Optinose - 2022 Proxy Statement | 13
| | | | | | | | | Catherine E. OwenDirector since July 2020 | | Ms. Owen has served as a director of our company since July 2020. Ms. Owen is Senior Vice President, Major Markets at Bristol-Myers Squibb (BMS), overseeing commercial operations for the business in 18 countries including Japan, Germany, France, and others across Europe. Ms. Owen joined BMS in 2019 from Johnson & Johnson, where she served most recently as President of Janssen Immunology North America from 2018 to 2019, which launched new products in Crohn’s disease and psoriasis and led the development of J&J’s biosimilars strategy. Prior to leading Immunology, Ms. Owen was the President of the Infectious Diseases business in the US from 2016 to 2018, responsible for the HIV, RSV, Flu, and Hepatitis B pipeline. Prior to that Ms. Owen worked in various functions and businesses at J&J and led the launches of multiple products in both Europe and the US. Ms. Owen began her career in the pharmaceutical industry in 1992 at AstraZeneca in London as a production support pharmacist. Ms. Owen earned her Bachelor of Science degree in pharmacy from the University of Manchester and completed her registered pharmacy degree and was a member of the Royal Pharmaceutical Society, MRPhs. In 2019, in recognition of her efforts as a developer of talent, the Healthcare Businesswomen’s Association (HBA) named Ms. Owen an HBA Luminary. | Director since July 2020
| | | | | Key Attributes, Skills and Experience: Our Nominating and Corporate Governance Committee and our Board of Directors believe that Ms. Owen's extensive commercial operations experience in the pharmaceutical industry qualifies her to serve on our Board of Directors. | | | |
Optinose - 2023 Proxy Statement | 17
Arrangements Relating to Election or Nomination of Directors We committed to appoint two representatives from MVM Partners, LLP (MVM) to our Board of Directors based upon the level of MVM's participation in our underwritten public offering in November 2021. Drs. Bednarski and Dempsey are the two MVM representatives onwere initially appointed to our Board.Board pursuant to this commitment. Mr. Fletcher was nominated by M. Kingdon Offshore Master Fund L.P., Velan Capital Partners LP and certain other affiliated investors and was appointed to the Board in connection with a Cooperation Agreement entered into by the Company and such investors.
Other than the appointment of Drs. Bednarski and Dempsey and Mr. Fletcher pursuant to the foregoing commitments, there are no arrangements or understandings between a director and any other person pursuant to which such person was elected as director or is being nominated as a director.
No Family Relationships There are no family relationships between any of our executive officers and directors. Optinose - 20222023 Proxy Statement | 1418
STOCK OWNERSHIP
Stock Ownership of Directors, Officers and Principal Stockholders The following table sets forth information known to us concerning the beneficial ownership of our common stock as of April 21, 202218, 2023 (unless otherwise indicated by footnote below) for: •each of our named executive officers; •each of our directors; •all of our current directors and executive officers as a group; and •each person, or group of affiliated persons, known by us to own beneficially more than 5% of our common stock. Beneficial ownership is determined in accordance with the rules of the SEC as indicated in the footnotes to the table below. | | | | | | | | | | | | | | | Name of Beneficial Owner | | Common Stock Beneficially Owned (1) | | Percent of Class (2) | Executive Officers and Directors (17) : | | | | | Peter K. Miller (3) | | 1,905,781 | | | 2.3% | Ramy A. Mahmoud, M.D., M.P.H.(4) | | 958,564 | | | 1.1% | Victor M. Clavelli(5) | | 147,547 | | | * | Keith A. Goldan (6) | | 383,810 | | | * | Michael F. Marino(7) | | 391,630 | | | * | Joseph C. Scodari(8) | | 117,865 | | | * | Wilhelmus Groenhuysen(9) | | 86,635 | | | * | Sandra L. Helton(9) | | 86,635 | | | * | Tomas J. Heyman(10) | | 28,879 | | | * | Catherine E. Owen(11) | | 16,044 | | | * | Eric Bednarski | | — | | | * | Kyle Dempsey | | — | | | * | R. John Fletcher | | — | | | * | All executive officers and directors as a group (13 persons)(12) | | 4,123,390 | | | 4.8% | | | | | | Greater Than 5% Stockholders: | | | | | Avista Capital Partners (13) | | 14,273,017 | | | 17.3% | MVM Partners (14) | | 12,500,000 | | | 15.1% | Entities affiliated with FMR LLC (15) | | 11,962,565 | | | 14.5% | Theodore H. Kruttschnitt, III (16) | | 4,166,176 | | | 5.0% |
| | | | | | | | | | | | | | | Name of Beneficial Owner | | Common Stock Beneficially Owned (1) | | Percent of Class (2) | Named Executive Officers and Directors (20) : | | | | | Peter K. Miller (3) | | 2,443,780 | | | 2.2% | Ramy A. Mahmoud, M.D., M.P.H.(4) | | 1,223,294 | | | 1.1% | Michael F. Marino (5) | | 601,812 | | | * | Joseph C. Scodari (6) | | 164,304 | | | * | Wilhelmus Groenhuysen (7) | | 118,635 | | | * | Sandra L. Helton (8) | | 118,365 | | | * | Tomas Heyman (9) | | 70,505 | | | * | Catherine Owen (10) | | 41,714 | | | * | Eric Bednarski (11) | | 46,440 | | | * | Kyle Dempsey (12) | | 46,440 | | | * | R. John Fletcher (13) | | 23,111 | | | * | All Current Executive Officers and Directors as a Group (12 persons) (14) | | 2,454,620 | | | 2.2% | | | | | | Greater Than 5% Stockholders: | | | | | Entities affiliated with FMR LLC (15) | | 14,661,110 | | | 13.1% | MVM Partners (16) | | 16,710,526 | | | 14.7% | Great Point Partners (17) | | 11,314,719 | | | 9.99% | Theodore H. Kruttschnitt, III (18) | | 8,631,578 | | | 7.50% | Acorn Bioventures (19) | | 11,368,958 | | | 9.99% |
_______________ * Represents less than 1% of the outstanding shares of the Company's common stock. (1)Beneficial ownership is determined in accordance with Rule 13d-3 under the Securities Exchange Act of 1934 (Exchange Act)(the "Exchange Act"). A person or group is deemed to be the beneficial owner of any shares of our common stock over which such person or group has sole or shared voting or investment power, plus any shares which such person or group has the right to acquire beneficial ownership of within 60 days of April 21, 2022,18, 2023, whether through the exercise of warrants or options, vesting of restricted stock units or otherwise. Unless otherwise indicated in the footnotes, to our knowledge, each person or entity identified in the table has sole voting and investment power with respect to all shares shown as beneficially owned by them, subject to applicable community property laws. (2)The beneficial ownership percentage is calculated for each person or group separately because shares of our common stock subject to warrants, options, restricted stock units or other rights to acquire our common stock that are currently exercisable or exercisable within 60 days of April 21, 202218, 2023 are considered outstanding only for the purpose of calculating the percentage ownership of the person or group holding such warrants, options, restricted stock units or other rights but not for the purpose of calculating the percentage ownership of any other person or group. As a result, the beneficial ownership percentage for each person or group is calculated by dividing (x) the number of shares reported in the table as beneficially owned by such person or group, by (y) 82,681,048111,955,893 shares (which represents the number of Optinose - 2022 Proxy Statement | 15
shares of common stock that were outstanding as of April 21, 2022)18, 2023) plus the number of shares that Optinose - 2023 Proxy Statement | 19
such person or group has the right to acquire beneficial ownership of within 60 days of April 21, 202218, 2023 as indicated in the footnotes below. (3)Consists of (i) 451,160638,059 shares of common stock, (ii) options to purchase 1,329,5841,656,365 shares of common stock exercisable within 60 days of April 21, 2022,18, 2023, (iii) 20,62444,943 restricted stock units that vest within 60 days of April 21, 2022, and18, 2023, (iv) 104,413 shares of common stock stock held by the Deed of Trust of Peter K. Miller, dated October 13, 2014. (4)Consists of (i) 85,934167,553 shares of common stock, (ii) options to purchase 448,756622,054 shares of common stock exercisable within 60 days of April 21, 2022,18, 2023, (iii) 9,37519,188 restricted stock units that vest within 60 days of April 21, 2022,18, 2023, (iv) 172,421 shares of common stock held by The Ramy Mahmoud 2014 Trust for Cynthia Mahmoud, and (v) options held by The Ramy Mahmoud 2014 Trust for Cynthia Mahmoud to purchase 242,078 shares of common stock exercisable within 60 days of April 21, 2022.18, 2023. (5)Consists of (i) 62,963107,888 shares of common stock, (ii) options to purchase 77,500481,318 shares of common stock exercisable within 60 days of April 21, 2022,18, 2023, and (iii) 7,08412,606 restricted stock units that vest within 60 days of April 21, 2022.18, 2023. (6)Consists of (i) 29,713 shares of common stock, (ii) options to purchase 348,853 shares of common stock exercisable within 60 days of April 21, 2022, and (iii) 5,244 restricted stock units that vest within 60 days of April 21, 2022. (7)Consists of (i) 37,532 shares of common stock, (ii) options to purchase 348,854 shares of common stock exercisable within 60 days of April 21, 2022, and (iii) 5,244 restricted stock units that vest within 60 days of April 21, 2022.
(8)Consists of (i) 31,230 shares of common stock, and (ii) options to purchase 86,635133,074 shares of common stock exercisable within 60 days of April 21, 2022.18, 2023.
(9)(7)Consists of options to purchase 86,635118,635 shares of common stock exercisable within 60 days of April 21, 2022.18, 2023.
(10)(8)Consists of options to purchase 28,879118,635 shares of common stock exercisable within 60 days of April 21, 2022.18, 2023.
(11)(9)Consists of options to purchase 16,04470,505 shares of common stock exercisable within 60 days of April 21, 2022.18, 2023.
(12)(10)Consists of (i) 975,366options to purchase 41,714 shares of common stock (ii) 3,100,453 shares of common stock subject to options that are exercisable within 60 days of April 21, 2022,18, 2023.
(11)Consists of options to purchase 46,440 shares of common stock exercisable within 60 days of April 18, 2023. (12)Consists of options to purchase 46,440 shares of common stock exercisable within 60 days of April 18, 2023. (13)Consists of options to purchase 23,111 shares of common stock exercisable within 60 days of April 18, 2023. (14)Includes current executives (Ramy A. Mahmoud, Chief Executive Officer; Michael F. Marino, Chief Legal Officer; Anthony J. Krick, Chief Accounting Officer; Paul Spence, Chief Commercial Officer) and current members of the Board of Directors (Joseph Scodari, Wilhelmus Groenhuysen, Sandra Helton, Catherine Owen, Tomas Heyman, Eric Bednarski, Kyle Dempsey and R. John Fletcher). Consists of (i) 479,092 shares of common stock, (ii) options to purchase 1,960,827 shares of common stock exercisable within 60 days of April 18, 2023, and (iii) 47,57131,794 restricted stock units that will vest within 60 days of April 21, 2022. (13)Based on Amendment No. 3 to the Schedule 13-G filed by Avista Capital Partners II GP, LLC on February 8, 2022. Consists of (i) 10,136,374 shares of common stock held by Avista Capital Partners II, L.P., (ii) 3,328,648 shares of common stock held by Avista Capital Partners (Offshore) II, L.P., and (iii) 807,995 shares of common stock held by Avista Capital Partners (Offshore) II-A, L.P. Avista Capital Partners II GP, LLC serves as the general partner of Avista Capital Partners II, L.P., Avista Capital Partners (Offshore) II, L.P. and Avista Capital Partners (Offshore) II-A, L.P. By virtue of these relationships, Avista Capital Partners II GP, LLC may be deemed to share beneficial ownership of the 10,136,374 shares of Common Stock held by Avista Capital Partners II, L.P., the 3,328,648 shares of Common Stock held by Avista Capital Partners (Offshore) II, L.P., and the 807,995 shares of Common Stock held by Avista Capital Partners (Offshore) II-A, L.P. Voting and disposition decisions at Avista Capital Partners II GP, LLC with respect to those shares are made by an investment committee. Each of the members of the investment committee disclaims beneficial ownership of these securities. The address for each of these individuals and entities is c/o Avista Capital Partners, 65 East 55th Street, 18th Floor, New York, NY 10022.
(14)Based on the Schedule 13D filed by MVM Partners LLP on December 27, 2021. Consists of (i) 12,247,476 shares of common stock held by MVM V LP, and (ii) 252,524 shares of common stock held by MVM GP (No. 5) LP. MVM Partners LLP provides investment advisory services to MVM V LP and MVM GP (No. 5) LP, and in such capacity MVM Partners LLP has voting and dispositive power over such shares. Investment decisions for MVM V LP and MVM GP (No. 5) LP are made by an investment committee. The address for each of these entities is 30 St. George Street, London, United Kingdom W1S SFH.18, 2023.
(15)Based on Amendment No. 56 to the Schedule 13-G filed by FMR LLC on February 9, 2022.2023. Shares are held by accounts managed by direct or indirect subsidiaries of FMR LLC. Abigail P. Johnson is a Director, the Chairman and the Chief Executive Officer of FMR LLC. Members of the Johnson family, including Abigail P. Johnson, are the predominant owners, directly or through trusts, of Series B voting common shares of FMR LLC, representing 49% of the voting power of FMR LLC. The Johnson family group and all other Series B shareholders have entered into a shareholders' voting agreement under which all Series B voting common shares will be voted in accordance with the majority vote of Series B voting common shares. Accordingly, through their ownership of voting common shares and the execution of the shareholders' voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940, to form a controlling group with respect to FMR LLC. Neither FMR LLC nor Abigail P. Johnson has the sole power to vote or direct the voting of the shares owned directly by the various investment companies registered under the Investment Company Act ("Fidelity Funds") advised by Fidelity Management & Research Company LLC ("FMR Co. LLC"), a wholly owned subsidiary of FMR LLC, which power resides with the Fidelity Funds' Boards of Trustees. FMR Co. LLC carries out the voting of the shares under written guidelines established by the Fidelity Funds' Boards of Trustees. The address for FMR LLC is 245 Summer Street, Boston, MA 02210. (16)Based on Amendment No. 1 to the Schedule 13D filed by MVM Partners LLC on November 22, 2022, and Amendment No. 2 to the Schedule 13D filed by MVM Partners LLC on February 14, 2023. Consists of (i) 16,372,940 shares of common stock (and warrants to purchase shares of common stock) held by MVM V LP, and (ii) 337,586 shares of common stock (and warrants to purchase shares of common stock) held by MVM GP (No. 5) LP. The aggregate amount includes warrants to purchase an aggregate of 2,105,563 shares of common stock. MVM Partners LLC provides investment advisory services to MVM V LP and MVM GP (No. 5) LP, and in such capacity MVM Partners LLP has voting and dispositive power over such shares. Investment decisions for MVM V LP and MVM GP (No. 5) LP are made by an investment committee. The address for each of these entities is Old City Hall, 45 School St., Boston, MA 02108.
(17)Based on the Schedule 13G filed by Great Point Partners, LLC on December 1, 2022, and Amendment No. 1. to the Schedule 13G/A filed by Great Point Partners, LLC on February 13, 2023. Consists of (i) 4,499,999 shares of common stock held by Biomedical Value Fund, L.P., (ii) 3,000,000 shares of common stock held by Biomedical Offshore Value Fund, Ltd., and (iii) 394,737 shares of common stock held by Cheyne Global Equity Fund. In addition to an aggregate of 7,894,736 shares of common stock in the aggregate held outright, the reporting persons hold in the aggregate warrants to purchase 7,894,736 shares of common stock; however, the provisions of such warrants restrict the exercise of such warrants to the extent that, after giving effect to such exercise, the holder of the warrants and its affiliates, together with any other person or entities with which such holder would constitute a group, would beneficially own in excess of 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to such exercise. As a result, as of December 31, 2022, an aggregate of 3,419,983 shares underlying such warrants were beneficially owned by the reporting Optinose - 2023 Proxy Statement | 20
persons based on a total of 109,840,471 shares outstanding, as reported by us in a prospectus supplement filed with the SEC on November 23, 2022 and 3,419,983 shares of common stock issuable upon exercise of warrants held by the reporting persons (subject to the Beneficial Ownership Cap). Dr. Jeffrey R. Jay, M.D. is a senior managing member of Great Point Partners, LLC, and Mr. Ortav Yehudai is a Managing Director of Great Point Partners, LLC. Dr. Jay and Mr. Yehudai have voting and investment power with respect to the shares listed above, and therefor may be deemed to be the beneficial owner of these shares. The address for each of these individuals and entities is 165 Mason Street, 3rd Floor Greenwich, CT 06830. (18)Based on Amendment No. 1 to Schedule 13G filed by Theodore H. Kruttschnitt, III on April 13, 2022.January 19, 2023. Represents (i) 6,815,789 shares of common stock, and (ii) 1,815,789 warrants to purchase shares of common stock. The address of the principal business office of Theodore H. Kruttschnitt, III, is 3000 Ralston Avenue, Hillsborough, CA 94010. Optinose -(19)Based on the 13G filed by Acorn Bioventures, L.P. on December 5, 2022. Consists of shares of common stock and warrants to purchase common stock held by Acorn Bioventures, L.P., Acorn Capital Advisors GP, LLC (“Acorn”), Acorn Capital Advisors HP, LLC (“Acorn GP”), which is the sole general partner of Acorn, Acorn Bioventures 2, L.P. (“Acorn 2”), Acorn Capital Advisors GP 2, LLC (“Acorn GP 2”), which is the sole general partner of Acorn 2, and Anders Hove. Aggregate amount includes 4,997,495 shares of common stock issuable upon exercise of warrants. However, the exercise of the warrants is subject to a 9.99% beneficial ownership blocker. The percentage ownership gives effect to the blocker based upon 109,840,471 shares of common stock outstanding as of November 23, 2022 Proxy Statement | 16
Tableas reported in the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 23, 2022, and assumes the exercise of Contentsthe reported warrants subject to the blocker where applicable. Acorn Capital Advisors GP, LLC is the sole general partner of Acorn Bioventures, L.P., and may be deemed to beneficially own the shares of common stock beneficially owned by Acorn Bioventures, L.P. Acorn Capital Advisors GP 2, LLC is the sole general partner of Acorn Bioventures 2, L.P., and may be deemed to beneficially own the shares of common stock beneficially owned by Acorn Bioventures, 2 L.P. Anders Hove is the Manager of Acorn Capital Advisors GP, LLC and Acorn Capital Advisors GP2, LLC, and may be deemed to beneficially own the shares beneficially owned by those entities, The address for each of these individuals and entities is 420 Lexington Ave, Suite 2626 New York, New York 10170.(17)(20)The address for each of our executive officers and directors is c/o Optinose, OptiNose, 1020 Stony Hill Road, Suite 300, Yardley, Pennsylvania 19067.19067.
CORPORATE GOVERNANCE AND BOARD MATTERS
Our Board of Directors has determined that each director during the last fiscal year and each of our current directors with the exception of Mr. Miller, is an "independent" director within the meaning of applicable rules and regulations of the Nasdaq Stock Market LLC (Nasdaq) and the SEC. SEC, with the exception of Mr. Miller who resigned as Chief Executive Officer and member of our Board in January 2023, and Dr. Mahmoud, who was appointed Chief Executive Officer and member of our Board in January 2023.
In making its independence determinations, our Board of Directors considers the relationship that each of our directors and director nominees has with our Company and all other facts and circumstances that the Board of Directors deems relevant. In connection with its assessment, our Board of Directors considered (i) each director's beneficial ownership of our common stock reported in the "Stock Ownership" section of this Proxy Statement, and (ii)Statement. In addition, with respect to Drs. Bednarski and Dempsey, who were appointedour Board considered their initial appointment to our Board of Directors in December 2021 pursuant to our commitment to appoint two representatives of MVM Partners LLP (MVM) to our Board as reported in "Directors - Arrangements Relating to Election or Nomination of Directors", their positions as partners of MVM and the surrender of their compensation for service on our Board of Directors to MVM.MVM, and with respect to Mr. Fletcher, our Board considered his appointment to our Board as reported in "Directors - Arrangements Relating to Election or Nomination of Directors" . Based on its assessment, our Board of Directors concluded that none of our directors, other than Mr. Miller,Dr. Mahmoud, has a relationship that would interfere with his/her exercise of independent judgment in carrying out the responsibilities of a director. Our Board of Directors has also determined that each member of our Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee meets the independence requirements applicable to those committees as prescribed by applicable rules and regulations of Nasdaq and the SEC.
We are a party to a Stockholders' Agreement with Avista Capital that provides, among other things, that Avista Capital has the right to designate for nomination by our Board of Directors upon the recommendation of our Nominating and Corporate Governance Committee:
•three directors to our Board of Directors for so long as Avista Capital owns 27.5% or more of our then-outstanding shares of common stock; provided, however, that one such director must not be an employee or partner of Avista Capital, must qualify as an independent director under the Nasdaq listing rules and must be reasonably acceptable to our Board of Directors;
•two directors to our Board of Directors for so long as Avista Capital owns less than 27.5% but 17.5% or more of our then-outstanding shares of common stock; and
•one director to our Board of Directors for so long as Avista Capital owns less than 17.5% but 7.5% or more of our then-outstanding shares of common stock.
We are required to take all necessary action to ensure the composition of our Board of Directors as set forth above. Pursuant to the terms of the Stockholders' Agreement, at least a majority of the members of each of our standing committees must be composed of non-Avista Capital nominees.
There are currently no Avista Capital nominees serving on our Board of Directors. To our knowledge, Avista Capital beneficially owned 17.30% of our shares of common stock as of April 1, 2022.
Board Leadership Structure and Role in Risk Oversight Optinose - 20222023 Proxy Statement | 1721
Our Board's Leadership Structure Our Board of Directors is currently chaired by Mr. Scodari. As previously announced, Mr. Scodari will be retiring from the Board following the Annual Meeting and Mr. Fletcher will be appointed Chairman of the Board (subject to his re-election at the Annual Meeting). At this time, our Board of Directors believes that separation of the positions of chairman and chief executive officer reinforces the independence of our Board of Directors from management, creates an environment that encourages objective oversight of management's performance and enhances the effectiveness of our Board of Directors as a whole. Role of the Board in Risk Oversight One of the key functions of our Board of Directors is informed oversight of our risk management process. Our Board of Directors does not have a standing risk management committee, but rather administers this oversight function directly through our Board of Directors as a whole, as well as through the three standing committees of our Board of Directors that address risks inherent in their respective areas of oversight. For example: •Our Audit Committee oversees management of financial reporting and financial risk exposures, compliance and litigation risks, that could have a significant impact on our financial results, including risks related to securities, accounting and tax matters, as well as the steps management has taken to monitor and control such exposures. exposures and risks. •Our Compensation Committee is responsible for overseeing the management of risks relating to our executive compensation policies, plans and arrangements and the extent to which those policies or practices increase or decrease risks for our company. •Our Nominating and Corporate Governance Committee manages risks associated with the independence of our Board of Directors, potential conflicts of interest and the effectiveness of our Board of Directors.
Our Board of Directors held ninetwenty-one (21) meetings during 2021.2022. Each director attended at least 75% of the total number of meetings of the Board of Directors and committee meetings of which such director was a member during 2021.2022. All directors are encouraged, but not required, to attend the annual meeting of stockholders. All six (6)nine (9) of our then-serving directors attended our 20212022 Annual Meeting of Stockholders. Optinose - 20222023 Proxy Statement | 1822
Our Board of Directors has three standing committees: an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee. Each of these committees operates pursuant to a written charter that has been approved by our Board of Directors. These charters are available on the "Investors — Corporate Governance" section of our website at www.optinose.com. Each committee annually reviews and assesses its charter. From time to time, our Board of Directors may also appoint ad hoc committees for specific matters. Below is a summary of our committee structure and membership information.information as of April 18, 2023. | | | | | | | | | | | | | | | | | Current Committee Membership | Board Member | Independent Director | Audit | Compensation | Nominating and Corporate Governance | | | | | | Joseph C. Scodari*Scodari (1) | « | « | « | « | Chairman of the Board | | | | Chair | | | | | | Eric Bednarski (2) | « | | | « | | | | | | Kyle Dempsey | « | | « | | | | | | | Wilhelmus Groenhuysen*R. John Fletcher (2) | « | « | | | | | | | | Wilhelmus Groenhuysen | « | « | | | | | | | | Sandra L. Helton*Helton | « | « | | | | | Chair | | | Tomas J. Heyman | « | | | « | | | | | | Catherine E. Owen(2) | « | | « | | | | | Chair | |
_____________(1) Mr. Scodari will be retiring from our Board of Directors immediately following the Annual Meeting.
*(2) Director nominee for re-election to our Board of Directors at the Annual Meeting.
Audit Committee Our Audit Committee consists of Ms. Helton and Messrs. Groenhuysen and Scodari,Fletcher, and is chaired by Ms. Helton. The primary purpose of our Audit Committee is to assist our Board of Directors by providing oversight of our financial management, independent auditor and financial reporting procedures, as well as such other matters as directed by our Board of Directors. Our Audit Committee is responsible for, among other things: •appointing, retaining, compensating, overseeing, evaluating, and, when appropriate, terminating our independent registered public accounting firm; •approving in advance all audit services and non-audit services to be provided to us by our independent registered public accounting firm; •discussing with management and our independent registered public accounting firm our annual and quarterly consolidated financial statements and related disclosures; •reviewing with management its assessment of our internal control over financial reporting and disclosure controls and procedures; •overseeing our financial risk assessment and general risk management processes; Optinose - 2023 Proxy Statement | 23
•reviewing and monitoring, as appropriate, litigation, inquiries from regulatory or governmental agencies or other legal matters that could have a significant impact on the Company's financial results, and significant findings of any examination by regulatory authorities or agencies, in the areas of securities, accounting or tax, such as the SEC or the Internal Revenue Service; Optinose - 2022 Proxy Statement | 19
•receiving periodic reports from the Company's Chief Legal Officer and Chief Compliance Officer regarding the Company's activities in the area of corporate compliance and the instances of non-compliance with legal or regulatory requirements that may have a material impact on the Company's financial results, business operations or public image; •establishing procedures for the receipt, retention and treatment of complaints received by us regarding accounting, internal accounting controls, auditing or compliance matters, as well as for the confidential, anonymous submission by our employees of concerns regarding questionable accounting or auditing matters, or misconduct allegations that relate to the CEO, senior executives (C-Suite) or finance executives; •reviewing and ratifying major tax planning activities; •reviewing management's proposed annual budget;assisting the Board of Directors in performing its oversight of the Company's cybersecurity program, its effectiveness, and any breaches or other cybersecurity events; •reviewing and ratifying related party transactions, based on the standards set forth in our related party transactions policy; and •preparing and approving the Audit Committee report required to be included in our annual proxy statement. Our Board of Directors has determined that each member of the Audit Committee satisfies the financial literacy and sophistication requirements of the SEC and applicable Nasdaq listing rules. In addition, our Board of Directors has determined that each of Ms. Helton and Mr. Groenhuysen qualifies as an "audit committee financial expert," as defined in Item 407(d)(5) of Regulation S-K promulgated under the Securities Act of 1933, as amended (Securities Act). Our Audit Committee met fivefour (4) times during 2021.2022. Both our independent registered public accounting firm and management periodically meet privately with our Audit Committee. Compensation Committee Our Compensation Committee consists of Ms. Owen, Dr. Dempsey and Messrs. Groenhuysen andMr. Scodari, and is chaired by Ms. Owen. Following the Annual Meeting, our Compensation Committee will consist of Mr. Heyman, Dr. Dempsey and Mr. Fletcher (subject to his re-election at the Annual Meeting), and will be chaired by Mr. Heyman. The primary purpose of our Compensation Committee is to review the performance and development of our management in achieving corporate goals and objectives and assure that our executive officers, including our chief executive officer (CEO), are compensated effectively and in a manner consistent with our strategy, competitive practice and stockholder interests, as well as such other matters as directed by our Board of Directors. Our Compensation Committee is responsible for, among other things: •annually reviewing and recommending to our Board of Directors for approval the corporate goals and objectives applicable to the compensation of our CEO and other executive officers and evaluating at least annually our CEO's and other executive officers' performance in light of those goals and objectives; •determining and approving compensation levels, including salary, cash, equity-based incentive awards and any personal benefits, of our executive officers other than our CEO; •reviewing our CEO's compensation, including salary, cash, equity-based incentive awards and any personal benefits, and making recommendations to our Board of Directors; •reviewing and making changes to pre-approved salary ranges, salary increases, equity awards, incentive payments and pre-approved equity ranges for new hires, and making material changes to benefits offered to our employees; •administering, or where appropriate, overseeing the administration of, executive and equity compensation plans and such other compensation and benefit plans that are adopted by us from time to time, including the determination whether to approve smaller increases in the number of shares reserved under our Amended and Restated 2010 Stock Incentive Plan and 2017 Employee Stock Purchase Plan than those that automatically occur each year pursuant to the "evergreen" provisions of such plans; •establishing policies and making recommendations to our Board of Directors regarding director compensation; and •overseeing risks and exposures associated with compensation plans and arrangements. Optinose - 2023 Proxy Statement | 24
The agenda for each meeting of the Compensation Committee is usually developed by the chair of the Compensation Committee in consultation with our Chief Executive Officer, Chief Human Resources Officer and Chief Legal Officer. The Compensation Committee meets regularly in executive session. From time to time, various members of management and other employees as well as outside advisors or consultants may be invited by the Compensation Committee to make presentations, to provide financial or other background information or advice or to otherwise participate in Compensation Committee meetings. No officer participates in, or is present during, any deliberations or determinations of the Compensation Committee regarding Optinose - 2022 Proxy Statement | 20
the specific compensation for such officer or employee. Our CEO provides recommendations to our Compensation Committee with respect to executive and employee compensation, other than his own compensation. The Compensation Committee takes into consideration our CEO's input in granting annual bonuses or equity awards and setting compensation levels. The charter of the Compensation Committee grants the Compensation Committee full access to all of our books, records, facilities and personnel, as well as authority to obtain, at our expense, advice and assistance from internal and external legal, accounting or other advisors and consultants and other external resources that the Compensation Committee considers necessary or appropriate in the performance of its duties. In particular, the Compensation Committee has the authority to retain compensation consultants to assist in its evaluation of executive and director compensation, including the authority to approve the consultant's reasonable fees and other retention terms. The Compensation Committee again engaged Pearl Meyer & Partners, LLC, (Pearl Meyer) an independent compensation consultant, during 2021 to provide comparative data on executive, non-executive and non-employee director compensation practices in our industry and to advise the Compensation Committee on our executive, non-executive and non-employee director compensation, equity and benefit programs generally.generally during 2022. The Compensation Committee retains the sole authority to direct, terminate or engage Pearl Meyer services. Other than the services for which Pearl Meyer was engaged by the Compensation Committee, Pearl Meyer did not provide any other services to the Company or its affiliates during 2021.2022. The Compensation Committee may form and delegate any or all of its duties or responsibilities to a subcommittee of the Compensation Committee, to the extent consistent with our Certificate of Incorporation, Bylaws, Nasdaq listing rules and applicable laws. Our Compensation Committee met seventen (10) times during 2021.2022. Nominating and Corporate Governance Committee Our Nominating and Corporate Governance Committee consists of Messrs. Scodari, Bednarski and Heyman, and is chaired by Mr. Scodari. Following the Annual Meeting, our Nominating and Corporate Governance Committee will consist of Messrs. Fletcher (subject to his re-election at the Annual Meeting), Bednarski (subject to his re-election at the Annual Meeting) and Heyman, and will be chaired by Mr. Fletcher. Our Nominating and Corporate Governance Committee is responsible for, among other things: •assessing the need for new directors and developing and submitting to our Board of Directors for its adoption a list of selection criteria for new directors to serve on our Board of Directors; •identifying, reviewing and evaluating candidates, including candidates submitted by stockholders, for election to our Board of Directors and recommending to our Board of Directors (i) nominees to fill vacancies or new positions on our Board of Directors and (ii) the slate of nominees to stand for election by our stockholders at each annual meeting of stockholders; •developing, recommending, overseeing the implementation of and monitoring compliance with, our corporate governance guidelines, and periodically reviewing and recommending any necessary or appropriate changes to our corporate governance guidelines; •annually recommending to our Board of Directors (i) the assignment of directors to serve on each committee; (ii) the chairperson of each committee and (iii) the chairperson of our Board of Directors or lead independent director, as appropriate; •reviewing the adequacy of our Certificate of Incorporation and Bylaws and recommending to our Board of Directors, as conditions dictate, amendments for consideration by the stockholders; •reviewing our Code of Business Conduct and Ethics and recommending any changes to our Board of Directors; and •implementing policies with respect to risk oversight, assessment and management of risk associated with the independence of our Board of Directors, potential conflicts of interest and the effectiveness of our Board of Directors. Our Nominating and Corporate Governance Committee met twothree (3) times during 2021. 2022.
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Nomination of Director Candidates
We receive suggestions for potential director nominees from many sources, including members of our Board of Directors, advisors and stockholders. Any suggested director candidate, together with appropriate biographical information, should be submitted to the Chairman of our Nominating and Corporate Governance Committee in the manner discussed below. Any candidates submitted by a stockholder or stockholder group are reviewed and considered in the same manner as all other candidates. Qualifications for consideration as a director nominee may vary according to the particular areas of expertise being sought as a complement to the existing composition of our Board of Directors. However, minimum qualifications include high level leadership experience in business activities, breadth of knowledge about issues affecting our Company, experience on other boards of directors preferably public company boards, and time available for meetings and consultation on Company matters. Our Nominating and Corporate Governance Committee does not have a formal policy with regard to the consideration of diversity in identifying director candidates, but seeks a diverse group of candidates who possess the background, skills and expertise to make a significant contribution to our Board of Directors and to our Company. Candidates whose evaluations are favorable are recommended by our Nominating and Corporate Governance Committee to the full Board of Directors for consideration. The full Board of Directors selects and recommends candidates for nomination as directors for stockholders to consider and vote upon at our annual meeting of stockholders. A stockholder wishing to nominate a person for election to our Board of Directors at any annual meeting at which the Board of Directors has determined that one or more directors will be elected must submit a written notice of his or her nomination of a candidate to the Chairman of our Nominating and Corporate Governance Committee (c/o the Corporate Secretary at OptiNose, Inc., 1020 Stony Hill Road, Suite 300, Yardley, Pennsylvania 19067), providing: •all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in an election contest (even if an election contest is not involved) pursuant to the Exchange Act and the rules and regulations promulgated thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); •a description of all direct and indirect compensation and other material agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such stockholder or beneficial owner or stockholder associated person, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant; •a completed and signed questionnaire regarding the background and qualifications of such person to serve as a director, a copy of which may be obtained upon request to our Corporate Secretary; •all information with respect to such person that would be required to be set forth in a stockholder’s notice pursuant to our Bylaws if such person were a stockholder or beneficial owner, on whose behalf the nomination was made, submitting a notice providing for the nomination of a person or persons for election as a director or directors in accordance with our Bylaws; and •such additional information that we may reasonably request to determine the eligibility or qualifications of such person to serve as a director or an independent director of our Company, or that could be material to a reasonable stockholder’s understanding of the qualifications and/or independence, or lack thereof, of such nominee as a director. Pursuant to our Bylaws, the submission must be received at our principal executive offices not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that there was no annual meeting in the prior year or the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day Optinose - 2023 Proxy Statement | 26
prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Company). Optinose - 2022 Proxy Statement | 22
Stockholder Communications with Directors
Persons wishing to write to our Board of Directors, or to a specified director or committee of our Board of Directors, should send correspondence to our Corporate Secretary at OptiNose, Inc., 1020 Stony Hill Road, Suite 300, Yardley, Pennsylvania 19067. Electronic submissions of stockholder correspondence will not be accepted. Our Corporate Secretary will forward to the directors all communications that, in his judgment, are appropriate for consideration by the directors. Examples of communications that would not be appropriate for consideration by the directors include commercial solicitations and matters not relevant to the stockholders, to the functioning of the Board of Directors or to the affairs of our Company. Any correspondence received that is addressed generically to the Board of Directors will be forwarded to the Chairman of the Board of Directors.
| Board Diversity Matrix (as of April 26, 2022) | | Board Diversity Matrix (as of May 1, 2023) | | Board Diversity Matrix (as of May 1, 2023) | Board Size: | Total Number of Directors | Total Number of Directors | 9 | Total Number of Directors | 9 | | Female | Male | Non-Binary | Did not Disclose Gender | | Gender: | Gender: | Gender: | Female | Male | Non-Binary | Did not Disclose Gender | Directors | Directors | 2 | 7 | — | — | Directors | 2 | 6 | — | 1 | Number of Directors who Identify in Any of the Categories Below: | African American or Black | African American or Black | — | — | African American or Black | — | Alaskan Native or Native American | Alaskan Native or Native American | — | — | Alaskan Native or Native American | — | Asian (other than South Asian) | Asian (other than South Asian) | — | — | Asian (other than South Asian) | — | South Asian | South Asian | — | — | South Asian | — | Hispanic or Latinx | Hispanic or Latinx | — | — | Hispanic or Latinx | — | Native Hawaiian or Pacific Islander | Native Hawaiian or Pacific Islander | — | — | Native Hawaiian or Pacific Islander | — | White | White | 2 | 7 | — | — | White | 2 | 6 | — | Two or More Races or Ethnicities | Two or More Races or Ethnicities | — | — | — | Two or More Races or Ethnicities | — | 1 | — | LGBTQ+ | LGBTQ+ | — | LGBTQ+ | — | Persons with Disabilities | Persons with Disabilities | — | Persons with Disabilities | — | Did Not Disclose Demographic Background | Did Not Disclose Demographic Background | — | Did Not Disclose Demographic Background | — |
Compensation Committee Interlocks and Insider Participation
No member of our Compensation Committee has ever been an executive officer or employee of ours. None of our officers currently serves, or has served during the last completed fiscal year, on any other entity's board of directors, compensation committee or other committee serving an equivalent function that has one or more officers serving as a member of our Board of Directors or Compensation Committee.
Optinose - 2022 Proxy Statement | 23
Code of Business Conduct and Ethics
Optinose - 2023 Proxy Statement | 27
We have adopted a written Code of Business Conduct and Ethics (the Code of Conduct) applicable to all of our employees, executive officers and directors. The Code of Conduct covers fundamental ethical and compliance-related principles and practices such as accurate accounting records and financial reporting, avoiding conflicts of interest, the protection and use of our property and information and compliance with legal and regulatory requirements. Our Code of Conduct is available on the "Investors —Corporate Governance" section of our website at www.optinose.com. Our Nominating and Corporate Governance Committee is responsible for overseeing our Code of Conduct and must approve any waivers of the Code of Conduct for employees, executive officers or directors. We intend to disclose any future amendments to, or waivers from, our Code of Conduct within four business days of the waiver or amendment through a posting on our website.
Corporate Governance Guidelines
We have adopted Corporate Governance Guidelines that are designed to help ensure effective corporate governance of our Company. Our Corporate Governance Guidelines cover topics including, but not limited to, director qualification criteria, director responsibilities, director compensation, director orientation and continuing education, succession planning and the annual evaluations of our Board of Directors and its committees. Our Corporate Governance Guidelines are reviewed at least annually by our Nominating and Corporate Governance Committee and amended by our Board of Directors when appropriate. The full text of our Corporate Governance Guidelines is available on the "Investors —Corporate Governance" section of our website at www.optinose.com.www.optinose.com.
Hedging and Pledging Prohibition
Under our Insider Trading Policy, our directors, officers and employees (and such individuals’ family members, other members of their household and any person or entity whose transactions in our securities are subject to such individuals’ control or influence) are strictly prohibited from engaging the following transactions at any time: (i) trading in call or put options involving our securities and other derivative securities; (ii) engaging in short sales of our securities; (iii) holding our securities in a margin account or pledge our securities to secure margin or other loans; and (iv) all forms of hedging or monetization transactions, such as zero-cost collars and forward sale contracts.
The Audit Committee assists our Board of Directors in overseeing and monitoring the Company’s accounting, financial reporting and internal audit processes and the external audit of the Company’s financial statements. The Audit Committee operates pursuant to a written charter that is available on the "Investors - Corporate Governance" section of our website at www.optinose.com. Our management is responsible for preparing our consolidated financial statements and ensuring they are complete and accurate and prepared in accordance with generally accepted accounting principles. Ernst & Young LLP (EY), our independent registered public accounting firm for 2021,2022, was responsible for performing an independent audit of our consolidated financial statements and expressing an opinion on the conformity of those financial statements with generally accepted accounting principles. The Audit Committee is responsible for assisting our Board of Directors in overseeing the conduct of these activities by management and the independent auditor. In addition, the Audit Committee is responsible for approving the annual appointment of the independent auditor, as well as the fees paid in connection with the independent audit of our consolidated financial statements. In fulfilling its oversight responsibilities with respect to our audited consolidated financial statements for the year ended December 31, 2021,2022, the Audit Committee took the following actions: •evaluated the performance of the independent auditor for the independent audit of the consolidated financial statements for the year ended December 31, 2022; Optinose - 2023 Proxy Statement | 28
•reviewed and approved the proposed 2023 fees for the independent audit, and approved the appointment of the independent auditors for the independent audit of the consolidated financial statements for the year ended December 31, 2023; •reviewed and discussed with management the Company’s audited consolidated financial statements for the year ended December 31, 2021;2022; Optinose - 2022 Proxy Statement | 24
•discussed with EY the matters required to be discussed by the applicable requirements of the Public Company Accounting Oversight Board (the PCAOB) and the SEC; •discussed with EY their independence, and received from EY the written disclosures and the letter required by applicable requirements of the PCAOB regarding EY’s communications with the Audit Committee concerning independence; and •discussed with EY, with and without management present, the scope and results of EY’s audit of the Company's consolidated financial statements for the year ended December 31, 2021,2022, including a discussion of the quality, not just acceptability, of the accounting principles applied, the reasonableness of significant judgments and the clarity of disclosures in the consolidated financial statements. Based on these reviews and discussions, the Audit Committee recommended to our Board of Directors that such audited consolidated financial statements be included in our Annual Report on Form 10-K for the year ended December 31, 20212022 for filing with the SEC. Members of the Audit Committee Sandra L. Helton (Chairperson) Wilhelmus Groenhuysen Joseph C. ScodariR. John Fletcher
RELATED PARTY TRANSACTIONS
Related Party Transactions Policy
We maintain a related party transactions policy that sets forth our procedures for the identification, review, consideration and approval or ratification of related party transactions. Pursuant to this policy, we review all transactions with a dollar value in excess of $120,000 involving us in which any of our executive officers, directors, director nominees or holders of more than 5% of our capital stock, or any affiliate or member of their immediate family, is a participant. If a transaction has been identified as a related party transaction, including any transaction that was not a related party transaction when originally consummated or any transaction that was not initially identified as a related party transaction prior to consummation, members of management or our directors must present information regarding the proposed related party transaction to our Audit Committee or, where review by our Audit Committee would be inappropriate due to a conflict of interest, to another independent body of our Board of Directors, for review, consideration and approval or ratification. The presentation must include a description of, among other things, all of the parties, the direct and indirect interests of the related persons, the purpose of the transaction, the material facts, the benefits of the transaction to us and whether any alternative transactions are available, an assessment of whether the terms are comparable to the terms available from unrelated third parties and management's recommendation. In considering whether to approve any proposed related party transactions, our Audit Committee or another independent body of our Board of Directors will take into account the relevant available facts and circumstances, including: •the materiality and character of the related person's interest in the transaction; •the commercial reasonableness of the terms of the transaction; •the benefit and perceived benefit, or lack thereof, to us; •the opportunity costs of alternate transactions; and •the actual or apparent conflicts of interest of the related person. The arrangement described below under the "Certain Relationships and Related Party Transactions - Blink Health: Pharmacy Services" was approved in accordance with our related party transaction policy. All of the other arrangements described below under "Certain Relationships and Related Party Transactions"were originally entered into prior to the adoption of this policy in connection with our initial public offering in October 2017. Although prior to the adoption of this policy we did not have a written policy for the review and approval of transactions with related persons, our
Optinose - 2023 Proxy Statement | 29
Board of Directors historically reviewed and approved any transaction where a director or officer had a financial interest, including the transactions described below. Prior to approving such a transaction, the material facts as to a director's or officer's relationship or interest in the agreement or transaction were disclosed to our Board of Directors. Our Board of Directors took this information into account when Optinose - 2022 Proxy Statement | 25
evaluating the transaction and in determining whether such transaction was fair to us and in the best interest of our stockholders.
Certain Relationships and Related Party Transactions The following includes a summary of transactions since January 1, 20202021 to which we have been a party in which the amount involved exceeded or will exceed the lesser of $120,000 or one percent of the average of the company’s total assets at year end for the last two completed fiscal years, and in which any of our directors, executive officers or beneficial owners of more than 5% of our capital stock, or any members of their immediate family, had or will have a direct or indirect material interest, other than compensation arrangements that are described in the "Executive Compensation" and "Director Compensation" sections of this Proxy Statement.
Blink Health: Pharmacy Services
We are party to various service agreements with Blink Health Ltd. (Blink). Blink is part of the XHANCE Preferred Pharmacy Network (PPN) that provides patient support services, such as patient intake, benefit investigation, prior authorizations support, copay support, and patient assistance. In addition, Blink administers our copay assistance program for patients that fill their XHANCE prescriptions through Blink's network of pharmacy providers. During the years ended December 31, 2020 and 2021, we paid Blink $262,609 and $1,016,422, respectively, for these services. Mr. William Doyle, a member of our board of directors from 2010 until his resignation in December 2020, serves as Executive Chairman of Blink Health Ltd. See the "Corporate Governance and Board Matters - Director Independence" section of this Proxy Statement for a description of the relationship between Blink and our former Board member, Mr. Doyle.
Second Amended and Restated Registration Rights Agreement We are party to a Second Amended and Restated Registration Rights Agreement, which we amended in connection with our initial public offering in October 2017 (as amended, the Registration Rights Agreement). Pursuant to the Registration Rights Agreement, certain holders of shares of our common stock have registration rights. After registration of these shares of common stock pursuant to these rights, these shares will become freely tradable without restriction under the Securities Act. The registration rights will terminate with respect to each stockholder on the date on which such stockholder ceases to beneficially own more than one percent of our shares of common stock then outstanding or can sell all of its registrable shares without limitation during a three-month period without registration pursuant to Rule 144 of the Securities Act or another similar exemption under the Securities Act. Stockholders' Agreement We entered into a Stockholders' AgreementOn June 30, 2022, we and certain entities affiliated with Avista Capital Partners (the "Stockholder Parties") mutually agreed to terminate that certain Stockholders’ Agreement, dated as of October 2, 2017 to which we were parties (the “Stockholders’ Agreement”). The Stockholders’ Agreement provided the Stockholder Parties with the right to designate individuals for nomination to our Board of Directors, subject to the number of outstanding shares of Company common stock held by the Stockholder Parties and other requirements set forth in connection with our initial public offering in October 2017. See the "Corporate Governance and Board Matters -Stockholders’ Agreement. At the time the Stockholders' Agreement" section of this Proxy Statement for a summary of certain termsAgreement was terminated, there were no nominees of the agreement.Stockholder Parties serving on our Board of Directors.
Director and Officer Indemnification Arrangements We have entered into indemnification agreements with our directors and executive officers, in addition to the indemnification, expense advancement and limitations of liability provided for in our Certificate of Incorporation and our Bylaws. These indemnification agreements provide our directors and executive officers with contractual rights to indemnification and, in some cases, expense advancement in any action or proceeding arising out of their services as one of our directors or executive officers or as a director or executive officer of any other company or enterprise to which the person provides services at our request. We also maintain a directors' and officers' insurance policy pursuant to which our directors and officers are insured against liability for actions taken in their capacities as directors and officers.
Our named executive officers for the year ended December 31, 20212022 are: ▪Peter K. Miller, our former Chief Executive Officer; Optinose - 2022 Proxy Statement | Officer26(1)
▪Ramy A. Mahmoud, M.D., M.P.H. , our current Chief Executive Officer and our former President and Chief Operating Officer; ▪OfficerVictor M. Clavelli, our Chief Commercial Officer;
▪(2)Keith A. Goldan, our Chief Financial Officer;; and
▪Michael F. Marino, our Chief Legal Officer and Corporate SecretarySecretary. (1)Mr. Miller served as our Chief Executive Officer until January 30, 2023. Optinose - 2023 Proxy Statement | 30
(2)Dr. Mahmoud served as our President and Chief Operating Officer until January 30, 2023 upon his appointment as Chief Executive Officer.
Summary Compensation Table The following table provides information regarding the compensation awarded to, earned by or paid to our named executive officers for the years ended December 31, 20212022 and 2020.2021. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Name and Principal Position | | Year | | Salary ($) | | Bonus ($) | | Stock Awards ($)(1) | | Option Awards ($)(2) | | Non-Equity Incentive Compensation ($)(3) | | All Other Compensation ($)(4) | | Total ($) | Peter K. Miller | | 2021 | | 636,593 | | | $ | — | | | 690,301 | | | 674,839 | | | 248,271 | | | 12,368 | | | 2,262,372 | | Chief Executive Officer | | 2020 | | 618,051 | | | — | | | 1,441,669 | | | 658,064 | | | 369,595 | | | 12,168 | | | 3,099,547 | | | | | | | | | | | | | | | | | | | Ramy A. Mahmoud | | 2021 | | 503,933 | | | — | | | 351,000 | | | 343,138 | | | 151,180 | | | 23,441 | | | 1,372,692 | | President and Chief Operating Officer | | 2020 | | 489,255 | | | — | | | 630,667 | | | 246,774 | | | 225,057 | | | 23,241 | | | 1,614,994 | | | | | | | | | | | | | | | | | | | Victor M. Clavelli | | 2021 | | 448,050 | | | — | | | 187,199 | | | 183,007 | | | 120,974 | | | 9,705 | | | 948,935 | | Chief Commercial Officer | | 2020 | | 380,625 | | | — | | | 324,600 | | | 411,805 | | | 156,900 | | | 12,040 | | | 1,285,970 | | | | | | | | | | | | | | | | | | | Keith A. Goldan | | 2021 | | 428,349 | | | — | | | 187,199 | | | 183,007 | | | 115,654 | | | 12,368 | | | 926,577 | | Chief Financial Officer | | 2020 | | 415,873 | | | — | | | 165,367 | | | 150,861 | | | 172,171 | | | 12,168 | | | 916,440 | | | | | | | | | | | | | | | | | | | Michael F. Marino | | 2021 | | 431,628 | | | — | | | 187,199 | | | 183,007 | | | 116,539 | | | 12,368 | | | 930,741 | | Chief Legal Officer and Corporate Secretary | | 2020 | | 419,056 | | | — | | | 165,367 | | | 150,861 | | | 173,489 | | | 12,168 | | | 920,941 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Name and Principal Position | | Year | | Salary ($) | | Bonus ($) | | Stock Awards ($)(1) | | Option Awards ($)(2) | | Non-Equity Incentive Compensation ($)(3) | | All Other Compensation ($)(4) | | Total ($) | Peter K. Miller | | 2022 | | 636,593 | | | — | | | 398,675 | | | 544,497 | | | — | | | 14,480 | | | 1,594,245 | | Former Chief Executive Officer | | 2021 | | 636,593 | | | — | | | 690,301 | | | 674,839 | | | 248,271 | | | 12,368 | | | 2,262,372 | | | | | | | | | | | | | | | | | | | Ramy A. Mahmoud | | 2022 | | 503,933 | | | — | | | 109,502 | | | 298,901 | | | 204,093 | | | 23,561 | | | 1,139,990 | | Chief Executive Officer and Director | | 2021 | | 503,933 | | | — | | | 351,000 | | | 343,138 | | | 151,180 | | | 23,441 | | | 1,372,692 | | | | | | | | | | | | | | | | | | | Michael F. Marino | | 2022 | | 431,628 | | | — | | | 104,951 | | | 287,506 | | | 157,328 | | | 15,281 | | | 996,694 | | Chief Legal Officer and Corporate Secretary | | 2021 | | 431,628 | | | — | | | 187,199 | | | 183,007 | | | 116,539 | | | 12,368 | | | 930,741 | |
(1)The amounts in this column represent the aggregate grant date fair value of the restricted stock unit grants (RSUs), calculated in accordance with Financial Accounting Standards Board (FASB), Accounting Standards Codification, or ASC, Topic 718. These amounts do not necessarily correspond to the actual value that may be realized by the executive in connection with his RSU awards. The assumptions made in valuing the RSUs reported in this column are described in our audited consolidated financial statements (Note 3. Summary of Significant Accounting Policies - Stock-based compensation and Note 13,14, Stock-based Compensation) included in our Annual Report on Form 10-K for the year-ended December 31, 2021,2022, as filed with the SEC. In accordance with SEC rules, the grant date fair value of any award subject to a performance condition is based upon the probable outcome of the performance conditions. RSU awards with performance conditions that have been deemed not probable of achievement as of the grant date have not been included in this column as no compensation expense has been recognized under ASC Topic 718 during the year ended December 31, 2021. The grant date fair value of such excluded RSUs with performance conditions, assuming achievement of the highest level of performance conditions, are $939,176, $529,168, $216,400, $330,372, and $330,372 for Mr. Miller, Dr. Mahmoud, Mr. Clavelli, Mr. Goldan and Mr. Marino, respectively. (2)The amounts in this column represent the aggregate grant date fair value of the options grants, calculated in accordance with FASB ASC Topic 718. These amounts do not necessarily correspond to the actual value that may be realized by the executive in connection with his option awards. The assumptions made in valuing the option awards reported in this column are described in our audited consolidated financial statements (Note 3. Summary of Significant Accounting Policies - Stock-based compensation and Note 13,14, Stock-based Compensation) included in our Annual Report on Form 10-K for the year-ended December 31, 2021,2022, as filed with the SEC. The amounts reported for 2022 represent the aggregate grant date fair value for the time-based stock options ($265,330, $106,536 and $101,933) and the market-based stock options ($279,167, $192,547 and $185,573) granted to Messrs. Miller, Mahmoud and Marino in 2022, respectively, calculated in accordance with ASC Topic 718. Pursuant to ASC Topic 718, the grant date fair value for the market-based stock options was calculated using a Monte Carlo model which accounts for the probability of the market condition being achieved. If it were assumed that the full number of market-based stock options would be earned, the grant date fair value of such options (calculated using the Black Scholes Option Pricing model and the assumptions applicable to the time-based options) would have been $299,470, $206,550 and $199,069 for Messrs. Miller, Mahmoud and Marino, respectively. (3)The amounts in this column represent performance bonuses earned by the named executive officers in the year shown based upon the achievement of pre-established performance objectives. See "— Non-Equity Incentive Plan Compensation" below. (4)The amounts in this column include matching contributions to the named executive officers’ accounts under our 401(k) plan and premiums paid with respect to life insurance for the benefit of the named executive officers. The 401(k) matching contribution was $12,200 and $11,600 for 2022 and $11,4002021, for 2021Messrs. Miller and 2020, respectively, for each of our named executive officers other than Mr. Clavelli.Marino. The 401(k) matching contribution for Mr Clavelli was $9,065Mahmoud for 2022 and $11,400 for 2021 were $9,407 and 2020, respectively.$11,600. Additionally, the amount in this Optinose - 2022 Proxy Statement | 27
column for Dr. Mahmoud includes a payment of $11,073 in both 20212022 and 20202021 related to a life insurance policy for certain additional life insurance benefits pursuant to the terms of his employment agreement as described below under "Employment Agreements."
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Elements of Compensation 20212022 Base Salaries
Effective as of January 1, 2021, the annualThe base salaries for each of Messrs. Miller, Mahmoud, Goldan, Marino and Clavelli were increased by 3% to $636,593, $503,933, $428,349, $431,628 and $448,050, respectively.
2022 Base Salaries
Each of our named executive officers, which are listed below, remained unchanged from 2021, as each named executive officer agreed to forgo a base salary increase forin 2022 in furtherance of our broader goals to preserve cash.
| | | | | | | | | | | | | Named Executive Officer | | 2022 Base Salary | | Peter K. Miller | | $636,593 | | Ramy A. Mahmoud | | $503,933 | | Michael F. Marino | | $431,628 |
Non-Equity Incentive Plan Compensation Each of our executive officers is eligible to receive an annual performance bonus based on the achievement of corporate objectives as determined by our Board of Directors or Compensation Committee. Each executive officer is assigned a target bonus expressed as a percentage of his base salary. The target bonus amounts for 20212022 were as follows: 65% for Mr. Miller , 50% for Dr. Mahmoud, and 45% for Messrs. Goldan, Marino and Clavelli.Mr. Marino. Actual performance bonus payments under the plan may be 0-150% of the target bonus amount based on the level of achievement of corporate objectives for the year, as determined by our Board of Directors or Compensation Committee. For 2021,2022, the corporate objectives consisted primarily of: (i) 20212022 XHANCE net revenue targets; (ii) completion dates for our chronic sinusitis trials; (iii) securing theensuring quality product supply chain and ensuringoptimizing our supply chain; (iv) sustaining and improving efficient, effective and compliant business continuity; (iv) improving business process to compliantly excelprocesses; (v) building scientific basis for adoption of XHANCE as a publicly-traded commercial company; (v) real world evidence generation to further differentiate XHANCE;part of "standard of care" for chronic sinusitis; (vi) pipeline and strategies to enhanceenhancing enterprise value; and (vii) nurturing an environment in which people love to work. In the first quarter of 2022,2023, the Compensation Committee assessed our level of achievement of the plan objectives. Although the level of achievement of plan objectives would have resulted inand awarded Dr. Mahmoud and Mr. Marino a higher payout, our Compensation Committee reduced each executive officer's payoutperformance bonus equal to 60%81% of target. The Compensation Committee elected to reduce payouts because the CompanyBoard did not achieve at least $80 million of XHANCE net revenues in 2021, because of the degree to which the trading price of the Company's common stock decreased in 2021 and to preserve cash.award Mr. Miller a performance bonus for 2022. Actual bonus amounts paid with respect to 20212022 performance are reflected in the "Non-Equity Incentive Plan Compensation" column of the Summary Compensation Table above.
Option Awards and Restricted Stock Units Granted During 20212022
On March 4, 2021,January 11, 2022, Mr. Miller, and Dr. Mahmoud and Mr. Marino were each granted non-qualifieda mix of stock options subject to purchase 295,000time-based vesting conditions ("time-based options"), stock options subject to market-based vesting conditions ("market-based options") and 150,000 shares of our commonrestricted stock respectively, withunits subject to time-based vesting conditions ("RSUs"). Mr. Miller received 221,500 time-based options, 250,000 market-based options and 215,500 RSUs. Dr. Mahmoud received 88,785 time-based options, 172,430 market-based options and 59,190 RSUs. Mr. Marino received 85,095 time-based options, 166,185 market-based options and 56,730 RSUs. The time-based options and market-based options have an exercise price of $3.51 per share, which was equal to the closing price of our common stock on the date of grant. Messrs. Goldan, Marino and Clavelli were each granted non-qualified options to purchase 80,000 shares of our common stock, with an exercise price of $3.51$1.85 per share, which was equal to the closing price of our common stock on the date of grant. Subject to the executive's continued employment or providing service to us on each applicable vesting date, (i) 25% of the shares underlying thesethe time-based options vested on March 4, 2022,January 11, 2023, with the remainder vesting in equal monthly installments thereafter through March 4, 2025.
On March 4, 2021, grantsJanuary 11, 2026 and (ii) 25% of restricted stock units were also made to our named executive officers. Mr. Miller and Dr. Mahmoud were granted 196,667 and 100,000 restricted stock unitsthe RSUs vested on January 11, 2023, with the remainder vesting in twelve equal quarterly installments thereafter. The market-based options will vest, if at all, following the achievement of ourcertain trading price thresholds of OptiNose, Inc. common stock, respectively. Messrs. Goldan, Marino and Clavelli were each granted 53,333 restricted stock units of our common stock. Subjectsubject to the executive's continued employment or providing service to us on each applicable vesting date, 25% of the restricted stock units vested on March 15, 2022, with the remainder vesting in equal quarterly installments thereafter through March 15, 2025.such dates.
401(k) Plan We currently maintain a defined contribution 401(k) retirement plan for all our employees in the United States, including our named executive officers. Employees are eligible to participate in the 401(k) Plan on the first month following their date of hire. Under the terms of the 401(k) Plan, participating employees may defer up to 100% of their salary on either a pre-tax or post-tax Roth basis, up to applicable statutory limits. We currently match employee pre-tax and Roth contributions to the 401(k) Plan, up to a safe harbor match. The match is 100% of every dollar of the first 3% of the employee’s contribution and then 50% on the next 2% of the employee’s pre-tax and post-tax Roth contributions. This allows for a maximum match equal to 4% of eligible compensation, provided such employees contribute 5%. of eligible compensation. Matching contributions are subject to Internal Revenue Service limits. Employee contributions and our company safe harbor matching contributions to the 401(k) Plan vest immediately.
In addition to the traditional pre-tax and Roth contribution options, in 2021,2022, we rolled outimplemented an after-tax contribution with Roth conversion option to all employees. After-tax contributions are subject to the IRS415(c)IRS 415(c) Annual Additions Limit. Highly Optinose - 2022 Proxy Statement | 28
compensated employees were eligible to participate up to a maximum contribution of $10,000$15,000 for 2021.2022. Dr. Mahmoud and Mr. Goldan each contributed $10,000$15,000 in 2021.2022. Contribution limits for highly compensated employees are set annually. 2017 Employee Stock Purchase Plan We maintain an employee stock purchase plan. Generally, all eligible employees, including our named executive officers, employed by us or by any of our participating affiliates, may participate in our 2017 Employee Stock Purchase Plan (2017 Optinose - 2023 Proxy Statement | 32
ESPP) and may contribute through payroll deductions up to 15% of their eligible compensation for the purchase of our common stock under the 2017 ESPP.ESPP, subject to certain limitations. Unless otherwise determined by our Board of Directors or Compensation Committee, the purchase price per share of our common stock under the 2017 ESPP is 85% of the lesser of the average of the high and low sales price of our common stock on (i) the first trading day of the relevant offering period and (ii) the last trading day of the relevant offering period. No employee may purchase shares of our common stock in any calendar year under the 2017 ESPP having an aggregate fair market value in excess of $25,000, determined as of the first trading day of the offering period. For the offering period ended June 30, 2021,2022, Mr. Miller and Mr. Marino purchased 6,03814,170 and 14,160 shares, respectively, under the 2017 ESPP at a per share purchase price of $2.72.$1.50. Employee Benefits and Perquisites Our executive officers are eligible to participate in our health and welfare programs to the same extent as all full-time employees generally and accrue 160 hours (20 days) of paid vacation annually in accordance with our vacation policy, which includes an ability to carry over vacation time into the next year, up to a maximum of 1.5 times the total annual accrual. We also provide our executive officers and other employees with term life insurance and disability insurance at our expense. In addition, Dr. Mahmoud receives certain additional life insurance benefits pursuant to the terms of his employment agreement as described below under "Employment Agreements." Employment Agreements We have entered into an employment agreement with each of our executive officers. The employment agreements will continue until either we or the executive terminate his employment with us. In connection with Mr. Miller stepping down as Chief Executive Officer on January 30, 2023, we and Mr. Miller mutually agreed that Mr. Miller's employment would terminate as of January 31, 2023, at which time his employment agreement terminated.
The executive employment agreements provide that the executive will receive a base salary, be eligible to receive an annual cash bonus contingent upon the attainment of certain company milestones and/or individual objectives, be eligible to receive annual equity awards based on our and his performance and be eligible to participate in our other short-term and long-term incentive programs. Pursuant to the employment agreements, each executive's base salary and target bonus will be reviewed periodically by our Compensation Committee or Board of Directors. The employment agreements also provide for certain termination benefits, which are described below in the section entitled "Potential Payments Upon a Termination or Change of Control."
Further, each such executive's employment agreement contains restrictive covenants relating to non-disclosure of confidential information, mutual non-disparagement, assignment of inventions, non-competition and non-solicitation of employees, customers and suppliers. The non-competition and non-solicitation restrictive covenants run for a period of time following the executive's termination of employment, as set forth in the following schedule:
| | | | | | | | | | Restricted Period Following Termination by us without Cause or by the Executive for Good Reason, in each case within three (3) months prior to a Change of Control or eighteen (18) months after a Change of Control | Restricted Period Following a Termination for Other Reasons | Mr. Miller | Twenty-four (24) months | Nine (9) months | Dr. Mahmoud | Twenty-one (21) months | Nine (9) months | Messrs. Clavelli, Goldan and Marino | Eighteen (18) months | Nine (9) months |
Dr. Mahmoud's employment agreement also requires us to pay the premiums for a term life insurance policy for him that has a death benefit equal to approximately $3.0 million, and a whole life insurance policy for him that has a death benefit equal to approximately $1.0 million.
Mr. Clavelli’sAdditionally, each such executive's employment agreement requirescontains restrictive covenants relating to non-disclosure of confidential information, mutual non-disparagement, assignment of inventions, non-competition and non-solicitation of employees, customers and suppliers. In the event Dr. Mahmoud or Mr. Marino is terminated by us without "cause" or by the executive for "good reason" (each as defined in the executive's employment agreement), in each case, within three (3) months prior to pay certain relocation benefits should he relocate toa "change of control" (as defined in the Yardley, Pennsylvania area no later than December 31, 2022.2010 Stock Incentive Plan) or eighteen (18) months after a "change of control", then the non-competition and non-solicitation restrictive covenants run for twenty-four (24) months for Dr. Mahmoud and eighteen (18) months for Mr. Marino following such executive's termination of employment; and nine (9) months in the event the executive's employment is terminated for any other reason.
Retention Agreement with Mr. Marino
Peter K. Miller - Separation and Consulting Agreements
On March 8, 2022, we entered into a Retention Agreement with Mr. Marino. The Retention Agreement provides that we will pay Mr. Marino a retention bonus of $100,000 (the "Retention Bonus") in the event Mr. Marino remains employed with us until
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In connection with Mr. Miller stepping down as Chief Executive Officer and as a member of the Board, we entered into a Separation Agreement and General Release with Mr. Miller providing for (i) the termination of his employment effective as of January 15, 2023.31, 2023, (ii) a payment to Mr. Miller equal to twelve (12) months of his base salary and target bonus, such payment to be made in twenty-four (24) substantially equivalent semi-monthly installments, and (iii) twelve (12) months of continued coverage under the Company’s group health insurance plan through COBRA at active employee rates. The payments and other benefits payable to Mr. Miller pursuant to the Separation Agreement and General Release are subject to his non-revocation of a release of claims and compliance with restrictive covenants relating to non-disclosure of confidential information, mutual non-disparagement, assignment of inventions, non-competition and non-solicitation of employees, customers and suppliers. In addition, we entered into a Consulting Agreement with Mr. Miller, dated January 30, 2023 (the “Miller Consulting Agreement”) pursuant to which Mr. Miller is providing certain transition and other services to us. The Miller Consulting Agreement has a term of six (6) months and provides that (i) Mr. Miller will receive a monthly retainer of $10,000, (ii) Mr. Miller’s outstanding equity grants will continue to vest during the eventterm of the Miller Consulting Agreement and shall remain exercisable until December 31, 2023, and (iii) Mr. Marino’s employment is terminated by us without “cause”Miller may not solicit our employees, customers or by Mr. Marinosuppliers during the term of the agreement and for “good reason” (as defined ina period of one (1) year following the Retention Agreement) prior to January 15, 2023,termination of the Retention Bonus shall become payable.Miller Consulting Agreement. Potential Payments Upon a Termination or Change of Control Peter K. Miller
Pursuant to his employment agreement with us, if Mr. Miller's employment is terminated by us without "cause" or by Mr. Miller for "good reason," each as defined in the employment agreement, then Mr. Miller is entitled to receive the following severance benefits, subject to his execution and non-revocation of a release of claims and compliance with the restrictive covenants set forth in his employment agreement:
•An amount equal to 100% of his base salary and target bonus opportunity at the rate in effect on his date of termination, payable in accordance with our normal payroll practices over the twelve (12) month period following termination; and
•continuation of coverage under our group health insurance plan under the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”) at active employee rates beginning on the first day of the month following his termination date and continuing for a period of twelve (12) months at the same level of coverage he elected during his employment and on the same terms and conditions generally afforded to active employees, provided he and his eligible dependents enroll with our COBRA administrator within sixty (60) days after his termination date.
Pursuant to his employment agreement with us, if Mr. Miller's employment is terminated by us without "cause" or by Mr. Miller for "good reason," in each case, within three (3) months prior to a "change of control" (as defined in our Amended and Restated 2010 Stock Incentive Plan (2010 Plan)), or eighteen (18) months after a “change of control,” then Mr. Miller is entitled to receive the following severance benefits, subject to his execution and non-revocation of a release of claims and compliance with the restrictive covenants set forth in his employment agreement:
•an amount equal to 200% of Mr. Miller’s base salary and target bonus opportunity at the rate in effect on his date of termination, payable in a single lump sum cash payment;
•an amount equal to Mr. Miller’s pro rata annual cash bonus for the year in which the termination of employment occurs, which will be equal to the greater of (x) his target annual cash bonus opportunity for the year in which termination of employment occurs, multiplied by a fraction, the numerator of which is the number of days in which he was employed by Company during the year in which the termination of employment occurs, and the denominator of which is three hundred sixty-five (365), and (y) an annualized amount of bonus for such year as determined by the Board in good faith based on the achievement of objectives up to the change of control, multiplied by a fraction, the numerator of which is the number of days in which he was employed by Company during the year in which the termination of employment occurs, and the denominator of which is three hundred sixty-five (365). Such pro rata bonus would be payable in a single lump sum cash payment;
•continuation of coverage under our group health insurance plan through COBRA at active employee rates for a period of eighteen (18) months at the same level of coverage he elected during his employment and on the same terms and conditions generally afforded to active employees, provided he and his eligible dependents enroll with our COBRA administrator within sixty (60) days after the termination date;
•following the expiration of the 18-month COBRA subsidy period, Mr. Miller is entitled to an additional lump sum, equivalent to the value of the then-in effect premium for the health insurance coverages and coverage level in which he was enrolled while participating in COBRA for a period of six (6) months, less applicable income and employment taxes and withholdings; and
•all of Mr. Miller's then-outstanding equity awards granted to him by us will become immediately vested.
To the extent Mr. Miller’s employment is terminated by us without “cause” or by Mr. Miller for “good reason,” in each case, at any time following a “change of control,” without limiting any severance benefits specifiedAs noted above, Mr. Miller shall receive twelve (12) monthsstepped down as Chief Executive Officer on January 30, 2023, consequently, he is not included in this discussion. See "Employment Agreements - Peter K. Miller - Separation and Consulting Agreements" above for a description of vesting acceleration with respect to all of Mr. Miller’s then-outstanding equity awards granted to him by us or assumed, continued or substituted for by the acquiring entity in such “change of control” transaction.benefits he received upon his departure.
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Dr. Ramy A. Mahmoud Pursuant to hisDr. Mahmoud's amended and restated employment agreement with us, if Dr. Mahmoud's employment is terminated by us without "cause" or by Dr. Mahmoud for "good reason," each as defined in thehis employment agreement, then Dr. Mahmoud is entitled to receive the following severance benefits, subject to his execution and non-revocation of a release of claims and compliance with the restrictive covenants set forth in his employment agreement:
•an amount equal to 100% of his base salary and target bonus opportunity at the rate in effect on his date of termination, payable in accordance with our normal payroll practices over the twelve (12) month period following termination; and
•continuation of coverage under our group health insurance plan under COBRA at active employee rates beginning on the first day of the month following his termination date and continuing for a period of twelve (12) months at the same level of coverage he elected during his employment and on the same terms and conditions generally afforded to active employees, provided he and his eligible dependents enroll with our COBRA administrator within sixty (60) days after the Executive’s termination date.
Pursuant to his employment agreement with us, if Dr. Mahmoud's employment is terminated by us without "cause" or by Dr. Mahmoud for "good reason," in each case, within three (3) months prior to a "change of control" (as defined in the 2010 Stock Incentive Plan), or eighteen (18) months after a “change of control,” then Dr. Mahmoud is entitled to receive the following severance benefits, subject to his execution and non-revocation of a release of claims and compliance with the restrictive covenants set forth in his employment agreement:
•an amount equal to 175%200% of Dr. Mahmoud's base salary and target bonus opportunity at the rate in effect on his date of termination, payable in a single lump sum cash payment;
•an amount equal to Dr. Mahmoud’s pro rata annual cash bonus for the year in which the termination of employment occurs, which will be equal to the greater of (x) his target annual cash bonus opportunity for the year in which termination of employment occurs, multiplied by a fraction, the numerator of which is the number of days in which he was employed by Company during the year in which the termination of employment occurs, and the denominator of which is three hundred sixty-five (365), and (y) an annualized amount of bonus for such year as determined by the Board in good faith based on the achievement of objectives up to the change of control, multiplied by a fraction, the numerator of which is the number of days in which he was employed by Company during the year in which the termination of employment occurs, and the denominator of which is three hundred sixty-five (365). Such pro rata bonus would be payable in a single lump sum cash payment;
•continuation of coverage under our group health insurance plan through COBRA at active employee rates for a period of eighteen (18) months at the same level of coverage he elected during his employment and on the same terms and conditions generally afforded to active employees, provided he and his eligible dependents enroll with our COBRA administrator within sixty (60) days after the termination date (the “COBRA Subsidy Period”);
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•following the expiration of the 18-month COBRA Subsidy Period, Dr. Mahmoud is entitled to an additionala lump sum payment equivalent to the value of the then-in effectthen-in-effect premium for the health insurance coverages and coverage level in which he was enrolled while participating in COBRA for a period of three (3)six (6) months, less applicable income and employment taxes and withholdings; and
•all of Dr. Mahmoud's then-outstanding equity awards granted to him by us will become immediately vested.
To the extent Dr. Mahmoud's employment is terminated by us without “cause” or by Dr. Mahmoud for “good reason,” in each case, at any time following a “change of control,” without limiting any severance benefits specified above, Dr. Mahmoud shall receive twelve (12) months of vesting acceleration with respect to all of Dr. Mahmoud's then-outstanding equity awards granted to him by us or assumed, continued or substituted for by the acquiring entity in such “change of control” transaction. Victor M. Clavelli, Keith A. Goldan and Michael F. Marino
Pursuant to each of their respectiveMr. Marino's amended and restated employment agreementsagreement with us, if Messrs. Clavelli's, Goldan's orMr. Marino's as applicable, employment is terminated by us without "cause" or by Messrs. Clavelli, Goldan orMr. Marino as applicable, for "good reason," each as defined in their respectivehis employment agreement, then Messrs. Clavelli, Goldan orMr. Marino as applicable, is entitled to receive the following severance benefits, subject to his execution and non-revocation of a release of claims and compliance with the restrictive covenants set forth in his employment agreement:
•an amount equal to twelve (12) months of their respectiveMr. Marino's base salary at the rate in effect on his date of termination, payable in accordance with our normal payroll practices over the twelve (12) month period following termination; and
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•continuation of coverage under our group health insurance plan through COBRA at active employee rates for a period of twelve (12) months at the same level of coverage he elected during his employment and on the same terms and conditions generally afforded to active employees, provided he and his eligible dependents enroll with our COBRA administrator within sixty (60) days after the termination date.
Pursuant to each of their respectivehis employment agreementsagreement with us, if Messrs. Clavelli's, Goldan's orMr. Marino's as applicable, employment is terminated by us without "cause" or by Messrs. Clavelli, Goldan orMr. Marino as applicable, for "good reason," in each case, within three (3) months prior to a "change of control" (as defined in the 2010 Stock Incentive Plan), or eighteen (18) months after a “change of control,” then Messrs. Clavelli, Goldan orMr. Marino as applicable, is entitled to receive the following severance benefits, subject to his execution and non-revocation of a release of claims and compliance with the restrictive covenants set forth in his employment agreement:
•an amount equal to 150% of Messrs. Clavelli's, Goldan's orMr. Marino's as applicable, annual base salary and target bonus opportunity at the rate in effect on his date of termination, payable in a single lump sum cash payment;
•an amount equal to Messrs. Clavelli’s, Goldan’s orMr. Marino’s as applicable, pro rata annual cash bonus for the year in which the termination of employment occurs, which will be equal to the greater of (x) his target annual cash bonus opportunity for the year in which termination of employment occurs, multiplied by a fraction, the numerator of which is the number of days in which he was employed by Company during the year in which the termination of employment occurs, and the denominator of which is three hundred sixty-five (365), and (y) an annualized amount of bonus for such year as determined by the Board in good faith based on the achievement of objectives up to the change of control, multiplied by a fraction, the numerator of which is the number of days in which he was employed by Company during the year in which the termination of employment occurs, and the denominator of which is three hundred sixty-five (365). Such pro rata bonus would be payable in a single lump sum cash payment;
•continuation of coverage under our group health insurance plan through COBRA at active employee rates for a period of eighteen (18) months at the same level of coverage he elected during his employment and on the same terms and conditions generally afforded to active employees, provided he and his eligible dependents enroll with our COBRA administrator within sixty (60) days after the termination date; and
•all of Messrs. Clavelli's, Goldan's orMr. Marino's as applicable, then-outstanding equity awards granted to him by us will become immediately vested.
To the extent Messrs. Clavelli's, Goldan's orMr. Marino's as applicable, employment is terminated by us without “cause” or by Messrs. Clavelli, Goldan orMr. Marino as applicable, for “good reason,” in each case, at any time following a “change of control,” without limiting any severance benefits specified above, such executivehe shall receive twelve (12) months of vesting acceleration with respect to all of such executive’sthe then-outstanding equity awards granted to him by us or assumed, continued or substituted for by the acquiring entity in such “change of control” transaction.
In addition, on March 8, 2022, we entered into a Retention Agreement with Mr. Marino, which provided that we would pay Mr. Marino a retention bonus of $100,000 (the "Retention Bonus") in the event Mr. Marino remains employed with us until January 15, 2023. In the event Mr. Marino’s employment was terminated by us without “cause” or by Mr. Marino for “good reason” (as defined in the Retention Agreement) prior to January 15, 2023, the Retention Bonus would have become payable. The Retention Bonus was earned and paid to Mr. Marino in January 2023. Optinose - 20222023 Proxy Statement | 3235
Outstanding Equity Awards at Fiscal Year-End The following table sets forth information concerning outstanding equity awards for each of our named executive officers as of December 31, 2021. With the exception of certain equity awards granted to Mr. Clavelli pursuant to the Nasdaq inducement grant exception in accordance with Nasdaq Listing Rule 5635(c)(4), all2022. All equity awards granted to our named executive officers were made pursuant to ourthe 2010 Stock Incentive Plan. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Option Awards | | Stock Awards | Name | Number of Securities Underlying Unexercised Options (#) Exercisable | | Number of Securities Underlying Unexercised Options (#) Unexercisable | | Option Exercise Price ($) | | Option Expiration Date | | Number of Shares or Units of Stock That Have Not Vested (#) | | Market Value of Shares or Units of Stock That Have Not Vested ($) | | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units, or Other Rights That Have Not Vested($) | Peter K. Miller | 36,459 | | | — | | | 3.05 | | | 3/11/2024 | | | | | | | | | | 577,580 | | | — | | | 16.31 | | | 4/7/2024 | | | | | | | | | | 72,197 | | | — | |
| 5.14 | | | 12/20/2026 | | | | | | | | | | 259,911 | | | — | | (1) | 16.00 | | | 10/12/2027 | | | | | | | | | | 155,833 | | | 64,167 | | (4) | 7.42 | | 2/28/2029 | | | | | | | | | | 87,500 | | | 112,500 | | (5) | 5.41 | | | 3/6/2030 | | | | | | | | | | — | | | 295,000 | | (7) | 3.51 | | | 3/4/2031 | | 351,174 | (8) | 572,414 | | | 173,600 | | (12) | 282,968 | | | | | | | | | | | | | | | | | | Ramy A. Mahmoud | 115,516 | | | — | | | 3.05 | | | 3/11/2024 | | | | | | | | | | 288,790 | | | — | | | 16.31 | | | 4/7/2024 | | | | | | | | | | 202,153 | | | — | | (1) | 16.00 | | | 10/12/2027 | | | | | | | | | | 106,250 | | | 43,750 | | (4) | 7.42 | | 02/28/2029 | | | | | | | | | | 32,812 | | | 42,188 | | (5) | 5.41 | | | 3/6/2030 | | | | | | | | | | — | | | 150,000 | | (7) | 3.51 | | | 3/4/2031 | | 167,878 | (9) | 273,641 | | | 97,813 | | (12) | 159,435 | | | | | | | | | | | | | | | | | | Victor M.Clavelli | 41,250 | | | 48,750 | | (6) | 7.41 | | | 2/17/2030 | | | | | | | | | | — | | | 80,000 | | (7) | 3.51 | | | 3/4/2031 | | 87,083 | (10) | 141,945 | | | 40,000 | | (12) | 65,200 | | | | | | | | | | | | | | | | | | Keith A. Goldan | 158,834 | | | — | | (2) | 5.14 | | | 1/23/2027 | | | | | | | | | | 72,197 | | | — | | (1) | 16.00 | | | 10/12/2027 | | | | | | | | | | 58,438 | | | 24,062 | | (4) | 7.42 | | 02/28/2029 | | | | | | | | | | 20,059 | | | 25,791 | | (5) | 5.41 | | | 3/6/2030 | | | | | | | | | | — | | | 80,000 | | (7) | 3.51 | | | 3/4/2031 | | 70,527 | (11) | 114,959 | | | 61,067 | | (12) | 99,539 | | | | | | | | | | | | | | | | | | Michael F. Marino | 144,395 | | | — | | (3) | 5.14 | | | 1/30/2027 | | | | | | | | | | 86,637 | | | — | | (1) | 16.00 | | | 10/12/2027 | | | | | | | | | | 58,438 | | | 24,062 | | (4) | 7.42 | | 2/28/2029 | | | | | | | | | | 20,059 | | | 25,791 | | (5) | 5.41 | | 3/6/2030 | | | | | | | | | | — | | | 80,000 | | (7) | 3.51 | | 3/4/2031 | | 70,527 | (11) | 114,959 | | | 61,067 | | (12) | 99,539 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Option Awards | | Stock Awards | Name | Number of Securities Underlying Unexercised Options (#) Exercisable | | Number of Securities Underlying Unexercised Options (#) Unexercisable | | Equity incentive plan awards: Number of securities underlying unexercisable options | | Option Exercise Price ($) | | Option Expiration Date | | Number of Shares or Units of Stock That Have Not Vested (#) | | Market Value of Shares or Units of Stock That Have Not Vested ($) | | | | | Peter K. Miller | 36,459 | | | — | | | | | 3.05 | | | 3/11/2024 | | | | | | | | | | 577,580 | | | — | | | | | 16.31 | | | 4/7/2024 | | | | | | | | | | 72,197 | | | — | | | |
| 5.14 | | | 12/20/2026 | | | | | | | | | | 259,911 | | | — | | | | | 16.00 | | | 10/12/2027 | | | | | | | | | | 210,833 | | | 9,167 | | | | (1), (10) | 7.42 | | 2/28/2029 | | | | | | | | | | 137,500 | | | 62,500 | | | | (2), (10) | 5.41 | | | 3/6/2030 | | | | | | | | | | 129,062 | | | 165,938 | | | | (3), (10) | 3.51 | | | 3/4/2031 | | | | | | | | | | — | | | 221,500 | | | | (4), (10) | 1.85 | | | 1/11/2032 | | | | | | | | | | 83,333 | | | — | | | 166,667 | | (5), (10) | 1.85 | | | 1/11/2032 | | 497,992 | (6) | 921,285 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Ramy A. Mahmoud | 115,516 | | | — | | | | | 3.05 | | | 3/11/2024 | | | | | | | | | | 288,790 | | | — | | | | | 16.31 | | | 4/7/2024 | | | | | | | | | | 202,153 | | | — | | | | | 16.00 | | | 10/12/2027 | | | | | | | | | | 143,750 | | | 6,250 | | | | (1) | 7.42 | | 02/28/2029 | | | | | | | | | | 51,563 | | | 23,437 | | | | (2) | 5.41 | | | 3/6/2030 | | | | | | | | | | 65,625 | | | 84,375 | | | | (3) | 3.51 | | | 3/4/2031 | | | | | | | | | | — | | | 88,785 | | | | (4) | 1.85 | | | 1/11/2032 | | | | | | | | | | 57,477 | | | — | | | 114,953 | | (5) | 1.85 | | | 1/11/2032 | | 204,425 | (7) | 378,186 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Michael F. Marino | 144,395 | | | — | | | | | 5.14 | | | 1/30/2027 | | | | | | | | | | 86,637 | | | — | | | | | 16.00 | | | 10/12/2027 | | | | | | | | | | 79,063 | | | 3,437 | | | | (1) | 7.42 | | 2/28/2029 | | | | | | | | | | 31,522 | | | 14,328 | | | | (2) | 5.41 | | 3/6/2030 | | | | | | | | | | 35,000 | | | 45,000 | | | | (3) | 3.51 | | 3/4/2031 | | | | | | | | | | — | | | 85,095 | | | | (4) | 1.85 | | 1/11/2032 | | | | | | | | | | 55,395 | | | — | | | 110,790 | | (5) | 1.85 | | 1/11/2032 | | 142,082 | (8) | 262,852 | | | | | | | | | | | | | | | | | | | | | | | |
(1)These options were granted on October 12, 2017 and will vest 25% on the first anniversary of the vesting start date (October 12, 2017), and 2.0833% (approximately 1/48th of such shares), for each subsequent full calendar month that the executive remains employed with us or one of our affiliates. (2)These options were granted on January 23, 2017 and will vest 25% on the first anniversary of the vesting start date (January 23, 2017), and 2.0833% (approximately 1/48th of such shares), for each subsequent full calendar month that the executive remains employed with us or one of our affiliates.
Optinose - 2022 Proxy Statement | 33
(3)These options were granted on January 30, 2017 and will vest 25% on the first anniversary of the vesting start date (January 30, 2017), and 2.0833% (approximately 1/48th of such shares), for each subsequent full calendar month that the executive remains employed with us or one of our affiliates.
(4)These options were granted on February 28, 2019 and will vest 25% on the first anniversary of the vesting start date (February 28, 2020), and 2.0833% (approximately 1/48th of such shares), for each subsequent full calendar month that the executive remains employed with us or one of our affiliates.providing service to us.
(5)(2)These options were granted on March 6, 2020 and will vest 25% on the first anniversary of the vesting start date (March 6, 2021), and 2.0833% (approximately 1/48th of such shares), for each subsequent full calendar month that the executive remains employed with us or one of our affiliates.providing service to us.
(6)Optinose - 2023 Proxy Statement | These options were granted on February 18, 2020 and will vest 25% on the first anniversary36
(7)(3)These options were granted on March 4, 2021 and will vest 25% on the first anniversary of the vesting start date (March 4, 2022), and 2.0833% (approximately 1/48th of such shares), for each subsequent full calendar month that the executive remains employed with us or one of our affiliates.providing service to us.
(8)(4)These options were granted on January 11, 2022 and will vest 25% on the first anniversary of the vesting start date (January 11, 2023), and 2.0833% (approximately 1/48th of such shares), for each subsequent full calendar month that the executive remains employed or providing service to us.
(5)These options were granted on January 11, 2022 and will vest, if at all, following the achievement of certain performance-based objectives relating to the trading price of OptiNose, Inc. common stock while the executive remains employed or providing service to us. (6)Includes (a) 196,667(i) 215,500 restricted stock units granted on January 11, 2022 which will vest 25% on January 11, 2023 and 6.25% (approximately 1/16th of such shares) for each subsequent quarter that the executive remains employed or providing service to us, (ii) 110,625 restricted stock units granted on March 4, 2021 which will vest 25% on March 15,4, 2022 and 6.25% (approximately 1/16th of such shares) for each subsequent quarter that the executive remains employed with us or one of our affiliates, (b) 75,000(iii) 41,667 restricted stock units granted on March 6, 2020 which will vest quarterly in equal installments ending March 15, 2024 for each subsequent quarter that the executive remains employed withor providing service to us, or one of our affiliates,and (c) 79,507 restricted stock units granted on September 15, 2020 which will vest quarterly in equal installments ending September 15, 2024 for each subsequent quarter that the executive remains employed with us or one of our affiliates subject to forfeiture provisions relating to certain stock sales by the executive. (9)Includes (a) 100,000 restricted stock units granted on March 4, 2021 which will vest 25% on March 15, 2022 and 6.25% (approximately 1/16th of such shares) for each subsequent quarter that the executive remains employed with us or one of our affiliates, (b) 28,125(iv) 65,100 restricted stock units granted on March 6, 2020, which will vest quarterly in equal installments ending March 15, 2024 for each subsequent quarter that the executive remains employed with us or one of our affiliates, and (c) 39,753 restricted stock units granted on September 15, 2020 which will vest quarterly in equal installments ending September 15, 2024 for each subsequent quarter that the executive remains employed with us or one of our affiliates subject to forfeiture provisions relating to certain stock sales by the executive.
(10)Includes (a) 53,333 restricted stock units granted on March 4, 2021 which will vest 25% on March 15, 2022 and 6.25% (approximately 1/16th of such shares) for each subsequent quarter that the executive remains employed with us or one of our affiliates, and (b) 33,750 restricted stock units were granted on March 6, 2020 which will vest quarterly in equal installments ending March 15, 2024 for each subsequent quarter that the executive remains employed with us or one of our affiliates subject to forfeiture provisions relating to certain stock sales by the executive.
(11)Includes (a) 53,333 restricted stock units granted on March 4, 2021 which will vest 25% on March 15, 2022 and 6.25% (approximately 1/16th of such shares) for each subsequent quarter that the executive remains employed with us or one of our affiliates, and (b) 17,194 restricted stock units were granted on March 6, 2020 which will vest quarterly in equal installments ending March 15, 2024 for each subsequent quarter that the executive remains employed with us or one of our affiliates subject to forfeiture provisions relating to certain stock sales by the executive.
(12)These restricted stock units were granted on March 6, 2020 and will vest, if at all, following the achievement of certain performance conditions relating to the outcome of our chronic sinusitis trials withbecame 50% vestingvested on the second business day following the Compensation Committee's determination that the performance conditions have been achieved and 6.25% (approximately 1/16th of such shares) vesting on each subsequent quarter that the executive remains employed withor providing service to us.
(7)Includes (i) 59,190 restricted stock units granted on January 11, 2022 which will vest 25% on January 11, 2023 and 6.25% (approximately 1/16th of such shares) for each subsequent quarter that the executive remains employed or providing service to us, (ii) 56,250 restricted stock units granted on March 4, 2021 which will vest 25% on March 4, 2022 and 6.25% (approximately 1/16th of such shares) for each subsequent quarter that the executive remains employed or oneproviding service to us, (iii) 15,625 restricted stock units granted on March 6, 2020 which will vest quarterly in equal installments ending March 15, 2024 for each subsequent quarter that the executive remains employed or providing service to us, and (iv) 36,680 restricted stock units granted on March 6, 2020, that became 50% vested on the second business day following the Compensation Committee's determination that the performance conditions have been achieved and 6.25% (approximately 1/16th of such shares) vesting on each subsequent quarter that the executive remains employed or providing service to us. (8)Includes (i) 56,730 restricted stock units granted on January 11, 2022 which will vest 25% on January 11, 2023 and 6.25% (approximately 1/16th of such shares) for each subsequent quarter that the executive remains employed or providing service to us, (ii) 30,000 restricted stock units granted on March 4, 2021 which will vest 25% on March 4, 2022 and 6.25% (approximately 1/16th of such shares) for each subsequent quarter that the executive remains employed or providing service to us, (iii) 9,552 restricted stock units granted on March 6, 2020 which will vest quarterly in equal installments ending March 15, 2024 for each subsequent quarter that the executive remains employed or providing service to us, and (iv) 22,900 restricted stock units granted on March 6, 2020, that became 50% vested on the second business day following the Compensation Committee's determination that the performance conditions have been achieved and 6.25% (approximately 1/16th of such shares) vesting on each subsequent quarter that the executive remains employed or providing service to us. (9)These restricted stock units were granted on March 6, 2020 and became 50% vested on the second business day following the Compensation Committee's determination that the performance conditions have been achieved, relating to the outcome of our affiliates.chronic sinusitis trials and 6.25% (approximately 1/16th of such shares) vesting on each subsequent quarter that the executive remains employed or providing service to us. (10)On January 31, 2023, Mr. Miller's employment with Optinose was terminated and we entered into a six-month Consulting Agreement with him. As part of the agreement, Mr. Miller's unvested equity awards will continue to vest through the term of the Consulting Agreement (July 31, 2023).
Pay versus Performance Table As required by Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act and Item 402(v) of Regulation S-K, we are providing the following information about the relationship between the SEC-defined Compensation Actually Paid ("CAP") to our named executive officers ("NEOs") and certain of our financial performance metrics during the fiscal years listed below. The table below presents information on the CAP to our principal executive officer ("PEO"), and to our other NEOs in comparison to certain performance metrics for the years ended December 31, 2022 and 2021. The SEC-defined CAP data set forth in the table below does not reflect amounts actually paid, earned or received by our NEOs, and the metrics are not those that the Compensation Committee uses when setting executive compensation. Per SEC rules, CAP is calculated by adjusting the Optinose - 2023 Proxy Statement | 37
Summary Compensation Table ("SCT") "Total" values for the applicable year as described in the footnotes to the table. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Year | | Summary Compensation Table Total for PEO (1) | | Compensation Actually Paid to PEO (1)(3) | | Average Summary Compensation Table Total for Non-PEO NEOs (2) | | Average Compensation Actually Paid to Non-PEO NEOs (2)(3) | | Value of Initial Fixed $100 Investment Based on Total Shareholder Return (TSR) | | Net Loss (in millions) | 2022 | | $ | 1,594,245 | | | $ | 2,583,233 | | | $ | 1,068,342 | | | $ | 1,520,026 | | | $ | 44.69 | | | $ | (74.8) | | 2021 | | $ | 2,262,372 | | | $ | (3,122) | | | $ | 1,044,736 | | | $ | 335,984 | | | $ | 39.13 | | | $ | (82.3) | |
(1)The PEO for both 2022 and 2021 was our former Chief Executive Officer, Peter K. Miller. (2)Non-PEO NEOs reflect the average Summary Compensation Table total compensation and average Compensation Actually Paid for Ramy A. Mahmoud, Victor M. Clavelli, Keith A. Goldan, and Michael F. Marino in 2021, and Ramy A. Mahmoud and Michael F. Marino in 2022. (3)Deductions from, and additions to, total compensation in the Summary Compensation Table by year to calculate CAP include: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2022 | | 2021 | | | PEO | | Average Non-PEO NEOs | | PEO | | Average Non-PEO NEOs | Total Compensation from Summary Compensation Table | | $ | 1,594,245 | | | $ | 1,068,342 | | | $ | 2,262,372 | | | $ | 1,044,736 | | | | | | | | | | | Adjustments for Equity Awards | | | | | | | | | Adjustment for grant date values in the Summary Compensation Table | | $ | (943,172) | | | $ | (400,432) | | | $ | (1,365,140) | | | $ | (451,189) | | Year-end fair value of unvested awards granted in the current year | | $ | 989,476 | | | $ | 431,653 | | | $ | 531,001 | | | $ | 175,500 | | Year-over-year difference of year-end fair values for unvested awards granted in prior years | | $ | 93,296 | | | $ | 35,792 | | | $ | (1,112,572) | | | $ | (342,040) | | Fair values at vest date for awards granted and vested in current year | | $ | 224,166 | | | $ | 151,813 | | | $ | — | | | $ | — | | Difference in fair values between prior year-end fair values and vest-date fair values for awards granted in prior years | | $ | 625,223 | | | $ | 232,857 | | | $ | (318,782) | | | $ | (91,023) | | Total Adjustments for Equity Awards | | $ | 988,989 | | | $ | 451,683 | | | $ | (2,265,493) | | | $ | (708,752) | | Compensation Actually Paid | | $ | 2,583,234 | | | $ | 1,520,025 | | | $ | (3,121) | | | $ | 335,984 | |
The following graphs illustrate the relationship during 2021-2022 of the CAP for our PEO and the average CAP for our other NEOs as calculated pursuant to SEC rules to (i) our total shareholder return (“TSR”) and (ii) our net loss (each as set forth in the table above). Note that we do not utilize TSR or net loss in our executive compensation program; however, we do utilize other performance measures to align executive compensation with the Company’s performance. See the “Executive Compensation - Elements of Compensation” section of this Proxy Statement for a description of the elements of compensation for our named executive officers, including a description of the performance-based cash bonus component of our executive's compensation, which is designed to provide appropriate incentives to our executives to achieve defined annual corporate goals and to reward our executives for individual achievement towards these goals. In addition, a significant portion of our executive's compensation is delivered through equity awards in the form of stock options and restricted stock units. These equity awards are intended to align the interests of our executives with shareholders and to incentive and reward executive's for stock price appreciation.
Optinose - 2023 Proxy Statement | 38
Optinose - 2023 Proxy Statement | 39
Non-Employee Director Compensation In connection withOur non-employee director compensation program was established based on the advice and input of our initial public offering in 2017, our Compensation Committee engagedindependent compensation consultant, Pearl Meyer, to, serve as its independent compensation consultant to provide recommendations for, among other matters, non-employee director compensation to enable us to attract and retain qualified directors. Periodically, our Compensation Committee engages Pearl Meyer reviewedto review our director compensation programsprogram and the practices of similarly situated public life science companies and developedto seek to align our director compensation level recommendations generally
Optinose - 2022 Proxy Statement | 34
aligned with the mid-point of compensation levels of such companies. Consistent with Pearl Meyer's recommendation, our Board of Directors adopted the
Our non-employee director compensation policy set forth below in connection with our initial public offering in October 2017. Non-Employee Director Compensation Policyfor 2022 is summarized below.
•an annual cash retainer of $70,000 for the chairman of our Board of Directors; •an annual cash retainer of $40,000 for the other members of our Board of Directors; •an additional cash retainer of $20,000 for the Audit Committee chair, $15,000 for the Compensation Committee chair and $10,000 for the Nominating and Corporate Governance Committee chair; •an additional cash retainer of $10,000 for members of the Audit Committee, $7,500 for members of the Compensation Committee and $5,000 for members of the Nominating and Corporate Governance Committee; •for new members of our Board of Directors, an initial grant of options to purchase 28,87964,000 shares of our common stock, of which 33% vests on the first anniversary of the director's appointment or election to our Board, and 2.777% (approximately 1/36th of such shares) vests on each subsequent full calendar month of continued service with us; and •for all other members of our Board of Directors continuing in office after our annual meeting of stockholders, an annual grant of options to purchase 14,43932,000 shares of our common stock which vests upon the earlier of (i) the first anniversary of the grant date or (ii) the date of our next annual meeting of stockholders, subject to continued service with us. In the fourth quarter of 2021, our Compensation Committee again engaged Pearl Meyer to review our non-employee director compensation policy applying the same methodology as discussed above. Based on this review, Pearl Meyer recommended an increase to the annual cash retainer payable to our non-employee directors and an increase in the annual and new director stock option grants to bring them in-line with our peer companies. The Board determined to forgo an increase to the annual retainer payable to directors in order to preserve cash. The Board did enact, effective as of January 1, 2022, Pearl Meyer's recommendation to increase the initial grant of stock options to new Board members to 64,000 and increase the annual grant of stock options to members of our Board continuing in office after our annual meeting of stockholders to 32,000.
Our directors are also entitled to reimbursement for reasonable travel and lodging expenses for attending Board and Committee meetings. Peter K. Miller, our former Chief Executive Officer and a former director, did not receive any compensation for his service as a member of our Board of Directors during 2021.2022. Mr. Miller's compensation for service as an employee for 20212022 is presented above in the "Executive Compensation - Summary Compensation Table" section of this Proxy Statement. The following table provides information regarding the compensation awarded to, earned by or paid to the non-employee members of our Board of Directors during the year ended December 31, 2021:2022: | Name | Name | | Fees Earned or Paid in Cash ($) | | Option Awards ($)(1)(4) | | All Other Compensation ($) | | Total ($) | Name | | Fees Earned or Paid in Cash ($) | | Option Awards ($)(1)(4) | | All Other Compensation ($) | | Total ($) | Joseph C. Scodari | Joseph C. Scodari | | 97,500 | | | 32,707 | | (2) | — | | | 130,207 | | Joseph C. Scodari | | 91,829 | | | 41,423 | | (2) | — | | | 133,252 | | Wilhelmus Groenhuysen | Wilhelmus Groenhuysen | | 57,500 | | | 32,707 | | (2) | — | | | 90,207 | | Wilhelmus Groenhuysen | | 57,500 | | | 41,423 | | (2) | — | | | 98,923 | | Sandra L. Helton | Sandra L. Helton | | 60,000 | | | 32,707 | | (2) | — | | | 92,707 | | Sandra L. Helton | | 60,000 | | | 41,423 | | (2) | — | | | 101,423 | | Catherine Owen | Catherine Owen | | 55,000 | | | 32,707 | | (2) | — | | | 87,707 | | Catherine Owen | | 55,000 | | | 41,423 | | (2) | — | | | 96,423 | | Tomas Heyman | Tomas Heyman | | 45,000 | | | 32,707 | | (2) | — | | | 77,707 | | Tomas Heyman | | 45,000 | | | 41,423 | | (2) | — | | | 86,423 | | Eric Bednarski | Eric Bednarski | | 2,301 | | | 30,587 | | (3) | — | | | 32,888 | | Eric Bednarski | | 43,890 | | | 41,423 | | (2) | — | | | 85,313 | | Kyle Dempsey | Kyle Dempsey | | 2,733 | | | 30,587 | | (3) | — | | | 33,320 | | Kyle Dempsey | | 47,500 | | | 41,423 | | (2) | — | | | 88,923 | | R. John Fletcher(5) | R. John Fletcher(5) | | — | | | — | | | — | | | — | | R. John Fletcher(5) | | 33,068 | | | 95,208 | | (3) | — | | | 128,276 | |
(1)The amounts in this column represent the full grant date fair value for awards granted during 2021,2022, all of which were in the form of stock options. The grant date fair value of the options was computed in accordance with ASC Topic 718, Compensation - Stock Compensation. These amounts do not necessarily correspond to the actual value that may be realized by the director in connection with such option awards. The assumptions made in valuing the option awards reported in this column are described in our audited consolidated financial statements (Note 3. Summary of Significant Accounting Policies - Stock-based compensation and Note 13,14, Optinose - 20222023 Proxy Statement | 3540
Stock-based Compensation) included in our Annual Report on Form 10-K for the year-ended December 31, 2021,2022, as filed with the SEC. (2)Options to purchase 14,43932,000 shares of common stock were granted on June 9, 20218, 2022 and vest in full upon the earlier of (i) June 9, 20228, 2023 or (ii) the date of our 20222023 annual meeting of stockholders, subject to continued service with us. (3)These optionsOptions to purchase 64,000 shares of common stock were granted on December 10, 2021April 26, 2022 and will vest 33%25% on the first anniversary of the grantvesting start date (December 10, 2022)(April 26, 2023), and 2.777%2.0833% (approximately 1/36th48th of such shares), for each subsequent full calendar month, ofsubject to continued service with us. (4)The following table shows the aggregate number of outstanding shares of common stock underlying outstanding options held by our non-employee directors as of December 31, 2021:2022: | | | | | | | | | Name | | Outstanding Option Awards | Joseph C. Scodari | | 101,074133,074 | | Wilhelmus Groenhuysen | | 86,635118,635 | | Sandra L. Helton | | 86,635118,635 | | Tomas Heyman | | 43,31875,318 | | Catherine Owen | | 43,31875,318 | | Eric Bednarski | | 28,87960,879 | | Kyle Dempsey | | 28,87960,879 | | R. John Fletcher(5) | | —64,000 | |
(5)Mr. Fletcher joined the Board effective April 26, 2022.
EQUITY COMPENSATION PLAN INFORMATION
The following table sets forth information regarding our equity compensation plans as of December 31, 2021:2022: | Plan category | Plan category | | Number of securities to be issued upon exercise of outstanding options, warrants and rights (a) | | | Weighted-average exercise price of outstanding options, warrants and rights (b) | | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) (c) | | Plan category | | Number of securities to be issued upon exercise of outstanding options, warrants and rights (a) | | | Weighted-average exercise price of outstanding options, warrants and rights (b) | | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) (c) | | Equity compensation plans approved by security holders | Equity compensation plans approved by security holders | | 9,650,889 | | (1) | | $ | 7.21 | | | 2,345,339 | | (2) | Equity compensation plans approved by security holders | | 10,179,146 | | (1) | | $ | 5.94 | | | 4,590,055 | | (2) | Equity compensation plans not approved by security holders | Equity compensation plans not approved by security holders | | 267,250 | | (3) | | $ | 3.65 | | | — | | Equity compensation plans not approved by security holders | | 662,584 | | (3) | | $ | 2.41 | | | — | | Total | Total | | 9,918,139 | | | $ | 7.12 | | | 2,345,339 | | | Total | | 10,841,730 | | | | | 4,590,055 | | |
_____________ (1)Represents shares of common stock issuable upon exercise of 7,725,2818,701,486 outstanding stock options and the vesting of 1,925,6081,477,660 restricted stock units under the 2010 Stock Incentive Plan. OurThe 2010 Stock Incentive Plan has been approved by our stockholders. (2)Consists of 1,856,8743,607,066 shares of common stock reserved for issuance under ourthe 2010 Stock Incentive Plan and 488,465982,989 shares of common stock reserved for issuance under our 2017 Employee Stock Purchase Plan (2017 ESPP). Our 2017 ESPP has been approved by our stockholders. The number of shares of our common stock authorized under the 2010 Stock Incentive Plan automatically increases on January 1st of each year until the expiration of the 2010 Stock Incentive Plan, in an amount equal to four percent of the total number of shares of our common stock outstanding on December 31st of the preceding calendar year, subject to the discretion of our Board of Directors or Compensation Committee to determine a lesser number of shares shall be added for such year. The number of shares of our common stock that may be issued pursuant to rights granted under the 2017 ESPP automatically increase on January 1st of each year until the expiration of the 2017 ESPP, in an amount equal to one percent of the total number of shares of our common stock outstanding on December 31st of the preceding calendar year, subject to the discretion of our Board of Directors or Compensation Committee to determine a lesser number of shares shall be added for such year. (3)Represents 233,500662,584 options and 33,750 restricted stock units granted pursuant to the NASDAQ inducement grant exception in accordance with Nasdaq Listing Rule 5635(c)(4).
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INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM Optinose - 2023 Proxy Statement | 41
Fees Paid to Independent Registered Public Accounting Firm
The following table sets forth all fees paid or accrued by us for professional services rendered by our independent registered public accounting firm, EY, during the years ended December 31, 20212022 and 2020:2021: | | | 2021 | | 2020 | | | 2022 | | 2021 | | | | | | | | | | | Audit Fees (1) | Audit Fees (1) | $ | 600,000 | | | $ | 581,000 | | | Audit Fees (1) | $ | 550,000 | | | $ | 600,000 | | | Audit-Related Fees (2) | Audit-Related Fees (2) | 110,000 | | | 57,800 | | | Audit-Related Fees (2) | 145,000 | | | 110,000 | | | | TOTAL | TOTAL | $ | 710,000 | | | $ | 638,800 | | | TOTAL | $ | 695,000 | | | $ | 710,000 | | |
_______________ (1)Audit Fees represent the aggregate fees billed for professional services rendered by our independent registered public accounting firm for the audit of our annual financial statements, review of financial statements included in our quarterly reports or services that are normally provided in connection with statutory and regulatory filings or engagements for those fiscal years. (2)Audit-Related Fees represent the aggregate fees billed for assurance and related professional services rendered by our independent registered public accounting firm that are reasonably related to the performance of the audit or review of our financial statements and are not reported under "Audit Fees" including the issuance of consents in connection with registration statement filings with the SEC and comfort letters in connection with securities offerings.
Pre-Approval Policies and Procedures
Our Audit Committee has established a policy that requires it, or the Chair of our Audit Committee pursuant to delegated authority, to pre-approve all services provided by our independent registered public accounting firm and the fees for such services. Our Audit Committee considers, among other things, the possible effect of the performance of such services on the firm's independence. The prior approval of our Audit Committee, or the Chair of our Audit Committee pursuant to delegated authority, was obtained for all services provided by EY in 20212022 and 20202021 and the fees for such services.
DELIVERY OF DOCUMENTS TO STOCKHOLDERS SHARING AN ADDRESS
We have adopted a procedure, approved by the SEC, called “householding.” Under this procedure, stockholders of record who have the same address and last name will receive only one copy of our Notice of Internet Availability ofthis Proxy Materials or, if requested,Statement and our proxy statement and Annual Report unless we are notified that one or more of these stockholders wishes to continue receiving individual copies. This procedure will reduce our printing costs and postage fees. If you are eligible for householding, but you and other stockholders of record with whom you share an address currently receive multiple copies of our Notice of Internet Availability ofthis Proxy Materials, or, if requested, our proxy statementStatement and Annual Report, or if you hold our stock in more than one account, and in either case you wish to receive only a single copy of each of these documents for your household, please contact our Corporate Secretary by mail, c/o OptiNose, Inc., 1020 Stony Hill Road, Suite 300, Yardley, Pennsylvania 19067 or by phone at (267) 364-3500. If you participate in householding and wish to receive a separate copycopies of our Notice of Internet Availability of Proxy Materials or, if requested, this Proxy Statement and our Annual Report, or if you do not wish to continue to participate in householding and prefer to receive separate copies of these documents in the future, please contact our Corporate Secretary as indicated above. If you are the beneficial owner of shares held in street name through a broker, bank or other intermediary, please contact your broker, bank or intermediary directly if you have questions, require additional copies of our Notice of Internet Availability of Proxy Materials, this Proxy Statement or our Annual Report or wish to receive a single copy of such materials in the future for all beneficial owners of shares of our common stock sharing an address.
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AVAILABILITY OF OUR 20212022 ANNUAL REPORT
Because we have elected to use the “Notice and Access” method of providing proxy materials to you via the Internet, and have mailed to you a Notice of Internet Availability of Proxy Materials directing you to where you can find these proxy materials on the Internet, this Proxy Statement and our Annual Report for the year ended December 31, 2021 have not been mailed to you.
A copy of our 20212022 Annual Report to Stockholders (consisting of our Annual Report on Form 10-K for the year ended December 31, 20212022 but excluding the exhibits to such Annual Report) will behas been made available or mailed concurrently with this Proxy Statement, without charge, to stockholders entitled to notice of and to vote at the Annual Meeting, to the extent requested by such stockholders. Requests for a copy of our 2021 Annual Report to Stockholders should be mailed to OptiNose, Inc., 1020 Stony Hill Road, Suite 300, Yardley, Pennsylvania 19067, Attention: Corporate Secretary.Meeting. We will provide copies of the exhibits to the Form 10-K upon request by eligible stockholders, provided that we may impose a reasonable fee for providing such exhibits, which is limited to our reasonable expenses. Requests for copies of such exhibits should be mailed to OptiNose, Inc., 1020 Stony Hill Road, Suite 300, Yardley, Pennsylvania 19067, Attention: Corporate Secretary.
STOCKHOLDER PROPOSALS AND DIRECTOR NOMINATIONS
If you wish to submit a proposal to be considered for inclusion in next year's proxy materials or nominate a director, your proposal must be in proper form according to SEC Regulation 14A, Rule 14a-8 and received by our Corporate Secretary no later than December 27, 2022.January 2, 2024, the date that is one hundred twenty (120) days prior to the first anniversary of the date this Proxy Statement was first released to stockholders. Proposals received after that date will not be included in the proxy materials we send out in connection with our 20232024 Annual Meeting of Stockholders. If a proposal is received before that date, the proxies that management solicits for the meeting may still exercise discretionary voting authority on the proposal under circumstances consistent with the proxy rules of the SEC. In addition, our Bylaws establish an advance notice procedure for nominations for election to our Board of Directors and other matters that stockholders wish to present for action at an annual meeting other than those to be included in our proxy statement. To be timely, stockholder notice of a nomination or a proposal must be delivered to or mailed and received by the Corporate Secretary at our principal offices not later than the close of business on March 10, 20232024 and no earlier than the close of business on February 8, 2023;9, 2024; provided, however, that in the event that the date of the 20232024 Annual Meeting of Stockholders is held more than thirty (30) days before or more than seventy (70) days after the anniversary date of the 20222023 Annual Meeting of Stockholders, notice by the stockholder to be timely must be delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to the 20232024 Annual Meeting of Stockholders and not later than the close of business on the later of the ninetieth (90th) day prior to the 20232024 Annual Meeting of Stockholders or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by us. All nominations and stockholder proposals should be sent to the attention of our Corporate Secretary, c/o OptiNose, Inc., 1020 Stony Hill Road, Suite 300, Yardley, Pennsylvania 19067. The notice of nomination or proposal also must comply with the content requirements for such notices set forth in our Bylaws. In addition to satisfying the foregoing advance notice requirements under our Bylaws, to comply with the universal proxy rules (once effective) under the Exchange Act, stockholder who intend to solicit proxies in support of director nominees other than the Company’s nominees must provide written notice that sets for the information required by Rule 14a-19 under the Exchange Act no later than April 9, 2023,2024, which is 60 days prior to the anniversary date of the 20222023 Annual Meeting of Stockholders.
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Your vote is important. Even if you plan to attend the Annual Meeting, we urge you to submit your proxy or voting instructions as soon as possible. By O | | | | | | | | | | | By Order of the Board of Directors of OPTINOSE, INC. | | | | | | | | | | Peter K. MillerRamy A. Mahmoud, M.D., M.P.H. | | | Chief Executive Officer | April 26, 2022May 1, 2023 | | | Yardley, Pennsylvania | | |
ANNEX A
CERTIFICATE OF AMENDMENT OF FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF OPTINOSE, INC.
OptiNose, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify as follows:
1. The name of the Corporation is OptiNose, Inc. The date of filing of its original Certificate of Incorporation with the Secretary of State was May 26, 2010 (the “Original Certificate”). The Original Certificate was amended in its entirety pursuant to a Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on June 4, 2010 (the “Restated Certificate”). The Restated Certificate was amended pursuant to a Certificate of Amendment of Restated Certificate filed with the Secretary of State of the State of Delaware on November 18, 2011 (the “First Amendment”), and a Certificate of Amendment of Restated Certificate filed with the Secretary of State of the State of Delaware on April 1, 2014 (the “Second Amendment”). The Restated Certificate, as amended by the First Amendment and Second Amendment, was further amended in its entirety pursuant to a Second Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on July 18, 2014 (the “Second Restated Certificate”). The Second Restated Certificate was further amended in its entirety pursuant to a Third Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on March 24, 2017 (the “Third Restated Certificate”). The Third Restated Certificate was further amended in its entirety pursuant to a Fourth Amended and Restated Certificate of Incorporation filed with the Secretary of the State of Delaware on October 17, 2017 (the “Fourth Restated Certificate”).
2. Article 4, Section 4.1 of the Fourth Restated Certificate is hereby amended by replacing the first paragraph thereof with the following:
4.1.Authorized Capital. The total number of shares of all classes of stock which the Corporation shall have authority to issue is 355,000,000 shares, consisting of (i) 350,000,000 shares of Common Stock, $0.001 par value per share (“Common Stock”), and (ii) 5,000,000 shares of Preferred Stock, $0.001 par value per share (“Preferred Stock”). Except as otherwise provided in any certificate of designations of any series of Preferred Stock, the number of authorized shares of Preferred Stock and Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) from time to time by the affirmative vote of the holders of at least a majority of the voting power of the Corporation’s then outstanding shares of stock entitled to vote thereon, voting together as a single class, irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately as a class or series shall be required therefor.
3. This Certificate of Amendment has been duly adopted by the Board of Directors and stockholders of the Corporation in accordance with Section 242 of the General Corporation Law of the State of Delaware.
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4. This Certificate of Amendment shall become effective upon its filing with the Secretary of State of the State of Delaware. [Signature page follows]
IN WITNESS WHEREOF, the Corporation has caused its duly authorized officer to execute this Certificate of Amendment on this ____ day of ___________, 202_.
| | | | | | | | | | OPTINOSE, INC. | | | | | By: | | | Name: | Ramy Mahmoud | | Title: | Chief Executive Officer |
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