeting. |
John P. BrancaccioBeneficial Owners of Shares Held in Street Name
·Thomas Adams, Ph.D.For your convenience, beneficial owners of our common stock have three methods of voting:
| 1. | Vote by Internet. The website address for Internet voting is on your vote instruction form. |
| 2. | Vote by mail. Mark, date, sign and promptly mail your vote instruction form (a postage-paid envelope is provided for mailing in the United States). |
| 3. | Vote in person. Obtain a valid legal proxy from the organization that holds your shares and attend and vote at the Annual Meeting. |
If you vote by Internet, please DO NOT mail your proxy card.
·Dr. Timothy BlockAll shares entitled to vote and represented by a properly completed and executed proxy received before the Annual Meeting and not revoked will be voted at the Annual Meeting as instructed in a proxy delivered before the Annual Meeting. If you do not indicate how your shares should be voted on a matter, the shares represented by your properly completed and executed proxy will be voted as the Board recommends on each of the enumerated proposals, with regard to any other matters that may be properly presented at the Annual Meeting and on all matters incident to the conduct of the Annual Meeting. If you are a registered stockholder and attend the Annual Meeting, you may deliver your completed proxy card in person. If you are a street name stockholder and wish to vote at the Annual Meeting, you will need to obtain a proxy form from the institution that holds your shares. All votes will be tabulated by the inspector of elections appointed for the Annual Meeting, who will separately tabulate affirmative and negative votes, abstentions and broker non-votes.
·Arnold Lippa, Ph.DWe provide Internet proxy voting to allow you to vote your shares online, with procedures designed to ensure the authenticity and correctness of your proxy vote instructions. However, please be aware that you must bear any costs associated with your Internet access, such as usage charges from Internet access providers and telephone companies.
·Tamar Howson
Proposal 2:Ratification of the appointment of BDO USA, LLP as the Company’s independent registered public accountant for the fiscal year ending June 30, 2018.
Proposal 3: To approve an amendment to the Company’s 2013 Equity Incentive Plan (the “2013 Plan”) to increase the reservation of common stock for issuance thereunder to 10,700,000 shares from 7,700,000 shares.
How many votesMany Votes do I have?Have?
Each share of our common stock (including shares of common stock issuable upon conversion of Series A Preferred Stock) that you own as of October 27, 2017April 26, 2022 entitles you to one vote.
How do I vote by proxy?Is My Vote Confidential?
With respect to the election of directors, you may either vote “For” all the nominees to the Board or you may “Withhold”Yes, your vote is confidential. Only the inspector of elections, individuals who help with processing and counting your votes and persons who need access for any nominee you specify. For the ratification of the appointment of BDO USA, LLPlegal reasons will have access to your vote. This information will not be disclosed, except as the Company’s independent registered public accountant for the fiscal year ending June 30, 2018 you may vote “For, “Against” or “Abstain” from voting. With respect to the amendment to the Company’s 2013 Equity Incentive Plan, you may vote “For”, “Against” or “Abstain” from voting.required by law.
Stockholders of Record: Shares Registered in Your Name
What Constitutes a Quorum?
If you are a stockholder of record, you may vote in personTo carry on business at the Annual Meeting, or vote by proxy usingwe must have a quorum. A quorum is present when one-third (1/3) of the enclosed proxy card. Whether or not you plan to attend the meeting, we urge youshares entitled to vote by proxy to ensure that your vote is counted. You may still attend the meeting and vote in person even if you have already voted by proxy. To vote in person, come to the Annual Meeting and we will give you a ballot at the Annual Meeting. To vote using the proxy card, simply complete, sign and date the enclosed proxy card and return it promptly in the envelope provided. If you properly complete your proxy card and send it to us in time to vote, your proxy (oneas of the individuals named on your proxy card) will vote your shares as you have directed. If you sign the proxy card but do not make specific choices, your shares will be, as permitted, voted as recommended by our Board. If any other matter is presented at the Annual Meeting, your proxy (one of the individuals named on your proxy card) will vote in accordance with his or her best judgment. As of the date of this proxy statement, we knew of no matters that needed to be acted on at the meeting, other than those discussed in this proxy statement.
Beneficial Owners: Shares Registered in the Name of a Broker or Bank
If youRecord Date, are a beneficial owner of shares registered in the name of your broker, bank or other agent, you should have received a proxy card and voting instructions with these proxy materials from that organization rather than directly from us. Simply complete and mail the proxy card to ensure that your vote is counted. To vote in person at the Annual Meeting, you must obtain a valid proxy from your broker, bank or other agent. Follow the instructions from your broker or bank included with these proxy materials, or contact your broker or bank to request a proxy form.
May I revoke my proxy?
If you give us your proxy, you may revoke it at any time before it is exercised. You may revoke your proxy in any one of the three following ways:
· you may send in another signed proxy with a later date;
· you may notify us in writing before the Annual Meeting that you have revoked your proxy; or
· you may notify us in writing before the Annual Meeting and vote in person at the meeting.
Can I vote via the Internet?
If your shares are registered in the name of a bank or brokerage firm, you may be eligible to vote your shares electronically over the Internet. A large number of banks and brokerage firms offer Internet voting. If your bank or brokerage firm does not offer Internet voting information, please complete and return your proxy card in the self-addressed, postage-paid envelope provided.
What constitutes a quorum?
The presence at the Annual Meeting,represented in person or by proxy of holders representing a majority of our outstanding common stock (including(including shares of common stock issuable upon conversion of the Series A Convertible Preferred Stock) as of October 27, 2017,. Thus, 25,409,873 shares must be represented in person or approximately 40,222,621 shares, constitutesby proxy to have a quorum at the meeting, permittingAnnual Meeting. Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee) or if you vote in person at the Annual Meeting. Abstentions and broker non-votes will be counted towards the quorum requirement. Shares owned by us are not considered outstanding or considered to conductbe present at the Annual Meeting. If there is not a quorum at the Annual Meeting, either the chairperson of the Annual Meeting or our business.stockholders entitled to vote at the Annual Meeting may adjourn the Annual Meeting.
How Will my Shares be Voted if I Give No Specific Instruction?
We must vote your shares as you have instructed. If there is a matter on which a stockholder of record has given no specific instruction but has authorized us generally to vote the shares, they will be voted as follows:
| 1. | “FOR” the election of each of the six (6) members to our Board to hold office until the 2023 Annual Meeting; |
| 2. | “FOR” the ratification of the appointment of BDO USA, LLP as our independent registered public accounting firm for our fiscal year ending December 31, 2022; |
| 3. | “FOR” the approval of the 2022 Plan ; |
| 4. | “FOR” the amendment to our Certificate of Incorporation, as amended, to increase the number of authorized shares of common stock to 200,000,000 shares from 120,000,000 shares; and |
| 5. | “FOR” the approval of the compensation of the Company’s named executive officers, referred to as “say-on-pay.” |
This authorization would exist, for example, if a stockholder of record merely signs, dates and returns the proxy card but does not indicate how its shares are to be voted on one or more proposals. If other matters properly come before the Annual Meeting and you do not provide specific voting instructions, your shares will be voted at the discretion of the proxies.
If your shares are held in street name, see “What is a Broker Non-Vote?” below regarding the ability of banks, brokers and other such holders of record to vote the uninstructed shares of their customers or other beneficial owners in their discretion.
How are Votes Counted?
Votes will be counted by the inspector of election appointed for the Annual Meeting, who will separately count, for the election of directors, “FOR,” “WITHHOLD” and broker non-votes; and, with respect to the other proposals, votes “FOR” and “AGAINST,” abstentions and broker non-votes.
What is a Broker Non-Vote?
If your shares are held in street name, you must instruct the organization who holds your shares how to vote your shares. If you sign your proxy card but do not provide instructions on how your broker should vote on “routine” proposals, your broker will vote your shares as recommended by the Board. If you do not provide voting instructions, your shares will not be voted on any “non-routine” proposals. This vote is requiredcalled a “broker non-vote.” Because broker non-votes are not considered under Delaware law to approve each proposal?be entitled to vote at the Annual Meeting, broker non-votes will not be included in the tabulation of the voting results of any of the proposals and, therefore, will have no effect on these proposals.
Proposal 1: ElectionBrokers cannot use discretionary authority to vote shares on the election of Directors. For Proposal 1, the seven nominees who receive the most “For” votes (among votes properly cast in person or by proxy) will be elected. Only votes “For” or “Withheld” will affect the outcome.directors if they have not received instructions from their clients. Please submit your vote instruction form so your vote is counted.
Proposal 2: Ratification of Independent Registered Public Accounting Firm. To be approved, Proposal 2 must receive “For” votes from the holders of
What is an Abstention?
An abstention is a majority of thestockholder’s affirmative choice to decline to vote on a proposal. Under Delaware law, abstentions are counted as shares of Common Stock present or represented by proxy and entitled to vote at the Annual Meeting.
Proposal 3: Amendment to Increase Reserve under 2013 Plan. To be However, generally, our By-Laws provide that an action of our stockholders (other than the election of directors) is only approved Proposal 3 must receive “For” votes from the holders of a majorityif one-third (1/3) of the number of shares of Common Stockstock present or represented by proxy and entitled to vote at the annual meeting.thereat vote in favor of such action.
How Many Votes are Needed for Each Proposal to Pass?
| Proposal | Vote Required |
| Election of each of the six (6) members to our Board | Plurality of the votes cast (the six directors receiving the most “FOR” votes) |
| |
| Ratification of the Appointment of BDO USA, LLP as our Independent Registered Public Accounting Form for our Fiscal Year Ending December 31, 2022 | A majority of the votes entitled to vote thereon and present at the Annual Meeting |
| |
| Approval of the Company’s 2022 Omnibus Equity Incentive Plan (the “2022 Plan”) | A majority of the votes entitled to vote thereon and present at the Annual Meeting |
| |
| Approval of an amendment to the Company’s Certificate of Incorporation, as amended, to increase the number of authorized shares of common stock to 200,000,000 shares from 120,000,000 shares | The affirmative vote of the holders of a majority of the outstanding shares of our common stock |
| |
| Approval of the Company’s executive compensation, referred to as “Say-on-Pay” | A majority of the votes entitled to vote thereon and present at the Annual Meeting |
What Are the Voting results will be tabulated and certified by our mailing and tabulating agent, Philadelphia Stock Transfer, Inc.Procedures?
What areIn voting by proxy with regard to the Board’s recommendations?election of directors, you may vote in favor of all nominees, withhold your votes as to all nominees, or withhold your votes as to specific nominees. With regard to other proposals, you may vote in favor of or against the proposal, or you may abstain from voting on the proposal.
The recommendations of our Board are set forth together with the description of each proposal in this proxy statement. In summary, our Board recommends a vote:
·“FOR” election of the directors named in this proxy statement as described in Proposal 1;
·“FOR” approval of BDO USA, LLP as the independent registered public accounting firm of the Company for the fiscal year ending June 30, 2018 as described in Proposal 2; and
·“FOR” an amendment to the Company’s 2013 Plan to increase the reservation of common stock for issuance thereunder to 10,700,000 shares from 7,700,000 shares as described in Proposal 3.
How can I attend the Annual Meeting?Is My Proxy Revocable?
You may attend the Annual Meeting if you are listed as a stockholder of record as of October 27, 2017revoke your proxy and bring proof ofreclaim your identity. If you hold your shares in street name through a broker or other nominee, you will need to provide proof that you are the beneficial owner of the shares by bringing either a copy of a brokerage statement showing your share ownership as of October 27, 2017, or a legal proxy if you wishright to vote at any time before your sharesproxy is voted by giving written notice to the Secretary of Hepion, by delivering a properly completed, later-dated proxy card or vote instruction form or by voting in person at the Annual Meeting. All written notices of revocation and other communications with respect to revocations of proxies should be addressed to: 399 Thornall Street, First Floor, Edison, NJ 08837, Attention: Secretary, or by facsimile at 732-902-4100. Your most current proxy card or Internet proxy is the one that will be counted.
Who is Paying for the Expenses Involved in Preparing and Mailing this Proxy Statement?
All of the expenses involved in preparing, assembling and mailing these proxy materials and all costs of soliciting proxies will be paid by us. In addition to the items mentioned above, you should bring proofsolicitation by mail, proxies may be solicited by our officers and other employees by telephone or in person. Such persons will receive no compensation for their services other than their regular salaries. Arrangements will also be made with brokerage houses and other custodians, nominees and fiduciaries to forward solicitation materials to the beneficial owners of your identity.the shares held of record by such persons, and we may reimburse such persons for reasonable out of pocket expenses incurred by them in forwarding solicitation materials. We have retained Innisfree M&A Incorporated as our strategic shareholder advisor and proxy solicitation agent in connection with the solicitation of proxies for the Meeting.
If you have any questions or require any assistance with completing your proxy, please contact Innisfree M&A Incorporated at:
Shareholders in the US or Canada may call toll-free at: (877) 717-3898
Shareholders in other locations may dial: +1 412-232-3651
Banks and brokers may call collect at: (212) 750-5833
Do I Have Dissenters’ Rights of Appraisal?
Our stockholders do not have appraisal rights under Delaware law or under our governing documents with respect to the matters to be voted upon at the Annual Meeting.
How can I vote my shares in personFind out the Results of the Voting at the Annual Meeting?
Shares held directly in your name as the stockholder of record may be voted in person at the Annual Meeting. If you choose to do so, please bring proof of your identity to the Annual Meeting. Shares held in street name beneficially owned may be voted by you if you receive and present at the Annual Meeting a proxy from your broker or nominee, together with proof of your identity. Even if you plan to attend the Annual Meeting, we urge you to vote in one of the ways described below so that your vote will be counted if you are unable or decide not to attend the Annual Meeting. Attendance at the Annual Meeting will not cause your previously granted proxy to be revoked unless you change your proxy instructions as described below.
How can I vote my shares without attending the Annual Meeting?
Whether you hold shares directly as the stockholder of record or beneficially in street name, you may direct your vote without attending the Annual Meeting. You may vote by granting a proxy or, for shares held in street name, by submitting voting instructions to your broker or nominee. In most instances, you will be able to do this over the Internet or by mail. Please refer to the summary instructions below, and if you request printed proxy materials, the instructions included on your proxy card or, for shares held in street name, the voting instruction card provided by your broker or nominee.
·By Internet—If you have Internet access, you may submit your proxy from any location in the world by following the Internet voting instructions on the proxy card or voting instruction card sent to you.
·By Mail—You may do this by marking, dating and signing your proxy card or, for shares held in street name, the voting instruction card provided to you by your broker or nominee, and mailing it in the enclosed, self-addressed, postage prepaid envelope. No postage is required if mailed in the United States
What is a broker non-vote?
A broker non-vote occurs if you hold shares in “street name” and do not provide voting instructions to your broker on a proposal and your broker does not have the discretionary authority to vote on such proposal. Matters subject to stockholder vote are classified as “routine” or “non-routine.” In the case of non-routine matters, brokers may not vote shares held in “street name” for which they have not received voting instructions from the beneficial owner (“Broker Non-Votes”), whereas they may vote those shares in their discretion in the case of any routine matter. Broker Non-Votes will be counted for purposes of calculating whether a quorum is present at the stockholder meetings, but will not be counted for purposes of determining the numbers of votes present in person or represented by proxy and entitled to vote with respect to a particular proposal. A broker is entitled to vote shares held for a beneficial holder on routine matters, such as Proposal 2 (the ratification of the appointment of BDO USA, LLP as our independent registered public accountants for 2018), without instructions from the beneficial holder of those shares. On the other hand, absent instructions from the beneficial holders of such shares, a broker will not be entitled to vote shares held for a beneficial holder on certain non-routine items, such as Proposal 1 (election of directors) and Proposal 3 (increase in reservation of common stock under 2013 Plan). Broker Non-Votes for Proposal 1 and Proposal 3 will have the same effect as an “AGAINST” vote. It is therefore important that you provide instructions to your broker if your shares are held by a broker so that your vote may be recorded. Votes cast by proxy or in person at the stockholder meetings will be tabulated by the inspectors of election appointed for the stockholder meetings, who also will determine whether a quorum is present.
What is the effect of abstentions and broker non-votes?
Shares of common stock held by persons attending the Annual Meeting but not voting, and shares represented by proxies that reflect abstentions as to a particular proposal, will be counted as present for purposes of determining the presence of a quorum. Abstentions are treated as shares present in person or by proxy and entitled to vote, so abstaining has the same effect as a negative vote for purposes of determining whether our stockholders have approved each of the proposals.
Shares represented by proxies that reflect a “broker non-vote” will be counted for purposes of determining whether a quorum exists. A “broker non-vote” occurs when a nominee holding shares for a beneficial owner has not received instructions from the beneficial owner and does not have discretionary authority to vote the shares for certain non-routine matters. Because the election of directors is determined by a plurality of votes cast by a majority of the outstanding shares entitled to vote, abstentions will not be counted in determining the outcomes of such proposal.
What does it mean if I receive more than one set of proxy materials?
If you receive more than one set of proxy materials, your shares may be registered in more than one name or in different accounts. Please complete, sign and return each proxy card to ensure that all of your shares are voted.
I share the same address with another shareholder of the Company. Why has our household only received one set of proxy materials?
The SEC’s rules permit us to deliver a single set of proxy materials to one address shared by two or more of our shareholders. This practice, known as “householding,” is intended to reduce our printing and postage costs. We have delivered only one set of proxy materials to shareholders who hold their shares through a bank, broker or other holder of record and share a single address, unless we received contrary instructions from any shareholder at that address. However, any such street name holder residing at the same address who wishes to receive a separate copy of the proxy materials may make such a request by contacting the bank, broker or other holder of record.
Who is paying the costs of soliciting these proxies?
We will pay for the entire cost of soliciting proxies. In addition to these mailed proxy materials, our directors and employees may also solicit proxies in person, by telephone or by other means of communication. Directors and employees will not be paid any additional compensation for soliciting proxies but may be reimbursed for out-of-pocket expenses incurred in connection with the solicitation. We will also reimburse brokerage firms, banks and other agents for their reasonable out-of-pocket expenses incurred in forwarding proxy materials to beneficial owners.
How can I find out the results of the voting at the Annual Meeting?
Preliminary voting results will be announced at the Annual Meeting. FinalIn addition, final voting results will be publisheddisclosed in our current reporta Current Report on Form 8-K that we expect to be filedfile with the SEC within four business days after the Annual Meeting. If final voting results are not available to us in time to file a Form 8-K with the SEC within four business days after the meeting,Annual Meeting, we intend to file a Form 8-K to publish preliminary results and, within four business days after the final results are known to us, file an additional Form 8-K to publish the final results.
When are Stockholder Proposals Due for the 20182022 Annual Meeting?
Any appropriate proposal submitted by a stockholder and intended to be presented at the 20182023 Annual Meeting of Stockholders (the “2018“2023 Annual Meeting”) must be submitted in writing to the Company’s Secretary at 399 Thornall Street, First Floor, Edison, NJ 08873,08837 and received no later than June 30, 2018,March 26, 2023, and no earlier than February 25, 2023 to be includable in the Company’s proxy statement and related proxy for the 20182023 Annual Meeting. However, if the date of the 20182023 Annual Meeting is convened more than 30 days before, or delayed by more than 30 days after, December 13, 2018,June 24, 2023, to be considered for inclusion in proxy materials for our 20182023 Annual Meeting, a stockholder proposal must be submitted in writing to the Company’s Secretary at 399 Thornall Street, First Floor, Edison, NJ 08873,08837, a reasonable time before we begin to print and send our proxy materials for the 20182023 Annual Meeting. A stockholder proposal will need to comply with the SEC regulations under Rule 14a-8 of the Securities Exchange Act of 1934, as amended
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(the “Exchange Act” (the “Exchange Act”), regarding the inclusion of stockholder proposals in company-sponsored proxy materials. Although the Board will consider stockholder proposals, we reserve the right to omit from our proxy statement, or to vote against, stockholder proposals that we are not required to include under the Exchange Act, including Rule 14a-8.
If you wish to submit a proposal that is not to be included in the proxy materials for the 2018 Annual Meeting, your proposal must be submitted in writing to the Company’s Secretary at 399 Thornall Street, First Floor, Edison, NJ 08873 by no later than September 14, 2018 and not prior to August 15, 2018. However, if the date of the 2018 Annual Meeting is convened more than 25 days before, or delayed by more than 25 days after, December 13, 2018, to be brought before our 2018 Annual Meeting, a stockholder proposal must be submitted in writing to the Company’s Secretary at 399 Thornall Street, First Floor, Edison, NJ 08873, no later than the close of business on the 10th day following the date on which such notice of the date of the annual meeting was mailed or the public disclosure of the date of the annual meeting was made, whichever first occurs.
ELECTION OF DIRECTORSPROPOSAL 1
The Company’s By-laws currently specify thatELECTION OF DIRECTORS
At the numberAnnual Meeting, the stockholders will elect six (6) directors to hold office until the 2023 Annual Meeting. Directors are elected by a plurality of votes cast by stockholders. In the event the nominees are unable or unwilling to serve as directors shall consistat the time of one or more members, the exact number of which shall initiallyAnnual Meeting, the proxies will be fixed from time to timevoted for any substitute nominees designated by the present Board of Directors (the “Board”). The Company’s Board currently consists of seven (7) persons, all of whom have been nominated by ContraViror the proxy holders to standfill such vacancy, or for re-election. Each director is elected or nominated to the Board until the following annual meeting of stockholders and until his successor has been elected and qualified or until the director’s earlier resignation or removal.
The Board based on the recommendation of the Nominating and Corporate Governance Committee has nominated Gary S. Jacob, James Sapirstein, John P. Brancaccio, Thomas Adams, Timothy Block, Arnold Lippa and Tamar Howson for election as directors of ContraVir. Allbalance of the nominees are existing directorsnamed without nomination of ContraVir and eacha substitute, or the size of the nomineesBoard will be reduced in accordance with the Bylaws of the Company. The Board has consentedno reason to beingbelieve that the persons named as a nominee for director of ContraVir and has agreedbelow will be unable or unwilling to serve as nominees or as directors if elected.
Set forth below areAssuming a quorum is present, the six (6) nominees receiving the highest number of affirmative votes of shares entitled to be elected to serve until the 2018 annual meeting of stockholders or until their respective successors have been duly elected and qualified.
Tovoted for such persons will be elected as a director, each nominee must receive a pluralitydirectors of the votes cast by the holders of our common stock.
Should any nominee become unable or unwillingCompany to accept election, the proxy holders may vote theserve for a one-year term. Unless marked otherwise, proxies forreceived will be voted “FOR” the election in his or her stead, of any other person our Board may nominate or designate.the nominees named below. In the event that additional persons are nominated for election as directors, the proxy holders intend to vote all proxies received by them in such a manner as will ensure the election of the nominees listed below, and, in such event, the specific nominees to be voted for will be determined by the proxy holders.
Information with Respect to Director Nominees
Listed below are the current directors who are nominated to hold office until their successors are elected and qualified.qualified, and their ages as of April 26, 2022.
Name |
| Age | | Present Position with ContraVir Pharmaceuticals, Inc.
|
Gary S. Jacob, Ph.D. | 70
| | Chairman of the Board of Directors
75 |
James Sapirstein
Robert Foster, Ph.D. | 56
| | Chief Executive Officer and Director
63 |
John P. Brancaccio | 69
| | Director
74 |
Timothy Block, Ph.D. | 62
| | Director
67 |
Arnold Lippa, Ph.D. | 70
| | Director
75 |
Thomas Adams
Petrus “Peter” Wijngaard, Ph.D. | 74
| | Director
|
Tamar Howson
| 69
| | Director
59 |
Biographical Information
Gary S. Jacob, Ph.D. has served as our Chairman of the Board of Directors since March 19, 2014, and earlier served as our Chief Executive Officer from May 15, 2013 until March 19, 2014. Since January 2021, Dr. Jacob is currentlyhas been Chief Executive Officer and a director of OKYO Pharma Limited, a biotechnology company focused on the discovery and development of novel molecules to treat inflammatory dry eye diseases and ocular neuropathic pain. From November 2018 to March 2020, Dr. Jacob was the Chief Executive Officer of Immuron Limited, an Australian microbiome biopharmaceutical company. Previously, Dr. Jacob was Chairman of the Board, President and Chief Executive Officer of Synergy Pharmaceuticals Inc., a biopharmaceutical company, where he has held various positions sincefrom July 2008.2008 to November 2018. On December 12, 2018, Synergy Pharmaceuticals Inc. filed a petition for relief under Chapter 11 of the U.S. Bankruptcy Code. Dr. Jacob currently serves as a director of Virpax Pharmaceuticals, Inc. and RASNA Therapeutics, Inc. Dr. Jacob served as a director of Cardiff Oncology, Inc., a clinical-stage oncology therapeutics company, from 2009 to June 2021. Dr. Jacob served as Chief Executive Officer of Callisto Pharmaceuticals, Inc. from May 2003 until January 2013 and a director from October 2004 until January 2013. Dr. Jacob currently serves as a director of Trovagene, Inc., a precision medicine company. Dr. Jacob has over twenty-fivethirty-five years of experience in the pharmaceutical and biotechnology industries across multiple disciplines including research & development, operations and business development. Prior to 1999, Dr. Jacob served as a Monsanto Science Fellow, specializing in the field of glycobiology, and from 1997 to 1998 was Director of Functional Genomics, Corporate Science & Technology, at Monsanto Company. Dr. Jacob also served from 1990 to 1997 as Director of Glycobiology at G.D. Searle Pharmaceuticals Inc. During the period of 1986 to 1990, he was Manager of the G.D. Searle Glycobiology Group at Oxford University, England. Dr. Jacob’sJacob's experience as a biotechnology company chief executive officer provides him with valuable management and leadership abilities which the Board believes qualifies him to be a director of our Company.company.
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James SapirsteinDr. Robert T. Foster has served as Chief Executive Officer since October 3, 2018 and as our Chief Scientific Officer since June 10, 2016. Prior to Hepion, he was Chief Executive Officer and a Director since March 19, 2014. Mr. SapirsteinFounder of Ciclofilin Pharmaceuticals Inc. from January 2014 until it merged with us on June 10, 2016. Prior to Ciclofilin Pharmaceuticals, he founded Isotechnika Pharma Inc. in 1993, where he was the chief executive officerChairman and Chief Executive Officer for 21 years. Dr. Foster was founding Chief Executive Officer and later, Chief Scientific Officer of Alliqua Therapeutics at AlliquaAurinia Pharmaceuticals, Inc., where he helped lead the transformationafter Isotechnika acquired Aurinia. Dr. Foster is currently a Board member of transdermal wound care and drug delivery technology into a wound care organization from October 2012 to February 2014. Mr. Sapirstein was the chiefTranscriptome Sciences Inc. Dr. Foster’s experience as an executive officer of Tobira Therapeutics, a New Jersey based biopharmaceutical company focused on the development of novel HIV and infectious disease compounds, from October 2006 to April 2011. From June 2002 until May 2005, Mr. Sapirstein was Executive Vice President for Serono Laboratories. Mr. Sapirstein is a director of Panther Biotechnology, Inc.,at a biotechnology company and RespireRx Pharmaceuticals, Inc., a biotechnology company. Mr. Sapirstein’s experiencehis background as a biotechnology executivescientist provides him with the leadership and management abilities which the Board believes qualifies him to serve asbe a director of our Company.
John P. Brancaccio,a retired CPA, has served as a director of our Company since May 15, 2013 and as a director of Synergy Pharmaceuticals, Inc. since July 2008.2013. From April 2004 until May 2017, Mr. Brancaccio was the Chief Financial Officer of Accelerated Technologies, Inc., an incubator for medical device companiescompanies. Mr. Brancaccio served as a director for Callisto Pharmaceuticals, Inc. from April 2004 until 2017. From May 2002 until March 2004, Mr. Brancaccioits merger with Synergy Pharmaceuticals, Inc. in January 2013 and was the Chief Financial Officer of Memory Pharmaceuticals Corp., a biotechnology company. From 2000 to 2002, Mr. Brancaccio was the Chief Financial Officer/Chief Operating Officer of Eline Group, an entertainment and media company. Mr. Brancaccio is currentlyformerly a director of Tamir Biotechnology, Inc. (formerly Alfacell Corporation) as wellsince April 2004 until May 2020. He is also a director of Cardiff Oncology, Inc. since December 2013, Rasna Therapeutics, Inc. since September 2016, OKYO Pharma Limited since June 2020,Tiziana Life Sciences plc since July 2020 and AccuStem Sciences, Inc. since July 2020. Mr. Brancaccio served as a director of Trovagene, Inc. and Rasna Therapeutics, Inc., a biotechnology company.Synergy from July 2008 until April 2019. The Board believes that Mr. Brancaccio’s experience as a chief financial officer experience provides him with valuable financial and accounting expertise which the Board believesthat qualifies him to serve as a director of our Company.company.
Dr. Timothy Blockhas served as a director of our Company since November 26, 2013. Dr. Block is Professor of Microbiology and Immunology, Drexel University College of Medicine and Director of its Drexel Institute for Biotechnology and Virology Research, and is also the Co-founder and President of the Hepatitis B Foundation (HBF) and its Baruch S. Blumberg Institute (formerly called the Institute for Hepatitis and Virus Research). Dr. Block is also President and CEO of the Pennsylvania Biotechnology Center. Dr. Block has been a member of medical school faculties as a professional researcher for more than 28 years, publishing more than 180 papers, 12 U.S. patents, and since 2006, has led or “co-led” more than $50 million in research funding. Honors include an honorary Medical Doctorate (Bulgarian Academy of Medicine); the Lifetime Achievement Award from the Centrals Bucks Chamber of Commerce; named one of the regions 100 Most Outstanding People of the Century by the Daily Intelligencer; Distinguished Service Recognition from the National Cancer Institute’s Early Detection Research Network; and a Special Citation from the U.S. House of Representatives in recognition of “outstanding achievements.” Dr. Block has given frequent testimony to the U.S. Congress and State legislatures; has served on U.S. FDA and numerous NIH panels as well as commercial boards including the Bristol Myers Squibb Entecavir Advisory Board. In 2009, Dr. Block was named an elected Fellow of the American Association for the Advancement of Science (AAAS). Dr. Block’s experience and expertise in the medical field with respect to Hepatitis B qualifies him to serve as a director of our Company.
Arnold Lippa, Ph.D.has served as a director of our company since December 3, 2015. Dr. Lippa has been Executive Chairman of the Board of RespireRx Pharmaceuticals Inc., since March 2013, and was appointed Chief Scientific Officer in August 2015. Previously, he served as Chief Executive Officer and President. He is also Chairman of the Board of Xintria Pharmaceutical Corporation, which he co-founded in 2006. Dr. Lippa is a Managing Member and founder of T Morgen Capital LLC, which is an investment and management company specializing in the creation and management of biomedical companies. Since 2005, T Morgen Capital has been a significant equity owner and a managing member of Aurora Capital LLC, a life science focused FINRA member firm, where Dr. Lippa represents T Morgen Capital as a Manager. In 2004, Dr. Lippa co-founded and currently is representing T Morgen Capital, a Managing Member, as a Manager of Atypical BioCapital Management LLC and Atypical BioVentures Fund LLC, a life science fund management company and fund, respectively, both of which are affiliates of Aurora Capital. Dr. Lippa was a founder of DOV Pharmaceutical, Inc., and served as Chairman of the Board and Chief Executive Officer from its inception in April 1995 until 2005. Prior to DOV, Dr. Lippa co-founded and co-managedco- managed a number of life sciences companies, including Praxis Pharmaceuticals, Inc., which he co-founded and took public in 1985, serving as President and Chief Operating Officer from 1984 until 1987. Dr. Lippa’s experience as a biotechnology company executive and a financier qualifies him to be a director of our Company.
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Thomas Adams,Petrus “Peter” Wijngaard, Ph.D.has served as a director of our company since June 10, 2020. Dr. Wijngaard most recently served as Executive Vice President, Chief Development Officer at The Medicines Company since September 2016.(“MDCO”), where he led the overall development and global medical affairs activities for hypercholesterolemia drug candidate, inclisiran. Dr. Adams has been ChairmanWijngaard was instrumental in Novartis’ US $9.7 billion acquisition of MDCO that was completed in January 2020. Previously, Dr. Wijngaard led European Medical Affairs and Development at Viropharma Inc. (which was subsequently acquired by Shire Pharmaceuticals in 2013 and is now part of The Takeda Pharmaceutical Company Limited) and held various positions at Hoffmann-La Roche, including International Medical Manager and Lifecycle Leader for the transplantation portfolio, as well as managing the Genentech alliance as Global Alliance Director. He served on the Board of Trovagene, Inc.,Directors of Isotechnika Pharmaceuticals, Aurinia Pharmaceuticals and Ciclofilin Pharmaceuticals, which was acquired by Hepion in 2016. As an author of more than 50 scientific articles, Dr. Wijngaard has published extensively on transplant immunology and immunosuppression. He has a precision medicine company, since April 2009. Dr. Adams has served asPh.D. in Transplantation Immunology from Utrecht University, the Chairman of Clearbridge BioPhotonics, Inc., an imaging solutions company, since April 2013. From June 2005 through 2011, Dr. Adams servedNetherlands.
Family Relationships and Other Arrangements
There are no family relationships among our directors and executive officers. There are no arrangements or understandings between or among our executive officers and directors pursuant to which any director or executive officer was or is to be selected as a director of IRIS International, Inc., a diagnostics company, and has served as Chief Technology Officer of IRIS since April 2006. Dr. Adams was the Head of Iris Molecular Diagnostics from 2006 until November 2012 and has served as the President of Iris Personalized Medicine since 2011. In November 2012, IRIS was acquired by Danaher Corporation. Dr. Adams served as Chairman and Chief Executive Officer of Leucadia Technologies, a privately held medical-device company, from 1998 to April 2006, when Leucadia was acquired by IRIS. In 1989, Dr. Adams founded Genta, Inc., a publicly held biotechnology company in the field of antisense technology, and served as its Chief Executive Officer until 1997. Dr. Adams founded Gen-Probe, Inc. in 1984 and served as its Chief Executive Officer and Chairman until its acquisition by Chugai Biopharmaceuticals, Inc. in 1989. Dr. Adams has served as a director of Synergy Pharmaceuticals Inc., a biotechnology company, since July 2009. Dr. Adams holds a Ph.D. in Biochemistry from the University of California, at Riverside. The Board believes that Dr. Adams’or executive leadership, particularly in the diagnostic field, and the extensive healthcare expertise he has developed qualifies Dr. Adams to serve as a director of our Company.officer.
Tamar Howson has served as a director of the Company since December 2016. Since September 2011, Ms. Howson has served as Principal of Howson Associates and from January 2009 until December 2011 she served as Senior Advisor of JSB-Partners. From April 2007 until October 2008, Ms. Howson served as Senior Vice President of Corporate Development at Lexicon Pharmaceuticals and from December 2001 until February 2007 she served as Senior Vice President of Corporate and Business Development at Bristol-Myers Squibb Company. From April 1991 until June 2000, Ms. Howson served as Senior Vice President of Corporate and Business Development at SmithKline Beecham. Ms. Howson earned a B.Sc. in Chemical Engineering from Technion in Haifa, Israel, an M.S. in Chemical Engineering from City College of New York, and an MBA in Finance, International Business and Marketing from Columbia University. The Company believes that Ms. Howson’s experience in corporate and business development qualifies her to serve as a director of our Company.
Board Leadership Structure and Board’s Role in Risk Oversight
We have a separate Chairman of the Board, Dr. Jacob, and Chief Executive Officer, Mr. Sapirstein. We believe that having an independent director serve as our Chairman allows our CEO to focus on our business, while allowing the Chairman to fulfill his fundamental Board leadership role, which includes providing advice to and independent oversight of our Board. As Chairman, Dr. Jacob serves as the primary liaison between the CEO and the independent directors and provides strategic input and counseling to the CEO. With input from other members of the board of directors, committee chairs and management, he presides over meetings of the board of directors. Dr. Jacob has developed an extensive knowledge of our company, its challenges and opportunities and has a productive working relationship with our senior management team.
The board of directors, as a unified body and through committee participation, organizes the execution of its monitoring and oversight roles and does not expect its Chairman to organize those functions. The board of directors has three standing committees – Audit, Compensation and Corporate Governance/Nominating. The membership of each of the board committees is comprised of independent directors, with each of the committees having a separate chairman, each of whom is an independent director. Our non-management members of the board of directors meet in executive session at each board meeting.
Risk is inherent with every business, and how well a business manages risk can ultimately determine its success. Management is responsible for the day-to-day management of the risks the company faces,we face, while the board of directors,Board, as a whole and through its committees, has responsibility for the oversight of risk management. In its risk oversight role, the board of directors has the responsibility to satisfyBoard is responsible for satisfying itself that the risk management processes designed and implemented by management are adequate and functioning as designed.
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The board of directors recognizes that different leadership models may, depending upon individual circumstances, work for other companies and may be appropriate for us under different circumstances. The board ofdirectorsBoard believes that we will be greatly benefited from having a single person settingestablishing the toneright “tone at the top” and directionthat full and open communication between executive management and the Board are essential for our companyeffective risk management and having primary responsibility for managing its operations, while allowing the board of directors to carry out its oversight responsibilities with the full involvement of each independent director.oversight. Our CEO communicates frequently with members of the boardBoard to discuss strategy and challenges facing theour company. Senior management usually attends our regular quarterly boardBoard meetings and is available to address any questions or concerns raised by the board of directorsBoard on risk management-related and any other matters. Each quarter, the board of directorsBoard receives presentations from senior management on matters involving our key areas of operations.
Information RegardingDirector Independence
Our Board has determined that a majority of the Board consists of Directorsmembers who are currently “independent” as that term is defined under Nasdaq Listing Rule 5605(a)(2). The Board considers Drs. Jacob, Block, Lippa, Wijngaard and Corporate GovernanceMr. Brancaccio to be “independent.” Dr. Foster, our Chief Executive Officer, is not considered to be “independent” as defined by Nasdaq Listing Rule 5605(a)(2).
Directorships
Except as otherwise reported above, none of our directors held directorships in other reporting companies and registered investment companies at any time during the past five years.
Family Relationships
There are no family relationships among our directors and executive officers. There is no arrangement or understanding between or among our executive officers and directors pursuant to which any director or officer was or is to be selected as a director or officer.
Involvement in Certain Legal Proceedings
To our knowledge, during the past ten years, none of our directors, executive officers, promoters, control persons, or nominees has been:
· the subject of any bankruptcy petition filed by or against any business of which such person was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time;
·convicted in a criminal proceeding or is subject to a pending criminal proceeding (excluding traffic violations and other minor offenses);
·subject to any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction or any Federal or State authority, permanently or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking activities;
·found by a court of competent jurisdiction (in a civil action), the Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law;
·the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (a) any Federal or State securities or commodities law or regulation; (b) any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (c) any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or
·the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity
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Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member.
There are no material proceedings to which any director of the Company is a party adverse to the Company or has a material interest adverse to the Company.
Board Responsibilities and Structure
The Board oversees, counsels, and directs management in our long-term interest and our shareholders. The Board’s responsibilities include establishing broad corporate policies and reviewing our overall performance. The Board is not, however, involved in the operating details on a day-to-day basis.
Board of Directors Meetings
During the fiscal year ended June 30, 2017,December 31, 2021, our Board met 67 times, including telephonic meetings, the Audit Committee met 54 times, the Compensation Committee met 53 times and the Corporate Governance/Nominating Committee did not meet.met 2 times. All directors attended 100% of the aggregate number of meetings of the Board, all of the Audit Committee members attended 100% of the Audit Committee meetings, and all of the Compensation Committee members attended 100% of the Compensation Committee meetings.meeting, and all of the Corporate Governance/Nominating Committee members attended 100% of the Corporate Governance/Nominating Committee meeting.
Information Regarding Board Committees
Our Board has established standing Audit, Compensation and Corporate Governance/Nominating Committees to devote attention to specific subjects and to assist it in the discharge of its responsibilities. All committees operate under a written charter adopted by our Board, each of which is available on our Internet website at www.contravir.com under “Corporate Governance.”www.hepionpharma.com/investors/governance.
Audit Committee
The Audit Committee’s responsibilities include: (i) reviewing the independence, qualifications, services, fees, and performance of the independent registered public accountants, (ii) appointing, replacing and discharging the independent registered public accounting firm, (iii) pre-approving the professional services provided by the independent registered public accounting firm, (iv) reviewing the scope of the annual audit and reports and recommendations submitted by the independent registered public accounting firm, and (v) reviewing our financial reporting and accounting policies, including any significant changes, with management and the independent registered public accounting firm. The Audit Committee also prepares the Audit Committee report that is required pursuant to the rules of the SEC.
The Audit Committee currently consists of JohnMr. Brancaccio, chairman, of the Audit Committee, ArnoldDr. Lippa and Thomas Adams.Dr. Jacob. We believe that each of Mr. Brancaccio, Dr. Lippa and Dr. AdamsJacob is “independent” as that term is defined under applicable SEC and NASDAQNasdaq rules. Mr. Brancaccio is our audit committee financial expert. The board of directorsBoard has adopted a written charter setting forth the authority and responsibilities of the Audit Committee. The charter is available on our website at www.contravir.com.www.hepionpharma.com.
Compensation Committee
The Compensation Committee has responsibility for assisting the board of directorsBoard in, among other things, (i) evaluating and making recommendations regarding the compensation of the executive officers and directors of our company, (ii) assuring that the executive officers are compensated effectively in a manner consistent with our stated compensation strategy, (iii) producing an annual report on executive compensation in accordance with the rules and regulations promulgated by the SEC, (iv) periodically evaluating the terms and administration of our incentive plans and benefit programs and (v) monitoring of compliance with the legal prohibition on loans to our directors and executive officers.
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The Compensation Committee currently consists of Arnold Lippa,Dr. Wijngaard, chairman, of the Compensation Committee, JohnMr. Brancaccio, Tamar Howson,and Thomas Adams.Dr. Lippa. We believe that all of the members are “independent” under the current listing standards of NASDAQ.Nasdaq. The board of directorsBoard has adopted a written charter setting forth the authority and responsibilities of the Compensation Committee which is available on our website at www.contravir.com.www.hepionpharma.com.
Compensation Committee Interlocks and Insider Participation
None of the members of our compensation committee was, during the year ended June 30, 2017,December 31, 2021, an officer or employee of ours, was formerly an officer of ours or had any relationship requiring disclosure by us under Item 404 of Regulation S-K. No interlocking relationship as described in Item 407(e)(4) of Regulation S-K exists between any of our executive officers or Compensation Committee members, on the one hand, and the executive officers or compensation committee members of any other entity, on the other hand, nor has any such interlocking relationship existed in the past.
Corporate Governance/Nominating Committee
The Corporate Governance/Nominating Committee has responsibility for assisting the board of directorsBoard in, among other things, (i) effecting board organization, membership and function including identifying qualified board nominees, (ii) effecting the organization, membership and function of board committees including composition and recommendation of qualified candidates, (iii) establishment of and subsequent periodic evaluation of successor planning for the chief executive officer and other executive officers, (iv) development and evaluation of criteria for board membership such as overall qualifications, term limits, age limits and independence and (v) oversight of compliance with the Corporate Governance Guidelines. The Corporate Governance/Nominating Committee shall identify and evaluate the qualifications of all candidates for nomination for election as directors. Potential nominees are identified by the board of directorsBoard based on the criteria, skills and qualifications that have been recognized by the Corporate Governance/Nominating Committee. While our nomination and corporate governance policy does not prescribe specific diversity standards, the Corporate Governance/Nominating Committee and its independent members seek to identify nominees that have a variety of perspectives, professional experience, education, differences in viewpoints and skills, and personal qualities that will result in a well-rounded board of directors.Board.
The Corporate Governance/Nominating Committee currently consists of TimothyDr. Block, chairman, of the Corporate Governance/Nominating Committee, ArnoldDr. Lippa, Tamar Howson,and JohnMr. Brancaccio. We believe that all of the members are “independent” under the current listing standards of NASDAQ. The board of directorsNasdaq. Our Board has adopted a written charter setting forth the authority and responsibilities of the Corporate Governance/Nominating Committee which is available on our website at www.contravir.com.www.hepionpharma.com.
Communications with our Board of Directors
Stockholders seeking to communicate with our Board should submit their written comments to our Chief Executive Officer, James Sapirstein,Dr. Robert Foster, at ContraVirHepion Pharmaceuticals, Inc., 399 Thornall Street, First Floor, Edison, NJ 08837. Mr. Sapirstein08837. Dr. Foster will forward such communications to each member of our Board; provided that, if in the opinion of Mr. SapirsteinDr. Foster it would be inappropriate to send a particular stockholder communication to a specific director, such communication will only be sent to the remaining directors (subject to the remaining directors concurring with such opinion).
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires our officers and directors, and persons who own more than ten percent of a registered class of our equity securities, to file reports of ownership and changes in ownership with the Securities and Exchange Commission. Officers, directors and greater than ten percent stockholders are required by SEC regulation to furnish us with copies of all Section 16(a) forms they file.
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Based on a review of the copies of such forms received, we believe that during the year ended June 30, 2017, all filing requirements applicable to our officers, directors and greater than ten percent beneficial owners were complied with.
Code of Business Conduct and Ethics
We have adopted a Code of Business Conduct and Ethics to ensure that our business is conducted in a consistently legal and ethical manner. All of our employees, including our executive officers and directors, are required to comply with our Code of Business Conduct and Ethics.
The full text of the Code of Business Conduct and Ethics is posted on our website at http://www.contravir.com.www.hepionpharma.com/investors/governance. Any waiver of the Code of Business Conduct and Ethics for directors or executive officers must be approved by our Audit Committee. We will disclose future amendments to our Code of Business Conduct and Ethics, or waivers from our Code of Business Conduct and Ethics for our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions, on our website within four business days following the date of the amendment or waiver. In addition, we will disclose any waiver from our Code of Business Conduct and Ethics for our other executive officers and our directors on our website. A copy of our Code of Business Conduct and Ethics will also be provided free of charge upon request to: Secretary, ContraVirHepion Pharmaceuticals, Inc. 399 Thornall Street, First Floor, Edison, NJ 08837.
Director Compensation
On March 12, 2014, the Board of Directors determined that compensation for our non-employee directors will be comprised of an annual cash retainer and an annual equity award in the form of stock options. In addition, we grant to new directors a one-time equity award in the form of stock options in connection with their election to the board.
Cash Compensation
Below is a summary of cash compensation payable to non-employee directors for the fiscal year ended June 30, 2017:
| | Annual
Retainer ($)
| |
Board of Directors
| | | |
Chairman
| | 30,000
| |
Other Non-Employee Directors
| | 30,000
| |
| | | |
Audit Committee
| | | |
Committee Chair
| | 11,000
| |
Committee Members
| | 6,000
| |
| | | |
Compensation Committee
| | | |
Committee Chair
| | 8,000
| |
Committee Members
| | 6,500
| |
| | | |
Nominating Committee
| | | |
Committee Chair
| | 6,400
| |
Committee Members
| | 3,500
| |
In addition to the above cash compensation, each board member receives a $2,000 fee for each in-person attendance of quarterly board meetings.
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Equity AwardsRecommendation
The Compensation Committee grants equity awards to non-employee directors as follows:Board unanimously recommends a vote “FOR” each of the Board’s nominees in this Proposal 1.
· upon initial election or appointment to our Board of Directors, a non-employee director will be granted an award of a nonqualified stock option to purchase a number of shares of common stock to be determined at the time of such director’s appointment to the board; and
PROPOSAL 2
· as a continuing member of the board of directors, each non-employee director will be granted an annual award of a nonqualified stock option to purchase a number of shares of common stock,
provided that, in either case, the Compensation Committee has discretion to decrease the size of any such grant if it determines such modification to be in the best interests of the Company after considering the factors the Compensation Committee deems appropriate.
Director Compensation Table
During the year ended June 30, 2017, our non-employee directors received the following compensation for their services on the board and its committees:
Name | | Cash Fees | | Option
Awards(1) | | Total | |
Gary S. Jacob(2) | | $ | 37,000 | | $ | 44,211 | | $ | 81,211 | |
John P. Brancaccio(3) | | 59,000 | | 44,211 | | 103,211 | |
Arnold Lippa(4) | | 55,125 | | 22,530 | | 77,655 | |
Timothy Block(5) | | 51,900 | | 44,211 | | 96,111 | |
Tamar Howson(6) | | 11,500 | | 97,971 | | 109,471 | |
Thomas Adams(7) | | 27,250 | | 34,717 | | 61,967 | |
| | | | | | | | | | |
As of June 30, 2017, we have recorded a liability of approximately $74,013 related to director fees, which was paid in July 2017.
(1) Represents the fair value of incentive stock options granted during the year ended June 30, 2017 using the Black-Scholes model for computing stock-based compensation expense as of the date of grant. The fair value of the option grants was calculates in accordance with FASB ASC 718, and the assumptions used are described in Note 10 to the Company’s audited consolidated financial statements for the year ended June 30, 2017.
(2) As of June 30, 2017, Dr. Jacob held 1,015,000 option awards of which 767,500 are exercisable.
(3) As of June 30, 2017, Mr. Brancaccio held 200,656 option awards of which 155,235 are exercisable.
(4) As of June 30, 2017, Dr. Lippa held 77,500 option awards of which 15,000 grants are exercisable.
(5) As of June 30, 2017, Dr. Block held 169,688 option awards of which 127,217 are exercisable.
(6) As of June 30, 2017, Ms. Howson held 80,000 option awards of which no grants are exercisable.
(7) As of June 30, 2017, Dr. Adams held 45,000 option awards of which no grants are exercisable.
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Vote Required; Recommendation of the Board of Directors
If a quorum is present and voting at the Annual Meeting, each nominee must receive a plurality of the votes cast by the holders of our common stock to be elected to our Board. Votes withheld from any nominee, abstentions and broker non-votes will be counted only for purposes of determining a quorum. Broker non-votes will have no effect on this proposal as brokers or other nominees are not entitled to vote on such proposal in the absence of voting instructions from the beneficial owner.
THE BOARD RECOMMENDS THAT YOU VOTE “FOR” EACHRATIFICATION OF THE NOMINEES TO THE BOARD SET FORTH IN THIS PROPOSAL 1.
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PROPOSAL 2:
RATIFICATIONAPPOINTMENT OF SELECTION OFOUR INDEPENDENT REGISTERED PUBLIC ACCOUNTANTSACCOUNTING FIRM FOR FISCAL YEAR ENDING DECEMBER 31, 2022
The Audit Committee has selected BDO USA, LLP (“BDO”), as the Company’s independent registered public accountants for the fiscal year ending June 30, 2018December 31, 2022 and has further directed that management submit the selection of independent registered public accountants for ratification by the stockholders at the Annual Meeting. A representativesrepresentative of BDO USA, LLP is expected to be present at the Annual Meeting
Stockholder ratification of the selection of BDO USA, LLP as our independent registered public accountants is not required by Delaware law, the Company’s certificate of incorporation, or the Company’s bylaws. However, the Audit Committee is submitting the selection of BDO USA, LLP to the stockholders for ratification as a matter of good corporate practice. If the stockholders fail to ratify the selection, the Audit Committee will reconsider whether to retain that firm. Even if the selection is ratified, the Audit Committee in its discretion may direct the appointment of different independent registered public accountants at any time during the year if the Audit Committee determines that such a change would be in the best interests of the Company and its stockholders.
The affirmative vote of the holders of a majority of the shares present in person or represented by proxyPrincipal Accountant Fees and entitled to vote at the Annual Meeting will be required to ratify the selection of BDO USA, LLP. Abstentions will be counted toward the tabulation of votes cast on Proposal 2 and will have the same effect as negative votes. Broker non-votes will be counted towards a quorum, but will not be counted for any purpose in determining whether Proposal 2 has been approved.
Independent Registered Public Accountants’ Fees
Audit FeesServices
The aggregate fees billed and unbilledto the Company by BDO, the Company’s independent registered public accounting firm, for the indicated services for each of the last two (2) fiscal years ended June 30, 2017 and 2016 for professional services rendered by our principal accountants for the audits of our annual financial statements on Form 10-K, the review of our financial statements included in our quarterly reports on Form 10-Q, services associated with other SEC filings, and consents were approximately $273,000 and $270,000, respectively.as follows:
| | | 2021 | | | 2020 | |
| Audit fees (1) | | $ | 437,500 | | | $ | 422,865 | |
Audit Related Fees
| (1) | Audit fees consist of fees for professional services performed by BDO for the audit and review of our financial statements, preparation and filing of our registration statements, including issuance of comfort letters. There were no Audit Related, Tax, or Other fees for either period presented. |
There were $25,800Policy on Audit Committee Pre-Approval of audit related fees incurred in the fiscal year ended June 30, 2017 related to remaining fees attributable to the acquisitionAudit and Permissible Non-Audit Services of the net assets of Ciclofilin Pharmaceuticals Inc. and our proxy statement and $64,000 of audit related fees incurred in the fiscal year ended June 30, 2016 related to the acquisition of the net assets of Ciclofilin Pharmaceuticals Inc. that closed on June 10, 2016
Tax and Other Fees
There was approximately $21,400 billed for the fiscal year ended June 30, 2017 and $12,000 billed for the fiscal year ended June 30, 2016 for professional services rendered by our principal accountants for tax compliance. There were no other fees billed for the years ended June 30, 2017 or 2016.
Audit Committee’s Pre-Approval Policies and ProceduresIndependent Auditors
Consistent with SEC policies and guidelines regarding audit independence, the Audit Committee is responsible for the pre-approval of all audit and permissible non-audit services provided by our principal accountantsindependent registered public accounting firm on a case-by-case basis. Our Audit Committee has established a policy regarding approval of all audit and permissible non-audit services provided by our principal accountants. Our Audit Committee pre-approves these services by category and service. Our Audit Committee has pre-approved all of the services provided by our principal accountants.independent registered public accounting firm.
Vote Required; RecommendationRequired
The selection of our independent registered public accounting firm is not required to be submitted to a vote of our stockholders for ratification. However, we are submitting this matter to the stockholders as a matter of good corporate governance. Even if the appointment is ratified, the Board may, in its discretion, appoint a different independent registered public accounting firm at any time during the year if it determines that such a change would be in the best interests of Directorsus and our stockholders. If the appointment is not ratified, the Board will reconsider whether or not to retain BDO.
The affirmative vote of a majority of the shares of common stock(by voting power) present in person at the Annual Meeting or represented by proxy and entitled to vote at the meeting will beAnnual Meeting is required to ratifyapprove the selectionratification of the appointment of BDO USA, LLP.LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022.
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Table of ContentsBoard Recommendation
The Board unanimously recommends a vote “OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE TO RATIFY THE SELECTION OF BDO USA, LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING JUNE 30, 2018.” Proposal 2.
REPORT OF THE
AUDIT COMMITTEE OF THE BOARD OF DIRECTORSREPORT
The following Audit Committee Report shall not be deemed to be “soliciting material,” deemed “filed” with the SEC or subject to the liabilities of Section 18 of the Exchange Act. Notwithstanding anything to the contrary set forth in any of the Company’s previous filings under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act that might incorporate by reference future filings, including this Proxy Statement, in whole or in part, the following Audit Committee Report shall not be incorporated by reference into any such filings.
The Audit Committee is comprised of three independent directors (as defined under NASDAQ Listing Rule 5605(a)(2) of the NASDAQ Stock Market)). The Audit Committee operates under a written charter, which is available in print to any stockholder upon request to the Corporate Secretary.on our website at https://hepionpharma.com/investors/governance/.
We have reviewed and discussed with management and the Company’s independent registered public accounting firm, the Company’s audited consolidated financial statements as of and for the fiscal year ended June 30, 2017.December 31, 2021.
Management is responsible for the Company’s internal accounting and financial controls, the financial reporting process, and compliance with the Company’s policies and legal requirements. The Company’s independent registered public accounting firm is responsible for performing an independent audit of the Company’s consolidated financial statements in accordance with standards of the Public Company Accounting Oversight Board (United States) or “PCAOB”, and for issuance of a report thereon; they also perform limited reviews of the Company’s unaudited quarterly financial statements.We have discussed with BDO USA, LLP, the overall scope and plans for their auditCompany’s independent registered public accounting firm, the matters as well as the results of their examinations, and the overall quality of the Company’s financial reporting.
We have discussed with management and BDO USA, LLP, , those matters required to be discussed pursuant toby the Public Company Accounting Oversight Board (the “PCAOB”) Auditing StandardsStandard No. 1301 “Communications(Communications with Audit Committees,” issued by the PCAOB and other auditing standards generally accepted in the United States, the corporate governance standards of the NASDAQ Stock Market and the Audit Committee’s Charter.Committees).
We have received and reviewed the written disclosures and the letter from BDO USA, LLP required by applicable requirements of the PCAOB regarding BDO USA, LLP’s communications with the Audit Committee concerning independence, and have discussed with BDO USA, LLP, their independence from management and the Company.
Based on the reviewsreview and discussions referred to above, we recommended to the Board of Directors that the financial statements referred to above be included in the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2017December 31, 2021 for filing with the SEC.
| John P. Brancaccio, Chairman
Arnold Lippa
Thomas Adams
|
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PROPOSAL 3:
APPROVAL OF AN AMENDMENT TO THE COMPANY’S 2013 PLAN TO INCREASE THE RESERVATION OF COMMON STOCK FOR ISSUANCE THEREUNDER TO 10,700,000 SHARES FROM 7,700,000 SHARES
Our Board adopted the 2013 Plan in June 2013. The Board initially authorized the issuance of up to 1,500,000 shares of common stock under the 2013 Plan. On December 2, 2014, our stockholders approved an increase in the authorized number of shares under the 2013 Plan to 6,500,000 shares and on December 14, 2016, our stockholders approved an increase in the authorized number of shares under the 2013 Plan to 7,700,000 shares.
We are seeking stockholder approval in order to amend the 2013 Plan to increase the total number of shares of our common stock available for issuance thereunder to 10,700,000 shares.
Reasons for the Proposed Amendment
As described above, we are seeking stockholder approval of the amendment to increase the number of shares issuable pursuant to the 2013 Plan to 10,700,000 shares from 7,700,000 shares. As of October 27, 2017, there were 1,218,814 shares remaining available for issuance under the 2013 Plan. In determining the amount of the increase contemplated by the proposed amendment to the 2013 Plan, the Board has taken into consideration the fact that, as of October 26, 2017, there were approximately 78 million shares of our Common Stock outstanding. If this amendment to the 2013 Plan is approved, the number of shares available for issuance under the 2013 Plan would increase by 3,000,000 shares to 10,700,000 shares. The requested increase represents approximately 3.8% of the outstanding shares of Common Stock and the total number of shares available for issuance under the 2013 Plan would represent approximately 5.3% of our Common Stock as calculated.
For the year ended June 30, 2017, the average burn rate at which shares of our Common Stock were granted under the 2013 Plan as a percentage of average basic shares outstanding in that period was approximately 1.7%.
Total potential dilution (as a percentage of shares of our Common Stock outstanding) associated with the 3,000,000 additional shares of our Common Stock to be authorized under the 2013 Plan plus the 6,481,186 shares subject to outstanding awards under the 2013 Plan (as of October, 27, 2017) is 12.1%.
The historical burn rate and the potential dilution described above may not be indicative of what the actual amounts are in the future. The 2013 Plan does not contemplate the amount or timing of specific equity awards. The potential dilution is a forward-looking statement. Forward-looking statements are not facts. Actual results may differ materially because of factors such as those identified in reports we have filed with the Securities and Exchange Commission.
The purposeSubmitted by the Audit Committee
John Brancaccio, Chairman
Dr. Arnold Lippa
Dr. Gary Jacob
PROPOSAL 3
APPROVAL OF THE HEPION PHARMACEUTICALS 2022 OMNIBUS EQUITY INCENTIVE PLAN
Reasons for Adoption of this increase isthe 2022 Equity Incentive Plan
On April 14, 2022, our Board of Directors re-adopted the Hepion Pharmaceuticals, Inc. 2022 Omnibus Equity Incentive Plan (the “2022 Plan”), an omnibus equity incentive plan pursuant to continuewhich we may grant equity and cash and equity-linked awards to be ablecertain management, directors, consultants and others, subject to obtaining stockholder approval thereof. Our Board of Directors recommends adoption of the 2022 Plan in order to promote our success by providing a means to offer incentives and to attract, motivate, retain and motivate executive officers and other employees and certain consultants. Upon stockholder approval, additionalreward persons eligible to participate in the 2022 Plan. Accordingly, the Board of Directors voted unanimously to adopt the 2022 Plan.
The 2022 Plan is intended to replace our 2013 Option Plan, as amended.
Shares Available
The maximum number of shares of Common Stock will becommon stock reserved and available for issuance under the 2022 Plan will be equal to the sum of (i) 7,500,000 shares of common stock; (ii) the number of shares of common stock reserved, but unissued under the 2013 Plan, which will enable us to continue to grant equity awards to our officers, employees and consultants at levels determined by(iii) the Board to be necessary to attract, retain and motivate the individuals who will be critical to our success in achieving its business objectives and thereby creating greater value for all our stockholders. We have no current plans to makenumber of shares of common stock underlying forfeited awards under the 2013 Plan.
Furthermore, we believePlan; provided that equity compensation alignsshares of common stock issued under the interests2022 Plan with respect to an Exempt Award will not count against the share limit. We use the term “Exempt Award” to mean (i) an award granted in assumption of, our management and other employees with the interests of our other stockholders. Equityor in substitution for, outstanding awards are a key component of our incentive compensation program. We believe that option grants have been critical in attracting and retaining talented employees and officers, aligning their interests with those of stockholders, and focusing key employees on our long-
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term growth. We anticipate that option grants and other forms of equity awards such as restricted stock awards may become an increasing component in similarly motivating our consultants.
Approval of the amendment to the 2013 Plan will permit the Company to continue to use stock-based compensation to align stockholder and employee interests and to motivate employees and others providing services topreviously granted by another business entity acquired by us or any of our subsidiaries.subsidiaries or with which we or any of our subsidiaries merge, or (ii) an award that a participant purchases at fair market value.
Administration
The terms2022 Plan is administered by the Board or by one or more committees of directors appointed by the Board (the “Administrator”). The Board may delegate different levels of authority to different committees with administrative and grant authority under the 2022 Plan. Any committee delegated administrative authority under the 2022 Plan may further delegate its authority under the Plan to another committee of directors, and any such delegate shall be deemed to be an Administrator of the 20132022 Plan. The Administrator comprised solely of directors may also delegate, to the extent permitted by Section 157 of the Delaware General Corporation Law and any other applicable law, to one or more of our officers, its powers under this Plan are summarized below(a) to designate Eligible Persons who will receive grants of awards under this Plan, and (b) to determine the number of shares subject to, and the full textother terms and conditions of, 2013 Plan is set forth as Exhibit 10.1 to our Registration Statement on Form S-8 filed with the SEC on May 4, 2015. The full text of the proposed amendment to the 2013 Plan is set forth as Appendix A to this proxy statement.such awards. It is intendedanticipated that the 2013 Plan qualifyAdministrator (either generally or with respect to specific transactions) will be constituted so as an incentive stock option plan meetingto comply, as necessary or desirable, with the requirements of Section 422162(m) of the Internal Revenue Code of 1986, as amended (the “Code”“Code”)., and Rule 16b-3 promulgated under the Exchange Act.
SummaryEligibility
Awards may be granted pursuant to the 2022 Plan only to persons who are eligible persons. Under the 2022 Plan, “Eligible Person” means any person who is either: (a) an officer (whether or not a director) or employee of the 2013 EquityCompany or one of its subsidiaries; (b) a director of the Company or one of its subsidiaries; or (c) a consultant who renders bona fide services to the Company or one of its subsidiaries; provided, however, that Incentive PlanStock Options (“ISOs”) may be granted only to employees.
Employees,Awards
The 2022 Plan permits the grant of: (a) stock options, which may be intended as ISOs or as nonqualified stock options (options not meeting the requirements to qualify as ISOs); (b) stock appreciation rights (“SARs”); (c) restricted stock; (d) restricted stock units; (e) cash incentive awards; or (f) other awards, including: (i) stock bonuses, performance stock, performance units, dividend equivalents, or similar rights to purchase or acquire shares, whether at a fixed or variable price or ratio related to the common stock, upon the passage of time, the occurrence of one or more events, or the satisfaction of performance criteria or other conditions, or any combination thereof; or (ii) any similar securities with a value derived from the value of or related to the common stock and/or returns thereon.
Consideration for Awards
The purchase price for any award granted under the 2022 Plan or the common stock to be delivered pursuant to any such award, as applicable, may be paid by means of any lawful consideration as determined by the Administrator, including, without limitation, one or a combination of the following methods:
services rendered by the recipient of such award;
cash, check payable to the order of the Company, or electronic funds transfer;
notice and third party payment in such manner as may be authorized by the Administrator;
the delivery of previously owned and fully vested shares of common stock;
by a reduction in the number of shares otherwise deliverable pursuant to the award; or
subject to such procedures as the Administrator may adopt, pursuant to a “cashless exercise” with a third party who provides financing for the purposes of (or who otherwise facilitates) the purchase or exercise of awards.
New Plan Benefits
The following table sets forth grants of stock options approved by our Board on May 18, 2021, that are contingent upon shareholder approval of this Proposal 3.
| Name and Position | | Dollar Value | | | Number of Units(1) | |
| Dr. Robert Foster | | | (2 | ) | | | 1,900,000 | |
| John Cavan | | | (2 | ) | | | 1,200,000 | |
| Dr. Todd Hobbs | | | (2 | ) | | | 400,000 | |
| Non-Executive Directors | | | (2 | ) | | | 1,250,000 | |
| Non-Executive Officer Employees\Consultants | | | (2 | ) | | | 1,565,000 | |
(1) Awards granted under the Plan to our executive officers are discretionary and directorsare not subject to set benefits or amounts under the terms of and consultants and advisorsthe 2022 Plan. Accordingly, except as noted below, the benefits or amounts that will be received by or allocated to us, and any subsidiary,our executive officers under the 2022 Plan in the future are eligible to receive awardsnot determinable. On May 18, 2021, the Compensation Committee of our Board of Directors approved the grant of stock options under the 2013 Plan atto certain of our current executive officers, directors and employees, contingent upon shareholder approval. The 2022 Plan provides that the discretion ofoption awards granted by us on May 18, 2021 pursuant to the Board or its designated committee. The Board, or a committee designated2013 Plan shall instead be governed by the Board (for2022 Plan. The number of units in the purposes of this Proposal 3, “Board” shall also refer to such a committee, if any), has authority to, among other things:
·Determine the persons to whom, and the time or times at which, options shall be granted andtable above is the number of shares of Common Stock to beour common stock subject to each option;option that is contingent upon shareholder approval of this Proposal 3.
·Designate options as incentive stock options or nonstatutory stock options;
·Determine the fair market value of shares of stock or other property;
·Determine the terms, conditions and restrictions applicable to each(2) Each option (which need not be identical) and any shares acquired upon the exercise thereof, including, without limitation, (i) thewas granted with an exercise price per share of the option, (ii) the method of payment for shares purchased$1.70. The actual value realized upon the exercise of an option will depend on the option; (iii) the method for satisfaction of any tax withholding obligation arising in connection with the option or such shares, including by the withholding or delivery of shares of stock, (iv) the timing, terms and conditions of the exercisability of the option or the vesting of any shares acquired upon the exercise thereof, including the grants of options on an immediately exercisable basis subject to repurchase restrictions in favor of us, (v) the time of the expiration of the option, (vi) the effect of the optionee’s termination of service with us onexcess, if any, of the foregoing, and (vii) all other terms, conditions and restrictions applicable to the option or such shares not inconsistent with the terms of the 2013 Plan;
·Approve one or more forms of Option Agreement—Incentive Stock Option and Option Agreement—Nonstatutory Stock Option;
·Amend, modify, extend, cancel, renew, reprice or otherwise adjuststock price over the exercise price of, or grant a new option in substitution for, any option or to waive any restrictions or conditions applicable to any option or any shares acquired upon the exercise thereof;
·Accelerate, continue, extend or defer the exercisability of any option or the vesting of any shares acquired upon the exercise thereof, including with respect to the period following an optionee’s termination of service with us;
·Prescribe, amend or rescind rules, guidelines and policies relating to the 2013 Plan, or to adopt supplements to, or alternative versions of, the 2013 Plan, including, without limitation, as the Board deems necessary or
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desirable to comply with the laws of, or to accommodate the tax policy or custom of, foreign jurisdictions whose citizens may be granted options; and
·Correct any defect, supply any omission or reconcile any inconsistency in the 2013 Plan or any option agreement and to make all other determinations and take such other actions with respect to the 2013 Plan or any option as the Board may deem advisable to the extent consistent with the 2013 Plan and applicable law.
Our employees and directors, and consultants, and any parent corporation, or subsidiary are eligible to receive nonstatutory stock options and other stock-based awards under the 2013 Plan. Only our employees, and any parent corporation or subsidiary, are eligible to receive incentive stock options under the 2013 Plan.
Incentive stock options may not be priced at less than 100% of the fair market value of our Common Stock on the date of grant (110% of fair market value in the case of individuals holding 10% or more of our Common Stock). Except as otherwise determined by the Board, in the case of nostatutory options, the exercise price may not be less than 100% of the fair market value on the date of grant in accordance with applicable law. The fair market value of our Common Stock on October 27, 2017, was $0.62, based on the closing sale price of our Common Stock as reported by The Nasdaq Capital Market on that date. The 2013 Plan provides that stock options and similar awards may be issued with exercise periods of up to 10 years (except that no Incentive Stock Option granted to 10% owners of the our common stock shall be exercisable after the expiration of five years after the effective date of grant of such option).exercise.
Payment of the exercise price of options under the 2013 Plan may be made in the form of: (1) cash, check or cash equivalent; (2) by tender to us, or attestation to ownership, of shares of Common Stock owned by the optionee having a fair market value not less than the exercise price; (3) such other consideration as may be approved by the Board to the extent applicable by law; (4) or any combination thereof, as determined by the Board.
In the event of termination of employment or consulting relationship for any reason other than disability or death, the award recipient may exercise his or her vested options within 90 days of the date of such termination. In the event of termination as a result of disability, the award recipient may exercise his or her vested options within one year following the date of such termination but in any event no later than the date of expiration of the option’s term. In the event of death, the award recipient’s estate may exercise his or her vested options within one year following the date of death. Upon the occurrence of a “Change in Control” (as defined in the 2013 Plan), the Board may, at its sole discretion, accelerate the vesting and exercisability of outstanding options.
The Board has discretion to grant other stock-based awards; provided, however, that no such awards may be made unless the terms of the 2013 Plan and the awards are in compliance with Section 409A of the Code.
Transfers of awards may not be made other than by will or by the laws of descent and distribution. During the lifetime of a participant, an award may be exercised only by the participant to whom the award is granted.
Certain Federal Income Tax Consequences
The following is a summary of the principal U.S. federal income tax consequences generally applicable to awards underof the 2013 Plan.2022 Plan transactions is based upon federal income tax laws in effect as of April 26, 2022. This summary does not purport to consider all of the possible U.S. federal tax consequences of the awards and is not intended to reflect the particular tax position of any award recipient. This summary is based upon the U.S. federal tax laws and regulations now in effect and as currently interpretedbe complete, and does not take into account possible changes in suchdiscuss state, local or non-U.S. tax laws or such interpretations, any of which may be applied retroactively. Award recipients are strongly advised to consult their own tax advisors for additional information.consequences.
Grant of an OptionNonqualified Stock Options. The grant of ana nonqualified stock option isunder the 2022 Plan will not expected to result in any taxablefederal income for the recipient as of the date of the grant, except that in the event non-statutory options are granted with an exercise price lower than the then-current fair market value of the Common Stock, the difference between the exercise price and the then-
21
Table of Contents
current fair market value may be treated as deferred compensation income recognized as of the date the non-statutory options are granted.
Exercise of Incentive Stock Option The holder of an incentive stock option generally will have no taxable income upon exercising the option (except that a tax liability may arise pursuantconsequences to the alternative minimum tax), andparticipant or to the Company will not be entitled to a tax deduction.
ExerciseCompany. Upon exercise of Nonqualified Stock Option Generally, subject to Code Section 409A, upon exercising a nonqualified stock option, the award recipient mustparticipant will recognize ordinary compensation income equal to the excess of the fair market value of the shares of Common Stock acquired onat the datetime of exercise over the option exercise price. TheIf the participant is an employee, this income will be treated as compensation incomeis subject to payrollwithholding for federal income and withholdingemployment tax obligations.purposes. The Company would beis entitled to a compensationan income tax deduction in the amount of the income recognized by the award recipient.
Disposition of Shares Acquired Through an Option The tax consequenceparticipant, subject to a holder of an option upon a disposition of shares acquired throughpossible limitations imposed by the exercise of an option will depend on how long the shares have been held and upon whether such shares were acquired by exercising an incentive stock option or by exercising a nonqualified stock option.
Generally, the disposition of shares which were acquired by exercise of an incentive stock option will be taxable as long-term capitalCode, including Section 162(m) thereof. Any gain or loss ifon the award recipient disposesparticipant’s subsequent disposition of the shares more than two years after the option was granted and at least one year after exercising the option. If the award recipient fails to satisfy the holding period requirements for treatment as an incentive stock option, a disposition will result in any gain being treated as compensation income subject to ordinary tax rates. If the award recipient is still an employee of the Company at the time of the disposition, the amount of gain treated as compensation will also be subject to payroll and withholding taxes.
If an award recipient disposes of shares acquired through the exercise of a nonqualified option, any gain or loss will be treated as a capital gain or loss. To the extent such shares have been held for at least one year after exercise of the nonqualified option, the gain or loss will be treated as long-term or short-term capital gain or loss.loss, depending on the sales proceeds received and whether the shares are held for more than one year following exercise. The Company does not receive a tax deduction for any subsequent capital gain.
Generally, thereIncentive Options. The grant of an ISO under the 2021 Plan will benot result in any federal income tax consequences to the participant or to the Company. A participant recognizes no federal taxable income upon exercising an ISO (subject to the alternative minimum tax consequencerules discussed below), and the Company receives no deduction at the time of exercise. In the event of a disposition of stock acquired upon exercise of an ISO, the tax consequences depend upon how long the participant has held the shares. If the participant does not dispose of the shares within two years after the ISO was granted, nor within one year after the ISO was exercised, the participant will recognize a long-term capital gain (or loss) equal to usthe difference between the sale price of the shares and the exercise price. The Company is not entitled to any deduction under these circumstances.
If the participant fails to satisfy either of the foregoing holding periods (referred to as a “disqualifying disposition”), he or she will recognize ordinary compensation income in connection withthe year of the disposition. The amount of ordinary compensation income generally is the lesser of (i) the difference between the amount realized on the disposition and the exercise price or (ii) the difference between the fair market value of shares acquiredthe stock at the time of exercise and the exercise price. Such amount is not subject to withholding for federal income and employment tax purposes, even if the participant is an employee of the Company. Any gain in excess of the amount taxed as ordinary income will generally be treated as a short-term capital gain. The Company, in the year of the disqualifying disposition, is entitled to a deduction equal to the amount of ordinary compensation income recognized by the participant, subject to possible limitations imposed by the Code, including Section 162(m) thereof.
The “spread” under an option, exceptISO — i.e., the difference between the fair market value of the shares at exercise and the exercise price — is classified as an item of adjustment in the year of exercise for purposes of the alternative minimum tax. If a participant’s alternative minimum tax liability exceeds such participant’s regular income tax liability, the participant will owe the alternative minimum tax liability.
Restricted Stock. Restricted stock is generally taxable to the participant as ordinary compensation income on the date that we may bethe restrictions lapse (i.e. the date that the stock vests), in an amount equal to the excess of the fair market value of the shares on such date over the amount paid for such stock (if any). If the participant is an employee, this income is subject to withholding for federal income and employment tax purposes. The Company is entitled to aan income tax deduction in the caseamount of the ordinary income recognized by the participant, subject to possible limitations imposed by the Code, including Section 162(m) thereof. Any gain or loss on the participant’s subsequent disposition of the shares acquired under an incentivewill be treated as long-term or short-term capital gain or loss treatment depending on the sales price and how long the stock option beforehas been held since the applicable incentive stock option holding periods set forth in the Code have been satisfied.restrictions lapsed. The Company does not receive a tax deduction for any subsequent gain.
The grant by the Board of other stock-basedParticipants receiving restricted stock awards may have varying tax consequencesmake an election under Section 83(b) of the Code (“Section 83(b) Election”) to award recipients. Grants made pursuantrecognize as ordinary compensation income in the year that such restricted stock is granted, the amount equal to the 2013 Plan may be subject to Code Section 409A and plan administration may have to conform to Code Section 409A. Failure to comply with Code Section 409A, if applicable, will result in acceleration of income and imposition of penalties and interest to award recipients.
Application of Section 16excess of the Securities Exchange Act of 1934 Special rules may apply infair market value on the case of individuals subject to Section 16date of the Securities Exchange Actissuance of 1934, as amended. In particular, unless a specialthe stock over the amount paid for such stock. If such an election is made, pursuantthe recipient recognizes no further amounts of compensation income upon the lapse of any restrictions and any gain or loss on subsequent disposition will be long-term or short-term capital gain or loss to the Code, shares received pursuantrecipient. The Section 83(b) Election must be made within 30 days from the time the restricted stock is issued.
Other Awards. Other awards (such as restricted stock units) are generally treated as ordinary compensation income as and when common stock or cash are paid to the exerciseparticipant upon vesting or settlement of asuch awards. If the participant is an employee, this income is subject to withholding for income and employment tax purposes. The Company is generally entitled to an income tax deduction equal to the amount of ordinary income recognized by the recipient, subject to possible limitations imposed by the Code, including Section 162(m) thereof.
Section 162(m) Limitation. In general, under Section 162(m), income tax deductions of publicly-held corporations may be limited to the extent total compensation (including base salary, annual bonus, stock option may be treated as restricted as to transferabilityexercises and subject to a substantial risk of forfeiturenon-qualified benefits paid) for a period of up to six months after the date of exercise. Accordingly,certain executive officers exceeds $1 million (less the amount of any ordinary income recognized,“excess parachute payments” as defined in Section 280G of the Code) in any one year. Prior to the Tax Cuts and the amountJobs Act of 2017 (the “TCJA”), covered employees generally consisted of our tax deduction, are determined asChief Executive Officer and each of the next three highest compensated officers serving at the end of such period.
Deliverythe taxable year other than our Chief Financial Officer, and compensation that qualified as “performance-based” under Section 162(m) was exempt from this $1 million deduction limitation. As part of Sharesthe TCJA, the ability to Satisfy Tax Obligation Underrely on this exemption was, with certain limited exceptions, eliminated; in addition, the definition of covered employees was expanded to generally include all named executive officers. Certain awards under the 2013 Plan participantsgranted prior to November 2, 2017 may deliver shares of Common Stock (either shares received uponbe grandfathered from the receipt or exercise of the award or shares previously ownedchanges made by the holderTCJA under certain limited transition relief, however, for grants after that date and any grants which are not grandfathered, we will no longer be able to take a deduction for any compensation in excess of $1 million that is paid to a covered employee. There is no guarantee that we will be able to take a deduction for any compensation in excess of $1 million that is paid to a covered employee under the option) to us to satisfy federal and state tax obligations unless the Board provides to the contrary in the award agreement.2013 Plan.
Vote Required
The affirmative vote of a majority of the shares of Common Stock(by voting power) present or represented by proxy and entitled to vote at the annual meetingAnnual Meeting will be required to amend our 2013approve the 2022 Plan. Abstentions will be counted toward the tabulation of votes cast on this proposal and will have the same effect as negative votes. Broker non-votes will have no effect on this proposal as brokers or other nominees are not entitled to vote on such proposal in the absence of voting instructions from the beneficial owner.
Board Recommendation
OUR BOARD UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE TO AMEND THE 2013 PLAN TO INCREASE THE RESERVATION OF COMMON STOCK FOR ISSUANCE THEREUNDER TO 10,700,000 SHARES FROM 7,700,000 SHARES.
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regardingBoard unanimously recommends a vote “FOR” Proposal 3.
PROPOSAL 4:
INCREASE IN THE NUMBER OF SHARES OF AUTHORIZED COMMON STOCK
Introduction
Our Certificate of Incorporation, as amended, currently authorizes the beneficial ownershipissuance of up to 120,000,000 shares of common stock and 20,000,000 shares of “blank check” preferred stock. Our Board has approved an amendment to increase the number of authorized common stock from 120,000,000 shares to 200,000,000 shares (the “Increase in Authorized Common Shares Amendment”).
The proposed form of amendment to our Certificate of Incorporation to effect the Increase in Authorized Common Shares Amendment is attached as Appendix B to this Proxy Statement.
Reasons for the Increase in Authorized Common Shares Amendment
Our Board determined that the Increase in Authorized Common Shares Amendment is in the best interests of the Company and unanimously recommends approval by stockholders. The Board believes that the availability of additional authorized shares of common stock is required for several reasons including, but not limited to, the additional flexibility to issue common stock for a variety of general corporate purposes as the Board may determine to be desirable including, without limitation, future financings, investment opportunities, acquisitions, or other distributions and stock splits (including splits effected through the declaration of stock dividends).
As of the Record Date, there were 76,229,617 shares of our common stock issued out of the 120,000,000 shares of common stock that we are authorized to issue. In addition, as of October 27, 2017 by:the Record Date, an aggregate of approximately 13,105,946 shares of common stock have been reserved for future issuance, including: (i) 8,774,974 shares reserved for issuance under our 2013 Equity Incentive Plan; (ii) 3,184 shares reserved for issuance pursuant to our Series A Preferred Stock; (iii) 16,608 shares reserved for issuance pursuant to our Series C Preferred Stock; and (iv) 4,311,180 shares of common stock reserved for issuance upon the exercise of outstanding warrants.
· our named executive officers;Thus, we have approximately 30,664,437 shares of common shares available for future issuance at this time. Our working capital requirements are significant and may require us to raise additional capital through additional equity financings in the future.
· eachIf we issue additional shares of common stock or other securities convertible into shares of our directors;common stock in the future, it could dilute the voting rights of existing stockholders and could also dilute earnings per share and book value per share of existing stockholders. The increase in authorized number of common stock could also discourage or hinder efforts by other parties to obtain control of the Company, thereby having an anti-takeover effect. The increase in authorized number of common stock is not being proposed in response to any known threat to acquire control of the Company.
· allEffects of the Increase in Authorized Common Shares Amendment
Following the filing of the Increase in Authorized Common Shares Amendment with the Secretary of State of the State of Delaware, we will have the authority to issue up to shares of common stock. These shares may be issued without stockholder approval at any time, in the sole discretion of our current directorsBoard. The authorized and executive officers as a group; andunissued shares may be issued for cash or for any other purpose that is deemed in the best interests of the Company.
· each stockholder
In addition, the Increase in Authorized Common Shares Amendment could have a number of effects on the Company’s stockholders depending upon the exact nature and circumstances of any actual issuances of authorized but unissued shares. If we issue additional shares of common stock or other securities convertible into shares of our common stock in the future, it could dilute the voting rights of existing stockholders and could also dilute earnings per share and book value per share of existing stockholders. The increase in authorized number of common stock could also discourage or hinder efforts by other parties to obtain control of the Company, thereby having an anti-takeover effect. The increase in authorized number of common stock is not being proposed in response to any known by usthreat to own beneficially more than five percentacquire control of the Company.
The Increase in Authorized Common Shares Amendment will not change the number of shares of common stock issued and outstanding, nor will it have any immediate dilutive effect or change the rights of current holders of the our common stock.
Beneficial ownershipProcedure for Implementing the Amendment
The Increase in Authorized Common Shares Amendment will become effective upon the filing or such later time as specified in the filing with the Secretary of State of the State of Delaware. The form of the Increase in Authorized Common Shares Amendment is attached hereto as Appendix B. The exact timing of the filing of the Increased in Authorized Amendment will be determined by our Board based on its evaluation as to when such action will be the most advantageous to the Company and our stockholders.
Interests of Officers and Directors in accordance withthis Proposal
Our officers and directors do not have any substantial interest, direct or indirect, in in this proposal.
Required Vote of Stockholders
The affirmative vote of the holders of a majority of the outstanding shares of our common stock is required to approve this proposal.
Board Recommendation
The Board unanimously recommends a vote “FOR” Proposal 4.
PROPOSAL 5:
APPROVAL OF THE COMPENSATION OF THE NAMED EXECUTIVE OFFICERS
(“SAY-ON-PAY”)
Under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”), our stockholders are entitled to vote at the Annual Meeting to provide advisory approval of the compensation of our named executive officers as disclosed in this proxy statement pursuant to the compensation disclosure rules of the Securities and Exchange Commission and includes voting or investment power with respectSEC. Pursuant to the securities. SharesDodd-Frank Act, the stockholder vote on executive compensation is an advisory vote only, and it is not binding on us or our Board.
Although the vote is non-binding, our Compensation Committee and Board value the opinions of common stockthe stockholders and will consider the outcome of the vote when making future compensation decisions. As described more fully in the Executive Compensation section of this proxy statement, our executive compensation program is designed to attract, retain and motivate individuals with superior ability, experience and leadership capability to deliver on our annual and long-term business objectives necessary to create stockholder value. We urge stockholders to read the Executive Compensation section of this proxy statement, which describes in detail how our executive compensation policies and procedures operate and are intended to operate in the future. The Compensation Committee and the Board believe that may be acquired byour executive compensation program fulfills these goals and is reasonable, competitive and aligned with our performance and the performance of our executives.
We are asking our stockholders to indicate their support for our named executive officer compensation as described in this proxy statement. This proposal, commonly known as a “say-on-pay” proposal, gives our stockholders the opportunity to express their views on our named executive officers’ compensation. This vote is not intended to address any specific item of compensation, but rather the overall compensation of our named executive officers and the philosophy, policies and practices described in this proxy statement. Accordingly, we ask that our stockholders vote “FOR” the following resolution:
“RESOLVED, that Hepion Pharmaceuticals, Inc.’s stockholders approve, on an individual or group within 60 daysadvisory basis, the compensation of October 27, 2017,the named executive officers, as disclosed in Hepion Pharmaceuticals, Inc.’s proxy statement for the 2022 Annual Meeting of Stockholders, pursuant to the exercisecompensation disclosure rules of options or warrants, are deemedthe SEC, including the Executive Compensation section, the Summary Compensation Table and the other related tables and disclosure.”
Interests of Officers and Directors in this Proposal
As this vote relates to be outstanding for the purposeexecutive compensation of computing the percentage ownership ofour named executive officers, such individual or group, but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person shownofficers have an interest in the table. Percentageapproval of ownershipthis Proposal. This is based on 78,278,306 sharesan advisory vote and is not binding. The outcome of common stock outstanding on October 27, 2017.this advisory vote will not overrule any decision by the Compensation Committee or our Board.
Except as indicated in footnotes to this table, we believe that the stockholders named in this table have sole voting and investment power with respect to all shares of common stock shown to be beneficially owned by them, based on information provided to us by such stockholders. Unless otherwise indicated, the address for each director and executive officer listed is: c/o ContraVir Pharmaceuticals, Inc., 399 Thornall Street, First Floor, Edison, New Jersey 08837.
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Beneficial Owner | | Number of Shares
Beneficially
Owned | | Shares of
common
stock
issuable upon
exercise of
stock options | | Percentage of
Common Stock
Beneficially
Owned | |
Directors and Executive Officers | | | | | | | |
James Sapirstein | | 170,727 | | 1,500,002 | | 2.1 | |
Theresa Matkovits | | — | | 45,000 | | * | |
John Sullivan-Bolyai | | 79,680 | | 141,930 | | * | |
John Cavan | | 66,726 | | 31,229 | | * | |
Robert Foster | | 40,482 | | 25,000 | | * | |
Gary S. Jacob | | 32,935 | | 907,500 | | 1.2 | |
John Brancaccio | | 2,015 | | 168,155 | | * | |
Timothy Block | | — | | 137,188 | | * | |
Arnold Lippa | | — | | 62,500 | | * | |
Thomas Adams | | — | | 15,000 | | * | |
Tamar Howson | | — | | 15,000 | | * | |
All current executive officers and directors as a group (9 persons) | | 392,565 | | 3,048,504 | | 4.2 | |
5% or Greater Stockholders | | | | | | | |
Gabriele M. Cerrone(1) | | 4,436,104 | | 240,000 | | 6.0 | |
(1)
ConsistsRequired Vote of 78,146 shares of common stock held by Mr. Cerrone and 4,357,958 shares of common stock held by Panetta Partners, Ltd. Mr. Cerrone is a member of the board of directors of Panetta Partners, Ltd. and in such capacity holds voting and dispositive control over securities held by Panetta.
*Represents beneficial ownership of less than 1%.
EXECUTIVE COMPENSATION AND OTHER INFORMATION
Information about Executive OfficersStockholders
The followingaffirmative vote of a majority of the votes cast at the Annual Meeting is required to approve Proposal 5.
Board Recommendation
The Board unanimously recommends a vote “FOR” Proposal 5.
EXECUTIVE OFFICERS
The table below identifies and sets forth certain biographical and other information aboutregarding our executive officers as of October 27, 2017date of this proxy statement. There are no family relationships among any of our executive officers or directors.
Name | | Age | | Present Position with ContraVir Pharmaceuticals, Inc.
| Positions |
James Sapirstein
Robert Foster, Ph.D. | | 56
| 63 | | | Chief Executive Officer, and Director |
John Cavan | | 59
| 63 | | | Chief Financial Officer |
John Sullivan-Bolyai
Todd Hobbs M.D. | | 69
| 53 | | | Chief Medical Officer |
Dr. Robert T. Foster
| | 59
| | Chief Scientific Officer
|
Dr. Theresa Matkovits
| | 50
| | Executive Vice President
|
Mr. Sapirstein’s biography is listed under ProposalSee “Proposal No. 1—Election of Directors.Directors” for biographical and other information regarding Dr. Foster.
John Cavan – Chief Financial Officer
Mr. Cavan has served asbeen our Chief Financial Officer since April 1,March 2016. From January 2016 to April 2016, Mr. Cavan served in the capacity of Interim CFO. Prior to joining ContraVir,Previously, Mr. Cavan was a consultant with The Pine Hill Group from February 2012 to March 2016 where he was instrumental in completing multiple strategic andseveral financial transactions, including initial public offerings, business combinations and strategic transactions. Prior to his role with the Pine Hill Group, from June 2006 until February 2012, he served as Chief Accounting Officer at Stemline Therapeutics, Inc. and asPreceding his role at Stemline, Mr. Cavan was Vice President and Chief Accounting Officer at Aegerion Pharmaceuticals, Inc. where he was instrumental in the company’s initial public offering, through which Aegerion achieved a $2 billion market capitalization. He has also held financial positions within the healthcare industry at AlgoRx Pharmaceuticals, Inc. and Alpharma. Mr. Cavan served in a variety of financial and operational positions early in his career during tenures with large multinational public companies, including Sony, American Express, International Specialty Products (an Ashland Company) and Nestlé U.S.A. Mr. Cavan currently serves on the Board of Directors of Vantage Health Systems. He holds a B.B.A in Accountancy from Iona College and an M.B.A. in Finance from Seton Hall University.
Todd Hobbs, M.D. – Chief Medical Officer
Dr. John Sullivan-BoyaiHobbs has served asbeen our Chief Medical Officer since January 19, 2015. From August 2014 until January 2015,February 2021. In his current role as CMO, Dr. Sullivan-Bolyai was the Executive Director of Infectious Disease clinical research at Merck & Co. Inc. where he oversaw multiple HCV protocols inHobbs leads all three phases of clinical development. From June 2007 until August 2014, he was the Vice-President of Clinical Research at Idenix Pharmaceuticals Inc. where he managed all medical aspects of Hepion’s clinical programs in chronic liver diseases, guides the HIVdevelopment strategy, and HCV programs. Additionally, he was responsible for the transition of Idenix’s clinical team to Merck, which acquired Idenix.oversees interactions with global regulatory agencies, key thought leaders, as well as policymakers and professional associations. Prior to joining Idenix, Dr. Sullivan-Bolyai workedhis role at Anadys Pharmaceuticals on hepatitis C and at Valeant Pharmaceuticals International on Valeant’s nucleotide prodrug for the treatment of chronic hepatitis B infection. Previously, he held various medical and operations positions at Biomeasure and Serono Laboratories in Massachusetts, working on coagulation, immunomodulatory, endocrine, and gastrointestinal compounds. He beganHepion, his career includes nearly 20 years of progressive clinical and medical experience in the biopharmaceutical industry with Hoffmann-La Rochevarious leadership roles at Novo Nordisk in medical affairs as well as seven years there as the North American Chief Medical Officer. His background includes over a decade of direct clinical experience, where his medical practice focused on the intensive management of diabetes patients of all ages, and he worked onserved as chairman of the medicine department for a variety of compounds for the treatment of bacterial infections, HCV and HIV. Dr. Sullivan-Bolyai received an MD, MPHlarge regional medical center in Kentucky. He earned his medical degree from the University of Washington in Seattle. HeLouisville School of Medicine and has completed his infectious diseases fellowshipfocused executive training at the University of Pennsylvania’s Wharton School of Business.
24
EXECUTIVE COMPENSATION
Children’s Orthopedic Hospital and Medical Center, Seattle, WA, followed by academic positions at UCLA and the University of Illinois.
Dr. Robert T. Foster has served as our Chief Scientific Officer since June 10, 2016. Prior to ContraVir, he was Chief Executive Officer and Founder of Ciclofilin Pharmaceuticals Inc. from January 2014 until it merged with ContraVir on June 10, 2016. Prior to Ciclofilin Pharmaceuticals, he founded Isotechnika Pharma Inc. in 1993, where he was Chairman and Chief Executive Officer for 21 years. Dr. Foster was founding Chief Executive Officer and later, Chief Scientific Officer of Aurinia Pharmaceuticals, Inc., after Isotechnika acquired Aurinia. Dr. Foster is currently a Board member of Transcriptome Sciences Inc.
Dr. Theresa Matkovits joined us in May 2015 and currently serves as our Executive Vice President – Drug Development. Dr. Matkovits brings over 20+ years global drug development, commercialization, and leadership experience to ContraVir. A seasoned and established leader in the Pharmaceutical and Biotech Sectors, Dr. Matkovits has led Global Drug Development Teams bringing to market a number of approved medicines to several global markets. Dr. Matkovits earned her Ph.D. in Biochemistry and Molecular Biology from the University of Medicine and Dentistry of NJ.. She currently serves on the board of BioSurplus, Inc.
ExecutiveSummary Compensation Table
The following table contains compensation information for our Chief Executive Officer and certain other executives who were the most highly compensated executive officers for the fiscal years ended June 30, 2017December 31, 2021 and 2016.2020.
Name & Principal Position | | Year | | Salary | | Bonus(1)(2) | | Options
granted(3) | | Non-equity
incentive plan
compensation(1)(4) | | Total | |
James Sapirstein,
R.Ph. | | 2017 | | $ | 410,000 | | $ | — | | $ | 610,995 | | $ | 228,940 | | $ | 1,249,935 | |
Chief Executive Officer | | 2016 | | $ | 370,595 | | $ | 51,042 | | $ | — | | $ | 175,000 | | $ | 596,637 | |
John Sullivan-
Bolyai, M.D. | | 2017 | | $ | 332,800 | | $ | — | | $ | 102,904 | | $ | — | | $ | 453,704 | |
Chief Medical Officer | | 2016 | | $ | 320,000 | | $ | — | | $ | 13,963 | | $ | — | | $ | 333,963 | |
Theresa Matkovits,
Ph.D. | | 2017 | | $ | 275,000 | | $ | — | | $ | — | | $ | 64,870 | | $ | 339,870 | |
Executive Vice President | | 2016 | | $ | 250,000 | | $ | — | | $ | 23,754 | | $ | — | | $ | 273,754 | |
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | Non-equity
incentive | | | | |
| | | | | | | | | Options | | | plan | | | | |
| | | | | | | | | granted ($) | | | compensation ($) | | | | |
| Name & Principal position | | Year | | | Salary ($) | | | (2) | | | (1)(3) | | | Total ($) | |
| Dr. Robert Foster | | 2021 | | | | 500,000 | | | | 2,818,473 | | | | 200,000 | | | | 3,518,473 | |
| Chief Executive Officer | | 2020 | | | | 400,000 | | | | 1,238,996 | | | | 200,000 | | | | 1,838,996 | |
| John Cavan | | 2021 | | | | 350,000 | | | | 1,780,088 | | | | 112,000 | | | | 2,242,088 | |
| Chief Financial Officer | | 2020 | | | | 325,000 | | | | 831,984 | | | | 81,250 | | | | 1,238,234 | |
| Dr.Todd Hobbs (4) | | 2021 | | | | 328,124 | | | | 593,363 | | | | 90,000 | | | | 1,011,487 | |
| Chief Medical Officer | | 2020 | | | | - | | | | - | | | | - | | | | - | |
| (1) | Non-equity incentive compensation amounts are for performance during the years ended December 31, 2021 and 2020, whether or not paid in the year the compensation was earned. |
| (2) | Our named executive officers will only realize compensation to the extent the fair market value of our common stock is greater than the exercise price of such stock options. The grant date fair value of option awards granted in 2020 is in accordance with ASC Topic 718, or ASC 718. For information regarding assumptions underlying the valuation of equity awards, see Note 9 contained in the Annual Report on Form 10- K for the year ended December 31, 2021. |
| (3) | Represents cash incentive payments earned based upon the achievement of corporate objectives established by our Board for performance during the years ended December 31, 2021 and 2020. |
| (4) | Dr. Hobbs joined Hepion in February 2021. |
(1)Bonus and non-equity incentive compensation amounts are for performance during the fiscal year ended June 30, 2017, as applicable, whether or not paid in the year the compensation was earned.
(2)Represents cash incentive payments in excess of such named executive officer’s target bonus, paid at the discretion of our Board of Directors in 2017 for performance in 2017.
(3)Our named executive officers will only realize compensation to the extent the fair market value of our common stock is greater than the exercise price of such stock options. The grant date fair value of option awards granted in 2017 is in accordance with ASC Topic 718, or ASC 718. For information regarding assumptions underlying the valuation of equity awards, see Note 10 of the Financial Statements in our Annual Report on Form 10-K for the fiscal year ended June 30, 2017.
(4)Represents cash incentive payments earned based upon the achievement of corporate objectives established by our Board of Directors for performance in 2017.
Employment Agreements
On May 25, 2017,December 12, 2018, we entered into an Amended and Restated Executive Agreement (the “Sapirstein“Foster Agreement”) with James Sapirstein,Dr. Robert Foster, our Chief Executive Officer. The term of the SapirsteinFoster Agreement commenced on May 25, 2017October 1, 2018 and will continue until May 25, 2020,October 1, 2021, following which time the SapirsteinFoster Agreement will beautomatically renewed for successive one year periods at the end of each term, unless either party delivers written notice to the other party of their intent to not renew the SapirsteinFoster Agreement. Pursuant to the SapirsteinFoster Agreement, Mr. Sapirstein’sDr. Foster’s current base compensation is $480,000$400,000 per year. Mr. SapirsteinDr. Foster is eligible to receive a cash bonus of up to 50% of his base salary per year based on meeting certain performance objectives and bonus criteria. Mr. Sapirstein is also eligible to receive a realization bonus (the “Realization Bonus”) equal to $2,000,000 in either cash or registered common stock or a combination thereof as mutually agreed by Mr. Sapirstein and the Company, in the event that during the term of the Sapirstein Agreement, for a period of 90 consecutive trading days, the market price of the Company’s common stock is $4.00 or more and the value of the common stock daily trading volume is $900,000 or more.
If Mr. Sapirstein’sDr. Foster’s employment is terminated by us for cause or as a result of Mr. Sapirstein’sDr. Foster’s death or permanent disability, or if Mr. SapirsteinDr. Foster terminates his the SapirsteinFoster Agreement voluntarily without Good Reason (as defined in the SapirsteinFoster Agreement), Mr. SapirsteinDr. Foster will be entitled to receive a lump sum equal to (i) any portion of unpaid base compensation then due for periods prior to termination, (ii) any bonus earned but not yet paid, (iii) any Realization Bonus earned and payable, but not yet paid, and (iv)(iii) all business expenses reasonably and necessarily incurred by Mr. SapirsteinDr. Foster prior to the date of termination. If Mr. Sapirstein’sDr. Foster’s employment is terminated by us without cause or by Mr. SapirsteinDr. Foster for Good Reason, Mr. SapirsteinDr. Foster will be entitled to receive the amounts due upon termination of his employment by us for cause or as a result of his death or permanent disability, or upon termination by Mr. SapirsteinDr. Foster of his employment voluntarily without Good Reason, in addition to (provided that Mr. SapirsteinDr. Foster executes a written release with respect to certain matters) a severance payment equal to his base compensation for 1812 months from the date of termination and reimburse Mr. Sapirstein’sDr. Foster’s payment of COBRA premiums for 1812 months from the date of termination. In addition, if Mr. Sapirstein’sDr. Foster’s employment is terminated: (a) by us without cause within 6 months prior to a change of control (as defined in the Sapirstein Agreement) that was pending during such 6 month period, (b) by Mr. Sapirstein for Good Reason within 12 months after a change of control, or (c) by us without cause at any time upon or within 12 months after a change of control, Mr. Sapirstein would be entitled to receive the amounts due upon termination of his employment by us for cause or as a result of his death or permanent disability, or upon termination by Mr. Sapirstein voluntarily without Good Reason, provided, if Mr. Sapirstein executes a written release with respect to certain matters, he will be entitled to a severance payment equal to his base compensation for 18 months from the date of termination and reimbursement of his payment of COBRA premiums for 18 months from the date of termination. In addition, all of Mr. Sapirstein’s unvested stock options and other equity awards would immediately vest and become fully exercisable (x) in the event a change of control transaction is pending, for a period of six months following the date of termination, and (y) in the event a change of control transaction is not then pending, for the period of time set forth in the applicable agreement evidencing the award.
| (a) | by us without cause within 6 months prior to a change of control (as defined in the Foster Agreement) that was pending during such 6 month period, |
On January 13, 2015, we entered into an executive agreement with John Sullivan-Bolyai, M.D., MPH, effective January 19, 2015, under which he serves as Chief Medical Officer of the Company. Pursuant to the terms of his employment agreement, Dr. Sullivan-Bolyai receives an annual salary of $320,000. He also received 135,000 options with an exercise price of $2.56 which vest over three years. He is eligible to receive a cash bonus of up to 25% of his base salary upon achievement of performance milestones. If Dr. Sullivan-Bolyai’s employment is terminated without cause or for good reason (as defined in his employment agreement), he will be entitled to receive a severance payment equal to base salary for nine months from date of termination in addition to any earned but unpaid salary and bonus.
| (b) | by Mr. Foster for Good Reason within 12 months after a change of control, or (c) by us without cause at any time upon or within 12 months after a change of control, Dr. Foster would be entitled to receive the amounts due upon termination of his employment by us for cause or as a result of his death or permanent disability, or upon termination by Dr. Foster voluntarily without Good Reason, provided, if Dr. Foster executes a written release with respect to certain matters, he will be entitled to a severance payment equal to his base compensation for 12 months from the date of termination and reimbursement of his payment of COBRA premiums for 12 months from the date of termination. In addition, all of Dr. Foster’s unvested stock options and other equity awards would immediately vest and become fully exercisable (x) in the event a change of control transaction is pending, for a period of six months following the date of termination, and (y) in the event a change of control transaction is not then pending, for the period of time set forth in the applicable agreement evidencing the award. |
On June 1, 2015, we entered into an executive agreement with Theresa Matkovits Ph.D. effective June 1, 2015, under which Dr. Matkovits serves as Executive Vice President – Drug Development of the Company. Pursuant to the terms of her employment agreement, Dr. Matkovits receives an annual salary of $275,000. She is eligible to receive a cash bonus of up to 28% of her base salary upon achievement of performance milestones. If Dr. Matkovits employment is terminated without cause or for good reason (as defined in his employment agreement), she will be entitled to receive a severance payment equal to base salary for six months from date of termination in addition to any earned but unpaid salary and bonus.
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Outstanding Equity Awards as of June 30, 2017December 31, 2021
| | Number of Securities | | | | | |
| | Underlying Unexercised | | Option | | Option | |
| | Options (#) | | Exercise | | Expiration | |
Name | | Exercisable | | Unexercisable | | Price ($) | | Date | |
James Sapirstein, | | 750,000 | | 250,000 | | 2.31 | | 3/19/2024 | |
Chief Executive Officer | | 333,333 | | 166,667 | | 1.50 | | 12/3/2024 | |
| | 100,000 | | 50,000 | | 3.60 | | 6/4/2025 | |
| | 166,667 | | 333,333 | | 0.99 | | 6/13/2026 | |
| | — | | 313,898 | | 1.43 | | 3/3/2027 | |
| | — | | 313,898 | | 1.48 | | 3/6/2027 | |
| | | | | | | | | |
John Sullivan-Bolyai, | | 90,000 | | 45,000 | | 2.56 | | 1/19/2025 | |
Chief Medical Officer | | 6,667 | | 13,333 | | 0.99 | | 6/13/2026 | |
| | — | | 135,790 | | 1.10 | | 8/26/2026 | |
| | | | | | | | | |
Theresa Matkovits, | | 33,333 | | 16,667 | | 3.83 | | 5/26/2025 | |
Executive Vice President | | 3,333 | | 6,667 | | 0.95 | | 2/1/2026 | |
| | 8,333 | | 16,667 | | 0.99 | | 6/13/2026 | |
| | | Number of Securities Underlying Unexercised Options (#) | | | Option Exercise | | | Option Expiration |
| Name | | | Exercisable | Unexercisable | | | Price ($) | | | Date |
| Dr. Robert Foster | | | 179 | | | | — | | | | 515.20 | | | 6/10/2026 |
| Chief Executive Officer | | | 6,466 | | | | 3,234 | | | | 3.24 | | | 7/29/2029 |
| | | | 126,666 | | | | 253,334 | | | | 1.63 | | | 4/3/2030 |
| | | | 93,633 | | | | 118,367 | | | | 3.72 | | | 8/19/2030 |
| | | | 0 | | | | 1,900,000 | | | | 1.70 | | | 5/18/2031 |
| | | | | | | | | | | | | | | |
| John Cavan | | | 179 | | | | — | | | | 677.60 | | | 4/1/2026 |
| Chief Financial Officer | | | 34 | | | | — | | | | 616.00 | | | 8/26/2026 |
| | | | 27 | | | | — | | | | 324.80 | | | 7/20/2027 |
| | | | 3,880 | | | | 1,940 | | | | 3.24 | | | 7/24/2029 |
| | | | 71,666 | | | | 143,334 | | | | 1.63 | | | 4/3/2030 |
| | | | 70,666 | | | | 89,334 | | | | 3.72 | | | 8/19/2030 |
| | | | 0 | | | | 1,200,000 | | | | 1.70 | | | 5/18/2031 |
Dr. Todd Hobbs, M.D. Chief Medical Officer | | | 0 | | | | 400,000 | | | | 1.70 | | | 5/18/2031 |
| | | | | | | | | | | | | | | |
| Director Compensation | | | | | | | | | | | | | | |
During year ended December 31, 2021, our non-employee directors received the following compensation for their services on the Board and its committees:
| Name | | Cash Fees | | | Option
Awards(1) | | | Total | |
| Gary S. Jacob (2) | | $ | 109,000 | | | $ | 370,852 | | | $ | 479,852 | |
| John P. Brancaccio (3) | | | 96,875 | | | | 296,681 | | | | 393,556 | |
| Arnold Lippa (4) | | | 95,000 | | | | 296,681 | | | | 391,681 | |
| Timothy Block (5) | | | 90,400 | | | | 296,681 | | | | 387,081 | |
| Thomas Adams (6)(7) | | | 90,000 | | | | 296,681 | | | | 386,681 | |
| Petrus Wjjngaard (8) | | | 90,500 | | | | 296,681 | | | | 387,181 | |
| (1) | 1,250,000 option awards were issued during the year ended December 31, 2021. |
| (2) | As of December 31, 2021, Dr. Jacob held 342,785 option awards of which 92,785 are exercisable. |
| (3) | As of December 31, 2021, Mr. Brancaccio held 291,332 option awards of which 91,332 are exercisable. |
| (4) | As of December 31, 2021, Dr. Lippa held 291,110 option awards of which 91,110 grants are exercisable. |
| (5) | As of December 31, 2021, Dr. Block held 291,276 option awards of which 91,276 are exercisable. |
| (6) | As of December 31, 2021, Dr. Adams held 291,051 option awards of which 91,051 are exercisable. |
| (7) | Dr. Adams passed away on January 9, 2022. |
| (8) | As of December 31, 2021, Dr. Petrus Wijngaard held 260,000 option awards of which 40,000 are exercisable. |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT [To be updated]
The following table sets forth certain information regarding beneficial ownership of shares of our common stock as of Record Date, based on shares issued and outstanding by (i) each person known to beneficially own more than 5% of our outstanding common stock, (ii) each of our directors, (iii) our executive officers and (iv) all directors and executive officers as a group. Shares are beneficially owned when an individual has voting and/or investment power over the shares or could obtain voting and/or investment power over the shares within 60 days of the Record Date. Except as otherwise indicated, the persons named in the table have sole voting and investment power with respect to all shares beneficially owned, subject to community property laws, where applicable. Unless otherwise indicated, the address of each beneficial owner listed below is c/o Hepion Pharmaceuticals, Inc., 399 Thornall Street, First Floor, Edison, New Jersey 08837.
| Beneficial Owner | | Number of
Shares
Beneficially
Owned | | | Shares of
common stock
issuable upon
exercise of
stock options | | | Shares of
common stock
issuable upon
exercise of warrants | | | Percentage of
common stock
Beneficially owned | |
| Directors and Executive Officers | | | | | | | | | | | | | | | | |
| John Cavan | | | 14,936 | | | | 674,419 | | | | 123 | | | | * | |
| Dr. Robert Foster | | | 47,270 | | | | 1,069,162 | | | | - | | | | 1.4 | |
| Dr. Todd Hobbs | | | - | | | | 143,166 | | | | - | | | | * | |
| Gary S. Jacob | | | 12,197 | | | | 342,785 | | | | 123 | | | | * | |
| John Brancaccio | | | 7,039 | | | | 291,332 | | | | 25 | | | | * | |
| Timothy Block | | | - | | | | 291,276 | | | | - | | | | * | |
| Arnold Lippa | | | 138 | | | | 291,110 | | | | 123 | | | | * | |
| Petrus Wijngaard | | | 30,025 | | | | 250,000 | | | | - | | | | * | |
| All current executive officers and directors as a group (8 persons) | | | 111,605 | | | | 3,353,250 | | | | 394 | | | | 4.4 | |
| | | | | | | | | | | | | | | | | |
| * less than one percent. | | | | | | | | | | | | | | | | |
CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS
Master Services Agreement
We are a party to a Master Services Agreement dated June 19, 2014 with Clinical Supplies Management, Inc., or CSM, pursuant to which CSM provides us with pharmaceutical and clinical supply management services in support of our clinical research programs. James Sapirstein, the CEO of ContraVir, was a director of CSM, whichThe following is a private company, until October 15, 2016. For the fiscal years ended June 30, 2017 and 2016, we paid CSM approximately $481,000 and $550,000, respectively.
Consulting Agreement
On Junedescription of transactions or series of transactions since January 1, 2016, we entered into a consulting agreement with Gabriele Cerrone, a principal stockholder of the Company, pursuant2020 or any currently proposed transaction, to which we pay Mr. Cerrone $120,000 per year. The termwere or are to be a participant and in which the amount involved in the transaction or series of the consulting agreement is from June 1, 2016 to June 1, 2019. In addition, Mr. Cerrone was granted options to purchase 360,000 shares of common stock with an exercise price equal to $0.94 which options vest at the rate of 10,000 per month over 3 years. For the fiscal years ended June 30, 2017 and June 30, 2016 we paid Mr. Cerronetransactions exceeds $120,000, and $10,000, respectively.in which any of our directors, executive officers or persons who we know hold more than five percent of any class of our capital stock, including their immediate family members, had or will have a direct or indirect material interest, other than compensation arrangements with our directors and executive officers.
Sponsored Research AgreementNone
On May 29, 2015, we entered into a Sponsored Research Agreement with Baruch S. Blumberg Institute, or Blumberg Institute, pursuant to which we are sponsoring research by investigators affiliated with the Blumberg Institute with respect to CMX157. Dr. Timothy Block, a director of our Company, is President of the Blumberg Institute. For the fiscal years ended June 30, 2017 and 2016, we paid the Blumberg Institute approximately $75,000 and $127,500, respectively.
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Table of Contents
OTHER MATTERS
We have no knowledge of any other matters that may come before the Annual Meeting and doesdo not intend to present any other matters. However, if any other matters shall properly come before the meetingAnnual Meeting or any adjournment or postponement thereof, the persons soliciting proxies will have the discretion to vote as they see fit unless directed otherwise.
We will bear the cost of soliciting proxies in the accompanying form. In addition to the use of the mails,mailings, proxies may also be solicited by our directors, officers or other employees, personally or by telephone, facsimile or email, none of whom will be compensated separately for these solicitation activities. We have engaged Innisfree M&A Incorporated to assist in the solicitation of proxies. We will pay a fee of $30,000 plus reasonable out-of-pocket charges.
If you do not plan to attend the Annual Meeting, in order that your shares may be represented and in order to assure the required quorum, please sign, date and return your proxy promptly. In the event you are able to attend the Annual Meeting, at your request, we will cancel your previously submitted proxy.
DELIVERY OF PROXY MATERIALSADDITIONAL INFORMATION
We mayHouseholding
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy SEC rules regardingthe delivery of proxyrequirements for Proxy Availability Notice or other Annual Meeting materials includingwith respect to two or more stockholders sharing the proxy statement, annual report and notice,same address by delivering a single notice and, if applicable, a single set of proxyNotice or other Annual Meeting materials addressed to an address shared by two or more of ourthose stockholders. This delivery method can result in meaningfulprocess, which is commonly referred to as householding, potentially provides extra convenience for stockholders and cost savings for us. In ordercompanies. Stockholders who participate in householding will continue to take advantagebe able to access and receive separate proxy cards.
This year, a number of this opportunity, we may deliver onlybrokers with account holders who are our stockholders will be “householding” our proxy materials. A Notice or proxy materials will be delivered in one notice and, if applicable, a single set of proxy materialsenvelope to multiple stockholders who sharesharing an address unless contrary instructions arehave been received prior tofrom one or more of the mailing date. Similarly, ifaffected stockholders. Once you share an address with another stockholder and have received notice from your broker that they will be householding communications to your address, householding will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer wish to participate in householding and would prefer to receive a separate Notice or proxy materials, please notify your broker or call our Secretary at (732) 902-4000, or submit a request in writing to our Secretary, c/o Hepion Pharmaceuticals, Inc., 399 Thornall Street, First Floor, Edison, NJ 08837. Stockholders who currently receive multiple copies of our notice and/the Notice or other proxy materials you may write or call us at thetheir address and phone number belowwould like to request deliveryhouseholding of a single copy of the notice and, if applicable, other proxy materials in the future. We undertake totheir communications should contact their broker. In addition, we will promptly deliver, promptly upon written or oral request to the address or telephone number above, a separate copy of the notice and, if applicable, otherNotice or proxy materials as requested, to a stockholder at a shared address to which a single copy of the notice and/or other proxy materialsdocuments was delivered. If you hold stock as a record stockholder
Annual Reports and prefer to receive separateForm 10-K
Additional copies of a notice and, if applicable, other proxy materials either now or inour Annual Report on Form 10-K for the future, please contact our Investor Relations department atfiscal year ended December 31, 2021 may be obtained without charge by writing to the Secretary, Hepion Pharmaceuticals, Inc., 399 Thornall Street, First Floor, Edison, New Jersey 08837 or by telephone at (732) 902-4000. If your stock is held through a brokerage firm or bank and you prefer to receive separate copies of a Notice and, if applicable, other proxy materials either now or in the future, please contact your brokerage firm or bank.
EACH STOCKHOLDER IS URGED TO COMPLETE, DATE, SIGN AND PROMPTLY RETURN THE ENCLOSED PROXY.NJ 08837.
| By Order of the Board of Directors |
| |
| /s/ GARY S. JACOB |
| Gary S. Jacob |
| Gary S. Jacob, Ph.D. |
| Chairman of the Board of Directors |
Edison, New JerseyApril 29, 2022
October 27, 2017
APPENDIX A
HEPION PHARMACEUTICALS, INC.
2022 OMNIBUS EQUITY INCENTIVE PLAN
| Section 1. | Purpose of Plan. |
The name of the Plan is the Hepion Pharmaceuticals, Inc. 2022 Omnibus Equity Incentive Plan (the “Plan”). The purposes of the Plan are to (i) provide an additional incentive to selected employees, directors, and independent contractors of the Company or its Affiliates whose contributions are essential to the growth and success of the Company, (ii) strengthen the commitment of such individuals to the Company and its Affiliates, (iii) motivate those individuals to faithfully and diligently perform their responsibilities and (iv) attract and retain competent and dedicated individuals whose efforts will result in the long-term growth and profitability of the Company. To accomplish these purposes, the Plan provides that the Company may grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards or any combination of the foregoing.
For purposes of the Plan, the following terms shall be defined as set forth below:
28(a)
Table of Contents“Administrator” means the Board, or, if and to the extent the Board does not administer the Plan, the Committee in accordance with Section 3 hereof.
Appendix A(b)
CONTRAVIR PHARMACEUTICALS, INC.“Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified as of any date of determination.
AMENDMENT TO 2013 EQUITY INCENTIVE STOCK OPTION PLAN(c)“Applicable Laws” means the applicable requirements under U.S. federal and state corporate laws, U.S. federal and state securities laws, including the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where Awards are granted under the Plan, as are in effect from time to time.
4.(d)“Award” means any Option, Stock ReservedAppreciation Right, Restricted Stock, Restricted Stock Unit or Other Stock-Based Award granted under the Plan.
(e)“Award Agreement” means any written notice, agreement, contract or other instrument or document evidencing an Award, including through electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall determine, consistent with the Plan.
| (f) | “Beneficial Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act. |
| (g) | “Board” means the Board of Directors of the Company. |
| (h) | “Bylaws” mean the bylaws of the Company, as may be amended and/or restated from time to time. |
(i) “Cause” has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Cause,” then “Cause” means a Participant’s(i) conviction of a felony or a crime involving fraud or moral turpitude; (ii) theft, material act of dishonesty or fraud, intentional falsification of any employment or Company records, or commission of any criminal act which impairs Participant’s ability to perform appropriate employment duties for the Company; (iii) intentional or reckless conduct or gross negligence materially harmful to the Company or the successor to the Company after a Change in Control, including violation of a non-competition or confidentiality agreement; (iv) willful failure to follow lawful instructions of the person or body to which Participant reports; or (v) gross negligence or willful misconduct in the performance of Participant’s assigned duties. Cause shall not include mere unsatisfactory performance in the achievement of a Participant’s job objectives. Any voluntary termination of employment or service by the Participant in anticipation of an involuntary termination of the Participant’s employment or service, as applicable, for Cause shall be deemed to be a termination for Cause.
| (a) | “Change in Capitalization” means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Common Stock or other property), stock split, reverse stock split, share subdivision or consolidation, (iii) combination or exchange of shares or (iv) other change in corporate structure, which, in any such case, the Administrator determines, in its sole discretion, affects the Shares such that an adjustment pursuant to Section 5 hereof is appropriate. |
| (b) | “Change in Control” means the first occurrence of an event set forth in any one of the following paragraphs following the Effective Date: |
(1) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person which were acquired directly from the Company or any Affiliate thereof) representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (i) of paragraph (3) below; or
(2) the date on which individuals who constitute the Board as of the Effective Date and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended cease for any reason to constitute a majority of the number of directors serving on the Board; or
(3) there is consummated a merger or consolidation of the Company or any direct or indirect Subsidiary with any other corporation or other entity, other than (i) a merger or consolidation (A) which results in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary, fifty percent (50%) or more of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and (B) following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the Company, the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger or consolidation is then a Subsidiary, the ultimate parent thereof, or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliates) representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities; or
(4) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than (A) a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, more than fifty percent (50%) of the combined voting power of the voting securities of which are owned by stockholders of the Company following the completion of such transaction in substantially the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale or disposition of all or substantially all of the Company’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary, the ultimate parent thereof.
Notwithstanding the foregoing, (i) a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the holders of Common Stock immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions and (ii) to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to any Award that constitutes deferred compensation under Section 409A of the Code only if a change in the ownership or effective control of the Company or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred under Section 409A of the Code. For purposes of this definition of Change in Control, the term “Person” shall not include (i) the Company or any Subsidiary thereof, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary thereof, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company.
(j) “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto.
(m)“Committee” means any committee or subcommittee the Board may appoint to administer the Plan. Subject to the discretion of the Board, the Committee shall be composed entirely of individuals who meet the qualifications of a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act and any other qualifications required by the applicable stock exchange on which the Common Stock is traded.
(n) “Common Stock” means the common stock of the Company, par value $0.0001.
(o) “Company” means Hepion Pharmaceuticals, Inc., a Delaware corporation (or any successor company, except as the term “Company” is used in the definition of “Change in Control” above).
(p)“Disability” has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Disability,” then “Disability” means that a Participant, as determined by the Administrator in its sole discretion, (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company or an Affiliate thereof.
| (q) | “Effective Date” has the meaning set forth in Section 17 hereof. |
(r) “Eligible Recipient” means an employee, director or independent contractor of the Company or any Affiliate of the Company who has been selected as an eligible participant by the Administrator; provided, however, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation Right means an employee, non-employee director or independent contractor of the Company or any Affiliate of the Company with respect to whom the Company is an “eligible issuer of service recipient stock” within the meaning of Section 409A of the Code.
(s) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
(t) “Exempt Award” shall mean the following:
(1) An Award granted in assumption of, or in substitution for, outstanding awards previously granted by a corporation or other entity acquired by the Company or any of its Subsidiaries or with which the Company or any of its Subsidiaries combines by merger or otherwise. The terms and conditions of any such Awards may vary from the terms and conditions set forth in the Plan to the extent the Administrator at the time of grant may deem appropriate, subject to Applicable Laws.
(2) An award that an Eligible Recipient purchases at Fair Market Value (including awards that an Eligible Recipient elects to receive in lieu of fully vested compensation that is otherwise due) whether or not the Shares are delivered immediately or on a deferred basis.
(u) “Exercise Price” means, (i) with respect to any Option, the per share price at which a holder of such Option may purchase Shares issuable upon exercise of such Award, and (ii) with respect to a Stock Appreciation Right, the base price per share of such Stock Appreciation Right.
(v) “Fair Market Value” of a share of Common Stock or another security as of a particular date shall mean the fair market value as determined by the Administrator in its sole discretion; provided, that, (i) if the Common Stock or other security is admitted to trading on a national securities exchange, the fair market value on any date shall be the closing sale price reported on such date, or if no shares were traded on such date, on the last preceding date for which there was a sale of a share of Common Stock on such exchange, or (ii) if the Common Stock or other security is then traded in an over-the-counter market, the fair market value on any date shall be the average of the closing bid and asked prices for such share in such over-the-counter market for the last preceding date on which there was a sale of such share in such market.
| (w) | “Free Standing Rights” has the meaning set forth in Section 8. |
(x) “Good Reason” has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Good Reason,” “Good Reason” and any provision of this Plan that refers to “Good Reason” shall not be applicable to such Participant.
(y) “Grandfathered Arrangement” means an Award which is provided pursuant to a written binding contract in effect on November 2, 2017, and which was not modified in any material respect on or after November 2, 2017, within the meaning of Section 13601(e)(2) of P.L. 115.97, as may be amended from time to time (including any rules and regulations promulgated thereunder).
| (z) | “Incentive Compensation” means annual cash bonus and any Award. |
(aa) “ISO” means an Option intended to be and designated as an “incentive stock option” within the meaning of Section 422 of the Code.
(bb) “Nonqualified Stock Option” shall mean an Option that is not designated as an ISO.
(cc) “Option” means an option to purchase shares of Common Stock granted pursuant to Section 7 hereof. The term “Option” as used in the Plan includes the terms “Nonqualified Stock Option” and “ISO.”
(dd) “Other Stock-Based Award” means a right or other interest granted pursuant to Section 10 hereof that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Common Stock, including, but not limited to, unrestricted Shares, dividend equivalents or performance units, each of which may be subject to the attainment of performance goals or a period of continued provision of service or employment or other terms or conditions as permitted under the Plan.
Subject(ee) “Participant” means any Eligible Recipient selected by the Administrator, pursuant to adjustmentthe Administrator’s authority provided for in Section 3 below, to receive grants of Awards, and, upon his or her death, his or her successors, heirs, executors and administrators, as providedthe case may be.
(ff) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof.
(gg) “Plan” means this 2022 Omnibus Equity Incentive Plan.
(hh) “Prior Plan” means the Company’s 2013 Equity Incentive Plan, as in effect immediately prior to the Effective Date.
(ii) “Related Rights” has the meaning set forth in Section 8.
(jj) “Restricted Period” has the meaning set forth in Section 9.
(kk) “Restricted Stock” means a Share granted pursuant to Section 9 below subject to certain restrictions that lapse at the end of a specified period (or periods) of time and/or upon attainment of specified performance objectives.
(ll) “Restricted Stock Unit” means the right granted pursuant to Section 9 hereof to receive a Share at the end of a specified restricted period (or periods) of time and/or upon attainment of specified performance objectives.
(mm) “Rule 16b-3” has the meaning set forth in Section 3.
(nn) “Section 16 Officer” means any officer of the Company whom the Board has determined is subject to the reporting requirements of Section 16 of the Exchange Act, whether or not such individual is a Section 16 Officer at the time the determination to recoup compensation is made.
(oo) “Shares” means Common Stock reserved for issuance under the Plan, as adjusted pursuant to the Plan, and any successor (pursuant to a merger, consolidation or other reorganization) security.
(pp) “Stock Appreciation Right” means a right granted pursuant to Section 8 hereof to receive an amount equal to the excess, if any, of (i) the aggregate Fair Market Value, as of the date such Award or portion thereof is surrendered, of the Shares covered by such Award or such portion thereof, over (ii) the aggregate Exercise Price of such Award or such portion thereof.
(qq) “Subsidiary” means, with respect to any Person, as of any date of determination, any other Person as to which such first Person owns or otherwise controls, directly or indirectly, more than 50% of the voting shares or other similar interests or a totalsole general partner interest or managing member or similar interest of 10,700,000 sharessuch other Person.
(rr) “Transfer” has the meaning set forth in Section 15.
| Section 3. | Administration. |
(a)The Plan shall be administered by the Administrator and shall be administered, to the extent applicable, in accordance with Rule 16b-3 under the Exchange Act (“Rule 16b-3”).
(b) Pursuant to the terms of the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated to it by the Board, shall have the power and authority, without limitation:
| (1) | to select those Eligible Recipients who shall be Participants; |
(2) to determine whether and to what extent Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards or a combination of any of the foregoing, are to be granted hereunder to Participants;
| (3) | to determine the number of Shares to be covered by each Award granted hereunder; |
| (1) | to determine the terms and conditions, not inconsistent with the terms of the Plan, of each Award granted hereunder (including, but not limited to, (i) the restrictions applicable to Restricted Stock or Restricted Stock Units and the conditions under which restrictions applicable to such Restricted Stock or Restricted Stock Units shall lapse, (ii) the performance goals and periods applicable to Awards, (iii) the Exercise Price of each Option and each Stock Appreciation Right or the purchase price of any other Award, (iv) the vesting schedule and terms applicable to each Award, (v) the number of Shares or amount of cash or other property subject to each Award and (vi) subject to the requirements of Section 409A of the Code (to the extent applicable) any amendments to the terms and conditions of outstanding Awards, including, but not limited to, extending the exercise period of such Awards and accelerating the payment schedules of such Awards and/or, to the extent specifically permitted under the Plan, accelerating the vesting schedules of such Awards); |
| (2) | to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing Awards; |
| (3) | to determine the Fair Market Value in accordance with the terms of the Plan; |
| (4) | to determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting termination of the Participant’s service or employment for purposes of Awards granted under the Plan; |
| (5) | to adopt, alter and repeal such administrative rules, regulations, guidelines and practices governing the Plan as it shall from time to time deem advisable; |
| (6) | to construe and interpret the terms and provisions of, and supply or correct omissions in, the Plan and any Award issued under the Plan (and any Award Agreement relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and authorities either specifically granted under the Plan or necessary and advisable in the administration of the Plan; and |
| (7) | to prescribe, amend and rescind rules and regulations relating to sub-plans established for the purpose of satisfying applicable non-United States laws or for qualifying for favorable tax treatment under applicable non-United States laws, which rules and regulations may be set forth in an appendix or appendixes to the Plan. |
(c) Subject to Section 5, neither the Board nor the Committee shall have the authority to reprice or cancel and regrant any Award at a lower exercise, base or purchase price or cancel any Award with an exercise, base or purchase price in exchange for cash, property or other Awards without first obtaining the approval of the Company’s common stock, par value $0.0001 perstockholders.
(d) All decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all Persons, including the Company and the Participants.
| (e) | The expenses of administering the Plan shall be borne by the Company and its Affiliates. |
(f) If at any time or to any extent the Board shall not administer the Plan, then the functions of the Administrator specified in the Plan shall be exercised by the Committee. Except as otherwise provided in the Articles of Incorporation or Bylaws of the Company, any action of the Committee with respect to the administration of the Plan shall be taken by a majority vote at a meeting at which a quorum is duly constituted or unanimous written consent of the Committee’s members.
| Section 4. | Shares Reserved for Issuance Under the Plan. |
(a) Subject to Section 5 hereof, the number of shares of Common Stock that are reserved and available for issuance pursuant to Awards granted under the Plan shall be equal to the sum of (i) 7,500,000 shares, plus (ii) the number of shares of Common Stock reserved, but unissued under the Prior Plan; and (iii) the number of shares of Common Stock underlying forfeited awards under the Prior Plan; provided, that, shares of Common Stock issued under the Plan with respect to an Exempt Award shall not count against such share (the “limit. Following the Effective Date, no further awards shall be issued under the Prior Plan, but all awards under the Prior Plan which are outstanding as of the Effective Date (including any Grandfathered Arrangement) shall continue to be governed by the terms, conditions and procedures set forth in the Prior Plan and any applicable Award Agreement. It is specifically understood that option awards that were granted by the Company on May 18, 2021 pursuant to the Prior Plan shall instead be governed by this Plan (and shall be deemed Options) and their respective award agreements. It is specifically understood that option awards that were granted by the Company on May 18, 2021 pursuant to the Prior Plan shall be instead be governed by this Plan (and shall be deemed Options) and their respective award agreements.
(a) Shares issued under the Plan may, in whole or in part, be authorized but unissued Shares or Shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise. If an Award entitles the Participant to receive or purchase Shares, the number of Shares covered by such Award or to which such Award relates shall be counted on the date of grant of such Award against the aggregate number of Shares available for granting Awards under the Plan. If any Shares subject to an Award are forfeited, cancelled, exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of Shares to the Participant, the Shares with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for granting Awards under the Plan. Notwithstanding the foregoing, (i) Shares surrendered or withheld as payment of either the Exercise Price of an Award (including Shares otherwise underlying a Stock”) Appreciation Right that are retained by the Company to account for the Exercise Price of such Stock Appreciation Right) and/or withholding taxes in respect of an Award and (ii) any Shares reacquired by the Company on the open market or otherwise using cash proceeds from the exercise of Options shall no longer be available for grant under the Plan. In addition, (i) to the extent an Award is denominated in shares of Common Stock, but paid or settled in cash, the number of shares of Common Stock with respect to which such payment or settlement is made shall again be available for grants of Awards pursuant to the Plan and (ii) shares of Common Stock underlying Awards that can only be settled in cash shall not be counted against the aggregate number of shares of Common Stock available for Awards under the Plan. Upon the exercise of any Award granted in tandem with any other Awards, such related Awards shall be cancelled to the extent of the number of Shares as to which the Award is exercised and, notwithstanding the foregoing, such number of Shares shall no longer be available for grant under the Plan.
| (b) | No more than 7,500,000 Shares shall be issued pursuant to the exercise of ISOs. |
(c) Director Compensation Limits. Notwithstanding any provision to the contrary in the Plan, the sum of the grant date Fair Market Value of equity-based Awards (determined as of the grant date in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, or any successor thereto) plus any cash fees paid by the Company for serving as a non-employee director of the Board during any calendar year shall not exceed $500,000, increased to $750,000 in the calendar year of his or her initial service as a non-employee director.
| Section 5. | Equitable Adjustments. |
In the event of any Change in Capitalization, an equitable substitution or proportionate adjustment shall be made in (i) the aggregate number and kind of securities reserved for issuance under the Plan pursuant to Section 4, (ii) the kind, number of securities subject to, and the Exercise Price subject to outstanding Options and Stock Appreciation Rights granted under the Plan, (iii) the kind, number and purchase price of Shares or other securities or the amount of cash or amount or type of other property subject to outstanding Restricted Stock, Restricted Stock Units or Other Stock-Based Awards granted under the Plan; and/or (iv) the terms and conditions of any outstanding Awards (including, without limitation, any applicable performance targets or criteria with respect thereto); provided,however, that any fractional shares resulting from the adjustment shall be eliminated. Such other equitable substitutions or adjustments shall be made as may be determined by the Administrator, in its sole discretion. Without limiting the generality of the foregoing, in connection with a Change in Capitalization, the Administrator may provide, in its sole discretion, but subject in all events to the requirements of Section 409A of the Code, for the cancellation of any outstanding Award granted hereunder in exchange for payment in cash or other property having an aggregate Fair Market Value equal to the Fair Market Value of the Shares, cash or other property covered by such Award, reduced by the aggregate Exercise Price or purchase price thereof, if any; provided, however, that if the Exercise Price or purchase price of any outstanding Award is equal to or greater than the Fair Market Value of the shares of Common Stock, cash or other property covered by such Award, the Administrator may cancel such Award without the payment of any consideration to the Participant. Further, without limiting the generality of the foregoing, with respect to Awards subject to foreign laws, adjustments made hereunder shall be made in compliance with applicable requirements. Except to the extent determined by the Administrator, any adjustments to ISOs under this Section 5 shall be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3) of the Code. The Administrator’s determinations pursuant to this Section 5 shall be final, binding and conclusive.
The Participants in the Plan shall be selected from time to time by the Administrator, in its sole discretion, from those individuals that qualify as Eligible Recipients.
(a)General. Options granted under the Plan shall be designated as Nonqualified Stock Options or ISOs. Each Participant who is granted an Option shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability of the Option, and whether the Option is intended to be an ISO or a Nonqualified Stock Option (and in the event the Award Agreement has no such designation, the Option shall be a Nonqualified Stock Option). The provisions of each Option need not be the same with respect to each Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted under the Plan shall be subject to the Plan.terms and conditions set forth in this Section 7 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award Agreement.
(b)Exercise Price. The sharesExercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion at the time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the Fair Market Value of a share of Common Stock on the date of grant.
(c)Option Term. The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten (10) years after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable provisions in the Plan and the Award Agreement. Notwithstanding the foregoing, subject to Section 4(d) of the Plan, the Administrator shall have the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as the Administrator, in its sole discretion, deems appropriate.
(d)Exercisability. Each Option shall be exercisable at such time or times and subject to such terms and conditions, including the attainment of performance goals, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator may also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion.
(e)Method of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number of whole Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect to any Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in the form of unrestricted Shares already owned by the Participant which have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved by the Administrator and permitted by Applicable Laws or (iv) any combination of the foregoing.
(f)ISOs. The terms and conditions of ISOs granted hereunder shall be subject to the provisions of Section 422 of the Code and the terms, conditions, limitations and administrative procedures established by the Administrator from time to time in accordance with the Plan. At the discretion of the Administrator, ISOs may be granted only to an employee of the Company, its “parent corporation” (as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company.
(1) ISO Grants to 10% Stockholders. Notwithstanding anything to the contrary in the Plan, shall consistif an ISO is granted to a Participant who owns shares representing more than ten percent (10%) of unissuedthe voting power of all classes of shares treasury sharesof the Company, its “parent corporation” (as such term is defined in Section 424(e) of the Code) or previously issued shares held by anya Subsidiary of the Company, the term of the ISO shall not exceed five (5) years from the time of grant of such ISO and the Exercise Price shall be at least one hundred and ten percent (110%) of the Fair Market Value of the Shares on the date of grant.
(2)$100,000 Per Year Limitation For ISOs. To the extent the aggregate Fair Market Value (determined on the date of grant) of the Shares for which ISOs are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds $100,000, such excess ISOs shall be treated as Nonqualified Stock Options.
(3)Disqualifying Dispositions. Each Participant awarded an ISO under the Plan shall notify the Company in writing immediately after the date the Participant makes a “disqualifying disposition” of any Share acquired pursuant to the exercise of such ISO. A “disqualifying disposition” is any disposition (including any sale) of such Shares before the later of (i) two years after the date of grant of the ISO and (ii) one year after the date the Participant acquired the Shares by exercising the ISO. The Company may, if determined by the Administrator and in accordance with procedures established by it, retain possession of any Shares acquired pursuant to the exercise of an ISO as agent for the applicable Participant until the end of the period described in the preceding sentence, subject to complying with any instructions from such Participant as to the sale of such Shares.
(h)Rights as Stockholder. A Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights of a stockholder with respect to the Shares subject to an Option until the Participant has given written notice of the exercise thereof, and has paid in full for such Shares and has satisfied the requirements of Section 15 hereof.
(i)Termination of Employment or Service. Treatment of an Option upon termination of employment of a Participant shall be provided for by the Administrator in the Award Agreement.
(j)Other Change in Employment or Service Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment status or service status of a Participant, in the discretion of the Administrator.
| Section 8. | Stock Appreciation Rights. |
(a)General. Stock Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part of any Option granted under the Plan (“Related Rights”). Related Rights may be granted either at or after the time of the grant of such Option. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants of Stock Appreciation Rights shall be made. Each Participant who is granted a Stock Appreciation Right shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the number of sharesShares to be awarded, the Exercise Price per Share, and all other conditions of Stock Appreciation Rights. Notwithstanding the foregoing, no Related Right may be granted for more Shares than are subject to the Option to which it relates. The provisions of Stock Appreciation Rights need not be the same with respect to each Participant. Stock Appreciation Rights granted under the Plan shall be and is hereby reserved for such purpose. Any of such shares of Stock that may remain unissued and that are not subject to outstanding Options at the terminationfollowing terms and conditions set forth in this Section 8 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall ceasedeem desirable, as set forth in the applicable Award Agreement.
(b)Awards; Rights as Stockholder. A Participant shall have no rights to be reserved fordividends or any other rights of a stockholder with respect to the purposesshares of Common Stock, if any, subject to a Stock Appreciation Right until the Participant has given written notice of the Plan, but until termination of the Plan the Company shall at all times reserve a sufficient number of shares of Stock to meetexercise thereof and has satisfied the requirements of Section 15 hereof.
(c)Exercise Price. The Exercise Price of Shares purchasable under a Stock Appreciation Right shall be determined by the Administrator in its sole discretion at the time of grant, but in no event shall the exercise price of a Stock Appreciation Right be less than one hundred percent (100%) of the Fair Market Value of a share of Common Stock on the date of grant.
(1) Stock Appreciation Rights that are Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Administrator in the applicable Award Agreement.
(2) Stock Appreciation Rights that are Related Rights shall be exercisable only at such time or times and to the extent that the Options to which they relate shall be exercisable in accordance with the provisions of Section 7 hereof and this Section 8 of the Plan.
| (e) | Payment Upon Exercise. |
(1) Upon the exercise of a Free Standing Right, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair Market Value as of the date of exercise over the Exercise Price per share specified in the Free Standing Right multiplied by the number of Shares in respect of which the Free Standing Right is being exercised.
(2) A Related Right may be exercised by a Participant by surrendering the applicable portion of the related Option. Upon such exercise and surrender, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair Market Value as of the date of exercise over the Exercise Price specified in the related Option multiplied by the number of Shares in respect of which the Related Right is being exercised. Options which have been so surrendered, in whole or in part, shall no longer be exercisable to the extent the Related Rights have been so exercised.
(3) Notwithstanding the foregoing, the Administrator may determine to settle the exercise of a Stock Appreciation Right in cash (or in any combination of Shares and cash).
(f)Termination of Employment or Service. Treatment of a Stock Appreciation Right upon termination of employment of a Participant shall be provided for by the Administrator in the Award Agreement.
(g) Term.
(1) The term of each Free Standing Right shall be fixed by the Administrator, but no Free Standing Right shall be exercisable more than ten (10) years after the date such right is granted.
(2) The term of each Related Right shall be the term of the Option to which it relates, but no Related Right shall be exercisable more than ten (10) years after the date such right is granted.
(h) Other Change in Employment or Service Status. Stock Appreciation Rights shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment or service status of a Participant, in the discretion of the Administrator.
| Section 9. | Restricted Stock and Restricted Stock Units. |
(a)General. Restricted Stock or Restricted Stock Units may be issued under the Plan. ShouldThe Administrator shall determine the Eligible Recipients to whom, and the time or times at which, Restricted Stock or Restricted Stock Units shall be made. Each Participant who is granted Restricted Stock or Restricted Stock Units shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded; the price, if any, Option or awardto be paid by the Participant for the acquisition of Restricted Stock expire or be canceled priorRestricted Stock Units; the period of time restrictions, performance goals or other conditions that apply to its exerciseTransferability, delivery or vesting of such Awards (the “Restricted Period”); and all other conditions applicable to the Restricted Stock and Restricted Stock Units. If the restrictions, performance goals or conditions established by the Administrator are not attained, a Participant shall forfeit his or her Restricted Stock or Restricted Stock Units, in fullaccordance with the terms of the grant. The provisions of the Restricted Stock or shouldRestricted Stock Units need not be the same with respect to each Participant.
(a) Awards and Certificates. Except as otherwise provided below in Section 9(c), (i) each Participant who is granted an Award of Restricted Stock may, in the Company’s sole discretion, be issued a share certificate in respect of such Restricted Stock; and (ii) any such certificate so issued shall be registered in the name of the Participant, and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to any such Award. The Company may require that the share certificates, if any, evidencing Restricted Stock granted hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed, and that, as a condition of any Award of Restricted Stock, the Participant shall have delivered a share transfer form, endorsed in blank, relating to the Shares covered by such Award. Certificates for shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture in such Restricted Stock Award.
With respect to Restricted Stock Units to be settled in Shares, at the expiration of the Restricted Period, share certificates in respect of the shares of Common Stock underlying such Restricted Stock Units may, in the Company’s sole discretion, be delivered to the Participant, or his legal representative, in a number equal to the number of shares of Common Stock underlying the Restricted Stock Units Award. Notwithstanding anything in the Plan to the contrary, any Restricted Stock or Restricted Stock Units to be settled in Shares (at the expiration of the Restricted Period, and whether before or after any vesting conditions have been satisfied) may, in the Company’s sole discretion, be issued in uncertificated form. Further, notwithstanding anything in the Plan to the contrary, with respect to Restricted Stock Units, at the expiration of the Restricted Period, Shares, or cash, as applicable, shall promptly be issued (either in certificated or uncertificated form) to the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section 409A of the Code, and such issuance or payment shall in any event be made within such period as is required to avoid the imposition of a tax under Section 409A of the Code.
(b)Restrictions and Conditions. The Restricted Stock or Restricted Stock Units granted pursuant to this Section 9 shall be subject to the following restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the time of grant or, subject to Section 409A of the Code where applicable, thereafter:
(1) The Administrator may, in its sole discretion, provide for the lapse of restrictions in installments and may accelerate or waive such restrictions in whole or in part based on such factors and such circumstances as the Administrator may determine, in its sole discretion, including, but not limited to, the attainment of certain performance goals, the Participant’s termination of employment or service with the Company or any Affiliate thereof, or the Participant’s death or Disability. Notwithstanding the foregoing, upon a Change in Control, the outstanding Awards shall be subject to Section 11 hereof.
(2) Except as provided in the applicable Award Agreement, the Participant shall generally have the rights of a stockholder of the Company with respect to Restricted Stock during the Restricted Period; provided, however, that dividends declared during the Restricted Period with respect to an Award, shall only become payable if (and to the extent) the underlying Restricted Stock vests. Except as provided in the applicable Award Agreement, the Participant shall generally not have the rights of a stockholder with respect to Shares subject to Restricted Stock Units during the Restricted Period; provided, however, that, subject to Section 409A of the Code, an amount equal to dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock Units shall, unless otherwise set forth in an Award Agreement, be paid to the Participant at the time (and to the extent) Shares in respect of the related Restricted Stock Units are delivered to the Participant. Certificates for Shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture in respect of such Restricted Stock or Restricted Stock Units, except as the Administrator, in its sole discretion, shall otherwise determine.
(1) The rights of Participants granted Restricted Stock or Restricted Stock Units upon termination of employment or service as a director or independent contractor to the Company or to any Affiliate thereof terminates for any reason during the Restricted Period shall be set forth in the Award Agreement.
(b)Form of Settlement. The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof) that any Restricted Stock Unit represents the right to receive the amount of cash per unit that is determined by the Administrator in connection with the Award.
| Section 10. | Other Stock-Based Awards. |
Other Stock-Based Awards may be issued under the Plan. Subject to the provisions of the Plan, the Administrator shall have sole and complete authority to determine the individuals to whom and the time or times at which such Other Stock-Based Awards shall be granted. Each Participant who is granted an Other Stock-Based Award shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the number of shares of Common Stock to be granted pursuant to such Other Stock-Based Awards, or the manner in which such Other Stock-Based Awards shall be settled (e.g., in shares of Common Stock, cash or other property), or the conditions to the vesting and/or payment or settlement of such Other Stock-Based Awards (which may include, but not be limited to, achievement of performance criteria) and all other terms and conditions of such Other Stock-Based Awards. In the event that the Administrator grants a bonus in the form of Shares, the Shares constituting such bonus shall, as determined by the Administrator, be evidenced in uncertificated form or by a book entry record or a certificate issued in the name of the Participant to whom such grant was made and delivered uponto such Participant as soon as practicable after the exercisedate on which such bonus is payable. Notwithstanding anything set forth in the Plan to the contrary, any dividend or dividend equivalent Award issued hereunder shall be subject to the same restrictions, conditions and risks of forfeiture as apply to the underlying Award.
| Section 11. | Change in Control. |
Unless otherwise determined by the Administrator and evidenced in an Award Agreement, in the event that (a) a Change in Control occurs, and (b) the Participant’s employment is involuntarily terminated within 24 months following a Change in Control, provided that such termination does not result from the Participant’s termination for disability, cause or gross misconduct then, the Administrator, in its sole and absolute discretion, may:
| (a) | provide that any unvested or unexercisable portion of any Award carrying a right to exercise become fully vested and exercisable; |
and
(b) cause the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to an Award granted under the Plan to lapse and such Awards shall be deemed fully vested and any performance conditions imposed with respect to such Awards shall be deemed to be fully achieved at target performance levels.
If the Administrator determines in its discretion pursuant to Section 3(b)(4) hereof to accelerate the vesting of Options and/or Share Appreciation Rights in fullconnection with a Change in Control, the Administrator shall also have discretion in connection with such action to provide that all Options and/or Stock Appreciation Rights outstanding immediately prior to such Change in Control shall expire on the effective date of such Change in Control.
| Section 12. | Amendment and Termination. |
The Board may amend, alter or terminate the Plan at any time, but no amendment, alteration or termination shall be made that would impair the rights of a Participant under any Award theretofore granted without such Participant’s consent. The Board shall obtain approval of the Company’s stockholders for any amendment that would require such approval in order to satisfy the requirements of any rules of the stock exchange on which the Common Stock is traded or other Applicable Law. Subject to Section 3(c), the Administrator may amend the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Section 5 of the Plan and the immediately preceding sentence, no such amendment shall materially impair the rights of any Participant without his or her consent.
| Section 13. | Unfunded Status of Plan. |
The Plan is intended to constitute an “unfunded” plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company.
| Section 14. | Withholding Taxes. |
Each Participant shall, no later than the date as of which the value of an Award first becomes includible in the gross income of such Participant for purposes of applicable taxes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of an amount up to the maximum statutory tax rates in the Participant’s applicable jurisdiction with respect to the Award, as determined by the Company. The obligations of the Company under the Plan shall be conditional on the making of such payments or arrangements, and the Company shall, to the extent permitted by Applicable Laws, have the right to deduct any such taxes from any payment of any kind otherwise due to such Participant. Whenever cash is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount sufficient to satisfy any applicable withholding tax requirements related thereto. Whenever Shares or property other than cash are to be delivered pursuant to an Award, the Company shall have the right to require the Participant to remit to the Company in cash an amount sufficient to satisfy any related taxes to be withheld and applied to the tax obligations; provided, that, with the approval of the Administrator, a Participant may satisfy the foregoing requirement by either (i) electing to have the Company withhold from delivery of Shares or other property, as applicable, or (ii) delivering already owned unrestricted shares of Common Stock, in each case, having a value not exceeding the applicable taxes to be withheld and applied to the tax obligations. Such already owned and unrestricted shares of Common Stock shall be valued at their Fair Market Value on the date on which the amount of tax to be withheld is determined and any fractional share amounts resulting therefrom shall be settled in cash. Such an election may be made with respect to all or any portion of the Shares to be delivered pursuant to an award. The Company may also use any other method of obtaining the necessary payment or proceeds, as permitted by Applicable Laws, to satisfy its withholding obligation with respect to any Award.
| Section 15. | Transfer of Awards. |
Until such time as the Awards are fully vested and/or exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment, mortgage, hypothecation, transfer, charge, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any Award or any agreement or commitment to do any of the foregoing (each, a “Transfer”) by any holder thereof in violation of the provisions of the Plan or an Award Agreement will be valid, except with the prior written consent of the Administrator, which consent may be granted or withheld in the sole discretion of the Administrator. Any purported Transfer of an Award or any economic benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio and shall not create any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit or interest therein transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of such Shares or other property underlying such Award. Unless otherwise determined by the Administrator in accordance with the provisions of the immediately preceding sentence, an Option or awarda Stock Appreciation Right may be exercised, during the lifetime of Restricted Stockthe Participant, only by the Participant or, during any period during which the Participant is under a legal Disability, by the Participant’s guardian or legal representative.
| Section 16. | Continued Employment or Service. |
Neither the adoption of the Plan nor the grant of an Award shall confer upon any Eligible Recipient any right to continued employment or service with the Company or any Affiliate thereof, as the case may be, reduced fornor shall it interfere in any reason,way with the sharesright of Stockthe Company or any Affiliate thereof to terminate the employment or service of any of its Eligible Recipients at any time.
| Section 17. | Effective Date. |
The Plan was re-approved by the Board on April 14, 2022 and shall be adopted and become effective on the date that it is approved by the Company’s stockholders (the “Effective Date”).
| Section 18. | Electronic Signature. |
Participant’s electronic signature of an Award Agreement shall have the same validity and effect as a signature affixed by hand.
No Award shall be granted pursuant to the Plan on or after the tenth anniversary of the Effective Date, but Awards theretofore subjectgranted may extend beyond that date.
| Section 20. | Securities Matters and Regulations. |
(a) Notwithstanding anything herein to such Optionthe contrary, the obligation of the Company to sell or Restricted Stock maydeliver Shares with respect to any Award granted under the Plan shall be subject to future Optionsall Applicable Laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or Restrictedappropriate by the Administrator. The Administrator may require, as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient of such shares make such agreements and representations, and that such certificates bear such legends, as the Administrator, in its sole discretion, deems necessary or advisable.
(b) Each Award is subject to the requirement that, if at any time the Administrator determines that the listing, registration or qualification of Shares is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Shares, no such Award shall be granted or payment made or Shares issued, in whole or in part, unless listing, registration, qualification, consent or approval has been effected or obtained free of any conditions not acceptable to the Administrator.
(c) In the event that the disposition of Shares acquired pursuant to the Plan is not covered by a then current registration statement under the Securities Act and is not otherwise exempt from such registration, such Shares shall be restricted against transfer to the extent required by the Securities Act or regulations thereunder, and the Administrator may require a Participant receiving Common Stock pursuant to the Plan, as a condition precedent to receipt of such Common Stock, to represent to the Company in writing that the Common Stock acquired by such Participant is acquired for investment only and not with a view to distribution.
| Section 21. | Section 409A of the Code. |
The Plan as well as payments and benefits under the Plan are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Participant shall not be considered to have terminated employment or service with the Company for purposes of the Plan and no payment shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred a “separation from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. Any payments described in the Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless Applicable Law requires otherwise. Notwithstanding anything to the contrary in the Plan, to the extent that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the Code. The Company makes no representation that any or all of the payments or benefits described in this Plan will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.
| Section 22. | Notification of Election Under Section 83(b) of the Code. |
If any Participant shall, in connection with the acquisition of shares of Common Stock under the Plan, make the election permitted under Section 83(b) of the Code, such Participant shall notify the Company of such election within ten (10) days after filing notice of the election with the Internal Revenue Service.
| Section 23. | No Fractional Shares. |
No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Administrator shall determine whether cash, other Awards, or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.
A Participant may file with the Administrator a written designation of a beneficiary on such form as may be prescribed by the Administrator and may, from time to time, amend or revoke such designation. If no designated beneficiary survives the Participant, the executor or administrator of the Participant’s estate shall be deemed to be the Participant’s beneficiary.
| Section 25. | Paperless Administration. |
In the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.
If any provision of the Plan is held to be invalid or unenforceable, the other provisions of the Plan shall not be affected but shall be applied as if the invalid or unenforceable provision had not been included in the Plan.
(a) If the Company is required to prepare a financial restatement due to the material non-compliance of the Company with any financial reporting requirement, then the Committee may require any Section 16 Officer to repay or forfeit to the Company, and each Section 16 Officer agrees to so repay or forfeit, that part of the Incentive Compensation received by that Section 16 Officer during the three-year period preceding the publication of the restated financial statement that the Committee determines was in excess of the amount that such Section 16 Officer would have received had such Incentive Compensation been calculated based on the financial results reported in the restated financial statement. The Committee may take into account any factors it deems reasonable in determining whether to seek recoupment of previously paid Incentive Compensation and how much Incentive Compensation to recoup from each Section 16 Officer (which need not be the same amount or proportion for each Section 16 Officer), including any determination by the Committee that a Section 16 Officer engaged in fraud, willful misconduct or committed grossly negligent acts or omissions which materially contributed to the events that led to the financial restatement. The amount and form of the Incentive Compensation to be recouped shall be determined by the Committee in its sole and absolute discretion, and recoupment of Incentive Compensation may be made, in the Committee’s sole and absolute discretion, through the cancellation of vested or unvested Awards, cash repayment or both.
(a) Notwithstanding any other provisions in this Plan, any Award which is subject to recovery under any Applicable Laws, government regulation or stock exchange listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to such Applicable Law, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such law, government regulation or stock exchange listing requirement).
| Section 28. | Governing Law. |
The Plan shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles of conflicts of law of such state.
| Section 29. | Indemnification. |
To the extent allowable pursuant to applicable law, each member of the Board and the Administrator and any officer or other employee to whom authority to administer any component of the Plan is designated shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be a party or in which he or she may be involved by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding against him or her; provided, however, that he or she gives the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such individuals may be entitled pursuant to the Company’s Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
| Section 30. | Titles and Headings, References to Sections of the Code or Exchange Act. |
The titles and headings of the sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. References to sections of the Code or the Exchange Act shall include any amendment or successor thereto.
The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company.
| Section 32. | Relationship to other Benefits. |
No payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare, or other benefit plan of the Company or any Affiliate except whereto the extent otherwise expressly provided in writing in such reissuanceother plan or an agreement thereunder.
APPENDIX B
CERTIFICATE OF AMENDMENT
to the
CERTIFICATE OF INCORPORATION
of
HEPION PHARMACEUTICALS, INC.
HEPION PHARMACEUTICALS, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify as follows:
FIRST: The name of the Corporation is inconsistentHepion Pharmaceuticals, Inc. The Certificate of Incorporation was filed with the Secretary of State of the State of Delaware (the “Secretary of State”) on May 15, 2013, as amended on May 25, 2018; May 31, 2019; and July 23, 2019 ( the “Certificate of Incorporation”).
SECOND: ARTICLE IV, SECTION 1 of the Corporation’s Certificate of Incorporation shall be amended and restated in its entirety to read as follows:
Section 1. Number of Authorized Shares. The total number of shares of stock which the Corporation shall have the authority to issue shall be [] ([]) shares. The Corporation shall be authorized to issue two classes of shares of stock, designated, “Common Stock” and “Preferred Stock.” The Corporation shall be authorized to issue [] ([]) shares of Common Stock, each share to have a par value of
$0.0001 per share, and Twenty Million (20,000,000) shares of Preferred Stock, each share to have a par value of $0.0001 per share.
THIRD: The stockholders of the Corporation have duly approved the foregoing amendment in accordance with the provisions of Section 162(m)242 of the Code where qualification as performance-based compensation under Section 162(m)General Corporation Law of the Code is intended.State of Delaware.
1IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be duly adopted and executed in its corporate name and on its behalf by its duly authorized officer as of the day of , 2022.
| HEPION PHARMACEUTICALS, INC. | |
| |
| By: | | |
| Name: | |
| Title: | |
PROXY CARD
HEPION PHARMACEUTICALS, INC.
PROXY FOR ANNUAL MEETING TO BE HELD ON DECEMBER 13, 2017 JUNE 24, 2022
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints, James SapirsteinRobert Foster, Ph.D. and John Cavan, and each of them, as proxies, each with full power of substuon,substitution, to represent and to vote all the shares of common stock of ContraVir Pharmaceucals,Hepion Pharmaceuticals, Inc. (the “Company”“Company”), which the undersigned would be entledentitled to vote, at the Company’s Annual MeengMeeting of Stockholders to be held on December 13, 2017June 24, 2022 and at any adjournments thereof, subject to the direconsdirections indicated on this Proxy Card.
In their discreon,discretion, the proxy is authorized to vote upon any other maermatter that may properly come before the meengmeeting or any adjournments or postponements thereof.
THIS PROXY WILL BE VOTED IN ACCORDANCE WITH THE SPECIFICATIONS MADE, BUT IF NO CHOICES ARE INDICATED, THIS PROXY WILL BE VOTED FOR THE ELECTION OF ALL NOMINEES AND FOR THE PROPOSALS LISTED BELOW. ON THE REVERSE SIDE.
This proxy is governed by the laws of the State of Delaware.
IMPORTANT—This Proxy must be signed and dated below. on the reverse side.
Important NoceNotice Regarding the Availability of Proxy Materials for the Annual Meeting of Stockholders to Be Held on December 13, 2017June 24, 2022 at 9:00 a.m.am local metime at the Company’s okcesoffices located at 399 Thornall Street, First Floor, Edison, New JerseyNJ 08837. The proxy statement and 2017 annual report to stockholdersthe 2021 Annual Report on Form 10K10-K are available at www.pstvote.com/contravir2017. hepion2022.
THIS IS YOUR PROXY
YOUR VOTE IS IMPORTANT!
Dear Stockholder:
We cordially invite you to aendattend the Annual Meeting of Stockholders of ContraVir Pharmaceucals,Hepion Pharmaceuticals, Inc. to be held at ContraVir’s okcesthe Company’s offices located at 399 Thornall Street, First Floor, Edison, New Jersey,NJ 08837, on December 13, 2017,June 24, 2022, beginning at 9:00 a.m. local me. time.
Please read the proxy statement which describes the proposals and presents other important informaon,information, and complete, sign and return your proxy promptly in the enclosed envelope.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” EACH OF THE FOLLOWING“FOR” PROPOSALS 1. Elecon of seven directors 01. Gary S. Jacob 05. Arnold Lippa 02. James Sapirstein 06. Thomas Adams 03. John P. Brancaccio 07. Tamar Howson 04. Timothy Block FOR ALL NOMINIEES WITHHOLD AUTHORITY FOR ALL NOMINEES FOR ALL EXCEPT INSTRUCTION: To withhold authority to vote for any individual nominee(s), mark “FOR ALL EXCEPT” and, in the list above, strike a line through the name of the nominee for whom you wish to withhold your vote. 2. To rafy BDO USA, LLP as the Company’s independent registered public accounting firm for the fiscal year ending June 30, 2018. FOR AGAINST ABSTAIN 3. To approve an amendment to the Company’s 2013 Equity Incenve Plan (the “Plan”) to increase the number of shares of common stock authorized to be issued pursuant to the Plan from 7,700,000 to 10,700,000. FOR AGAINST ABSTAIN Date: Signature of Stockholder Date: Signature of Stockholder 1-5
| 1. Election of Directors Nominees | FOR | WITHHOLD |
| | |
| 01- Gary S. Jacob, Ph.D. | ¨ | ¨ |
| 02- Robert Foster, Ph.D. | ¨ | ¨ |
| 03- John P. Brancaccio | ¨ | ¨ |
| 04- Timothy Block, Ph.D. | ¨ | ¨ |
| 05- Arnold Lippa, Ph.D. | ¨ | ¨ |
| 06- Petrus “Peter” Wijngaard, Ph.D. | ¨ | ¨ |
| 2. Proposal to ratify BDO USA, LLP as the Company’s independent registered public accountants for fiscal year ending December 31, 2022. | | FOR
¨ | AGAINST
¨ | ABSTAIN
¨ |
| 3. Proposal to approve the Company’s 2022 Omnibus Equity Incentive Plan. | | FOR
¨ | AGAINST
¨ | ABSTAIN
¨ |
| 4. Proposal to approve the amendment of the Company’s certificate of incorporation, as amended, to increase the number of shares of authorized common stock from 120,000,000 to 200,000,000. | | FOR
¨ | AGAINST
¨ | ABSTAIN
¨ |
| 5. Proposal to approve, on an advisory basis, the compensation of the Company’s named executive officers. | | FOR
¨ | AGAINST
¨ | ABSTAIN
¨ |
Important: Please sign exactly as name appears on this proxy. When signing as aorney,attorney, executor, trustee, guardian, corporate okcer,officer, etc., please indicate full tletitle.
Important: Please sign exactly as name appears on this proxy. When signing as attorney, executor, trustee, guardian, corporate officer, etc., please indicate full title.
| Dated: | , 2022 |
| | |
| Signature | |
| | |
| Name (printed) | |
| | |
| Title | |
VOTING INSTRUCTIONS
You may vote your proxy in the following ways:
Login to www.pstvote.com/hepion2022
Enter your control number (12 digit number located below)
Philadelphia Stock Transfer, Inc.
2320 Haverford Rd., Suite 230
Ardmore, PA 19003
CONTROL NUMBER:
You may vote by Internet 24 hours a day, 7 days a week. Internet voting is available through 11:59 p.m.,
prevailing time, on June 23, 2022.