UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
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Definitive
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Definitive
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Soliciting
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AZURRX BIOPHARMA, INC.
(Name
of Registrant as Specified in Its Charter)
_________________________________
(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant)
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AzurRx BioPharma, Inc.
760 Parkside Avenue
Downstate Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
Tel. (646) 699-7855
July
23, 2018
Dear
Stockholders of AzurRx BioPharma, Inc.:
You are cordially
invited to attend the 2018 Annual Meeting of Stockholders (the
“Annual
Meeting” or the “Meeting”) of AzurRx BioPharma,
Inc., which will be held at the Crown
Plaza Hotel located at 690 US Highway 46, Fairfield, New Jersey
07004, on August 27, 2018 at 9:00 AM, Eastern Daylight
Time.
Enclosed is our proxy statement that describes the matters to be
presented to stockholders at the Annual Meeting, as well as a proxy
card. Please give this information your careful attention. Whether
or not you attend the Annual Meeting, it is important that your
shares be represented and voted. You may submit your vote on the
Internet or by telephone. If you are a registered holder, that is,
stockholders who hold stock in their own names, you may also vote
by mail by completing, dating and signing the enclosed proxy card
and returning it in the enclosed, postage-paid envelope. If you
decide to attend the Annual Meeting, you will be able to vote in
person, even if you have previously submitted your proxy. Voting at
the Annual Meeting will supersede any votes previously
cast.
Our
Board of Directors has unanimously approved the proposals set forth
in the proxy statement and we recommend that you vote in favor of
each such proposal.
We look
forward to seeing you at the Annual Meeting.
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Sincerely,
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Johan M. (Thijs) Spoor
President, Chief Executive Officer and Director
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YOUR VOTE IS IMPORTANT
All stockholders are cordially invited to attend the Annual Meeting
in person. However, to ensure your representation at the Annual
Meeting, you are urged to vote by Internet, telephone or mail as
promptly as possible. Submitting your vote assures that a quorum
will be present at the Annual Meeting and will avoid the additional
expense of duplicate proxy solicitations. Any stockholder attending
the Annual Meeting may vote in person, even if he or she has
returned a proxy.
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AzurRx BioPharma, Inc.
760 Parkside Avenue
Downstate Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
Tel. (646) 699-7855
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held on August 27, 2018
Dear
Stockholders of AzurRx BioPharma, Inc.:
We are pleased to invite you to
attend the 2018 Annual Meeting of Stockholders (the
“Annual
Meeting” or
“Meeting”) of AzurRx BioPharma, Inc., a Delaware
corporation (the “Company,” “us,” “we,” or “our”), which will be held at
the Crown Plaza Hotel
located at 690 US Highway 46, Fairfield, New Jersey 07004, on
August 27, 2018 at 9:00 AM, Eastern Daylight
Time, for the following
purposes:
1.
to
elect six directors to our Board of Directors, each to serve until
our next annual meeting of stockholders, or until their respective
successor is elected and qualified;
2.
to
ratify
the appointment of Mazars USA LLP
(formerly, WeiserMazars), as our independent auditors for
the year ending December 31, 2018; and
3.
to
vote upon such other matters as may properly come before the Annual
Meeting or any adjournment or postponement of the Annual
Meeting.
These
matters are more fully discussed in the attached proxy
statement.
The
close of business on July 2, 2018 (the “Record Date”) has been fixed as
the Record Date for the determination of stockholders entitled to
notice of and to vote at the Annual Meeting or any adjournments or
postponements thereof. Only holders of record of our common stock
at the close of business on the Record Date are entitled to notice
of and to vote at the Annual Meeting. A complete list of these
stockholders will be available for examination by any of our
stockholders for purposes pertaining to the Annual Meeting at our
corporate offices, 760 Parkside Avenue, Downstate Biotechnology
Incubator, Suite 304, Brooklyn, New York 11226, during normal
business hours for a period of ten days prior to the
Annual Meeting, and at the Annual Meeting.
Whether or not you expect to attend in person,
we urge you to vote your shares as promptly as possible by
Internet, telephone or mail so that your shares may be represented
and voted at the Annual Meeting. If your shares are held in
the name of a bank, broker or other fiduciary, please follow the
instructions on the voting instruction card furnished by the record
holder.
Our
Board of Directors recommends that you vote “FOR” each
of the director nominees identified in Proposal No. 1 and
“FOR” Proposal No. 2. Each of these Proposals are
described in detail in the accompanying proxy
statement.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE ANNUAL
MEETING TO BE HELD ON AUGUST 27, 2018:
THE ANNUAL REPORT AND PROXY STATEMENT ARE AVAILABLE ONLINE AT:
http://www.colonialstock.com/AzurRx2018.com
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By
Order of the Board of Directors,
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Johan
M. (Thijs) Spoor
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President, Chief Executive Officer and Director
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Brooklyn,
New York
July
23, 2018
AzurRx BioPharma, Inc.
760 Parkside Avenue
Downstate Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
Tel. (646) 699-7855
PROXY STATEMENT
The enclosed proxy
is solicited on behalf of the Board of Directors
(“Board”) of
AzurRx BioPharma, Inc., a Delaware corporation (the
“Company”), for
use at the Company’s 2018 Annual Meeting of Stockholders (the
“Annual
Meeting” or the “Meeting”) to be held on August
27, 2018 at 9:00 AM Eastern Daylight Time, and at any adjournment
or postponement thereof, at the Crown
Plaza Hotel located at 690 US Highway 46, Fairfield, New Jersey
07004. This proxy statement, the enclosed proxy card
and a copy of our Annual Report on Form 10-K for the year ended
December 31, 2017 (the “Annual Report”) are first being
mailed to stockholders entitled to vote on or about July 23,
2018.
This
proxy statement and the Annual Report can also be accessed online
as of July 23, 2018 at:
http://www.colonialstock.com/AzurRx2018.
Voting
The
specific proposals to be considered and acted upon at our Annual
Meeting are each described in this proxy statement. Only
holders of our common stock as of the close of business on July 2,
2018 (the “Record
Date”) are entitled to notice of and to vote at the
Annual Meeting. On the Record Date, there were 16,792,395 shares of
common stock issued and outstanding. Each holder of common stock is
entitled to one vote for each share held as of the Record
Date.
Quorum
In
order for any business to be conducted at the Annual Meeting,
holders of more than 50% of the shares entitled to vote must be
represented at the Annual Meeting, either in person or by properly
executed proxy. If a quorum is not present at the scheduled time of
the Annual Meeting, the stockholders who are present, whether in
person or by proxy, may adjourn the Annual Meeting until a quorum
is present. The time and place of the adjourned Annual Meeting will
be announced at the time the adjournment is taken, and no other
notice will be given. An adjournment will have no effect on the
business that may be conducted at the Annual Meeting.
Required Vote for Approval
Proposal No. 1: Election of Directors.
The six director nominees who receive the greatest number of votes
cast at the Annual Meeting by the shares present, either in person
or by proxy and entitled to vote, will be elected.
Proposal No. 2: Ratification of Appointment of
Auditors. The affirmative “FOR” vote of a
majority of the shares present in person or by proxy at the Annual
Meeting and entitled to vote is required for the ratification of
the selection of Mazars USA LLP, formerly WeiserMazars
(“Mazars USA”),
as our independent registered public accounting firm for the
current fiscal year.
-1-
Abstentions and Broker Non-Votes
All
votes will be tabulated by the inspector of election appointed for
the Annual Meeting, who will separately tabulate affirmative and
negative votes, abstentions and broker non-votes. An abstention is
the voluntary act of not voting by a stockholder who is present at
a meeting and entitled to vote. A broker “non-vote”
occurs when a broker nominee holding shares for a beneficial owner
does not vote on a particular proposal because the nominee does not
have discretionary power for that particular item and has not
received instructions from the beneficial owner. If you hold your
shares in “street name” through a broker or other
nominee, your broker or nominee may not be permitted to exercise
voting discretion with respect to some of the matters to be acted
upon. If you do not give your broker or nominee specific
instructions regarding such matters, your proxy will be deemed a
“broker non-vote.”
As
noted above, the six director nominees identified under Proposal
No. 1 who receive the most votes at the Annual Meeting will be
elected, thus abstentions and broker non-votes will have no effect
on the outcome of Proposal No. 1.
Under
Delaware law and our Amended and Restated Bylaws, Proposal No. 2
will be determined by the vote of the holders of a majority of the
voting power present or represented by proxy at the Annual Meeting,
including votes cast as broker non-votes. For Proposal No. 2,
abstentions will not be counted as votes in favor of the matter and
will also not be counted as shares voting on such
matter.
Voting and Revocation of Proxies
If your
proxy is properly returned to the Company, the shares represented
thereby will be voted at the Annual Meeting in accordance with the
instructions specified thereon. If you return your proxy without
specifying how the shares represented thereby are to be voted, the
proxy will be voted (i) FOR the election of the six
director nominees named in this proxy statement,
(ii) FOR ratification of the appointment
of Mazars USA as our independent auditors for the current fiscal
year, and (iii) at the discretion of the proxy holders on any other
matter that may properly come before the Annual Meeting or any
adjournment or postponement thereof.
You may
revoke or change your proxy at any time before the Annual Meeting
by filing, with our Corporate Secretary at our principal executive
offices, located at 760 Parkside Avenue, Downstate Biotechnology
Incubator, Suite 304, Brooklyn, New York 11226, a notice of
revocation or another signed proxy with a later date. You may also
revoke your proxy by attending the Annual Meeting and voting in
person. Attendance at the Annual Meeting alone will not revoke
your proxy. If you are a stockholder whose shares are not
registered in your own name, you will need additional documentation
from your broker or record holder to vote personally at the Annual
Meeting.
No Appraisal Rights
The stockholders of the Company have no dissenter’s or
appraisal rights in connection with any of the proposals described
herein.
Solicitation
We will
bear the entire cost of solicitation, including the preparation,
assembly, printing and mailing of this proxy statement and the
Annual Report, as well as the preparation and posting of this proxy
statement, the Annual Report and any additional solicitation
materials furnished to the stockholders. Copies of any solicitation
materials will be furnished to brokerage houses, fiduciaries and
custodians holding shares in their names that are beneficially
owned by others so that they may forward this solicitation material
to such beneficial owners. In addition, we may reimburse such
persons for their costs in forwarding the solicitation materials to
such beneficial owners. The original solicitation of proxies may be
supplemented by a solicitation by telephone, e-mail or other means
by our directors, officers or employees. No additional compensation
will be paid to these individuals for any such services. Except as
described above, we do not presently intend to solicit proxies
other than by e-mail, telephone and mail.
-2-
MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
PROPOSAL NO. 1
ELECTION OF DIRECTORS
General
Our
Amended and Restated Bylaws provide that the Board of
Directors (“Board”)
shall consist of one or more members, and that upon any change in
the number of directors, any newly created directorships or
eliminated directorships will be apportioned by the remaining
members of the Board or by stockholders. The Company’s Board
currently consists of six directors, each of whom has been
nominated by the Nominating and Corporate Governance Committee for
election at the Annual Meeting. The six director nominees for
election at the Annual Meeting consist of: Johan M. (Thijs) Spoor,
Maged Shenouda, Edward J. Borkowski, Charles J. Casamento, Dr.
Alastair Riddell, and Dr. Vern Schramm.
Each
nominee has confirmed that he is able and willing to continue
serving as a director if elected. If any of the nominees becomes
unable or unwilling to serve, your proxy will be voted for the
election of a substitute nominee recommended by the current
Board.
Required Vote and Recommendation
The
election of directors requires the affirmative vote of a plurality
of the voting shares present in person or represented by proxy and
entitled to vote at the Annual Meeting. The six nominees receiving
the highest number of affirmative votes will be elected. Unless
otherwise instructed or unless authority to vote is withheld,
shares represented by executed proxies will be voted
“FOR” the election of the director nominees listed
above.
The
Board recommends that the stockholders vote “FOR” the election of
Messrs. Spoor, Shenouda, Borkowski, Casamento, and Drs. Riddell and
Schramm.
The
following section sets forth certain information regarding the
nominees for election as directors of the Company. There are no
family relationships between any of the directors and the
Company’s executive officers.
BOARD OF DIRECTORS
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Name
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Age
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Position
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Johan
M. (Thijs) Spoor
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46
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President,
Chief Executive Officer and Director
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Maged
Shenouda
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54
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Chief
Financial Officer and Director
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Edward
J. Borkowski (1)(2)
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59
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Board
Chair
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Alastair
Riddell, MSc., MDChB., DSc. (1)(2)
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69
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Director
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Charles
J. Casamento (2)
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73
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Director
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Vern
Lee Schramm, Ph.D.
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76
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Director
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(1)
Member of the
Compensation Committee and the Nominating and Corporate Governance
Committee.
(2)
Member of the
Audit Committee.
-3-
Johan M. (Thijs) Spoor has been our
Chief Executive Officer since January 2016, and our President since
April 2015. From September 2010 until December 2015, he was the
Chief Executive Officer of FluoroPharma Medical, Inc. (OTCQB:
FPMI), during which time he served as Chairman of the Board from
June 2012 until December 2015. From December 2008 until February
2010, he worked at Oliver Wyman as a consultant to pharmaceutical
and medical device companies. Mr. Spoor was an equity research
analyst at J.P. Morgan from July 2007 through October 2008 and at
Credit Suisse from November 2005 through July 2007, covering the
biotechnology and medical device industries. He holds a Pharmacy
degree from the University of Toronto as well as an MBA from
Columbia University.
We
believe that Mr. Spoor’s background in pharmacy, finance and
accounting, as a healthcare research analyst, and his experience at
both large and small healthcare companies provides him with a broad
familiarity of the range of issues confronting the Company, which
qualifies him to serve as a member of our Board of
Directors.
Maged
Shenouda joined our Board
of Directors in October 2015 and was appointed to serve as our
Chief Financial Officer in September 2017. Mr. Shenouda, a
financial professional in the biotechnology industry, was the head
of business development at Retrophin, Inc. from January 2014 until
November 2014. From January 2012 until September 2013, he served as
head of East coast operations for the Blueprint Life Science
Group. Prior thereto, Mr. Shenouda was a financial analyst, first
at UBS from January 2004 until March 2010 and later at Stifel
Nicolaus from June 2010 until November 2011. He currently serves on
the board of directors of Relmada Therapeutics, Inc. (OTCQB: RLMD).
Mr. Shenouda received an MBA from Rutgers Graduate School
of Management and BS in Pharmacy from St. John's College
of Pharmacy. He is a Registered Pharmacist in New Jersey and
California.
We
believe that Mr. Shenouda’s extensive knowledge of our
industry, his role in the governance of publicly held companies,
and his directorships in other life science companies qualify him
to serve as a member of our Board of Directors.
Edward Borkowski joined our Board
of Directors in May 2015, and is currently serving as Chairman of
the Board. Mr. Borkowski is a healthcare executive who currently
serves as Executive Vice President of MiMedx Group, Inc.
(NASDAQ: MDGX). In addition, Mr. Borkowski currently serves as a
director for Co-Diagnostics, Inc. (NASDAQ: CODX), a position he has
held since May 2017. Mr. Borkowski previously served as the Chief
Financial Officer of Aceto
Corporation (NASDAQ: ACET) from February 2018 to April 2018, and
held several executive level positions with
for Concordia
International, an international specialty pharmaceutical company,
from May
2015 to February 2018. Mr. Borkowski has
also served as Chief Financial Officer of Amerigen Pharmaceuticals,
a generic pharmaceutical company with a focus on oral, controlled
release products and as the Chief
Financial Officer and Executive Vice President of Mylan N.V. In
addition, Mr. Borkowski previously held the position of Chief
Financial Officer with Convatec, a global medical device company
focused on wound care and ostomy, and Carefusion, a global medical
device company for which he helped lead its spin-out from Cardinal
Health into an independent public company. Mr. Borkowski also held
senior financial positions at Pharmacia and American Home Products
(Wyeth). He started his career with Arthur Andersen & Co. after
graduating from Rutgers University with an MBA in accounting. Mr.
Borkowski also graduated from Allegheny College with a degree in
Economics and Political Science. Mr. Borkowski is currently a
Trustee and an executive committee member of Allegheny
College.
We
believe Mr. Borkowski’s extensive healthcare and financial
experience, together with his experience with public companies,
provide the Company and management with valuable experience as the
Company executes its business plan.
Dr.
Alastair Riddell joined
our Board of Directors in September 2015. Since June 2016, Dr.
Riddell has served as Chairman of Nemesis Biosciences Ltd and
Chairman of Feedback plc (LON: FDBK). Since January 2016 he has
also served as Chairman the South West Academic Health Science
network in the UK. Since December 2015 he has served as
Non-Executive Director of Cristal Therapeutics in The Netherlands.
From September 2012 to February 2016, he served as the Chairman of
Definigen Ltd. and has served as the Chairman Silence Therapeutics
Ltd. from November 2013 to September 2015 and Procure Therapeutics
from October 2009 to November 2012. From 2007 to 2009,
he served as the Chief Executive Officer of Stem Cell Sciences plc.
and from 2005 to 2007, he served as the Chief Executive Officer of
Paradigm Therapeutics Ltd. From 1998 to 2005, Dr. Riddell served as
the Chief Executive Officer of Pharmagene plc. Dr.
Ridell began his career as a
doctor in a variety of hospital specialties and in general
practice. Dr. Riddell holds both Bachelor of Science and a Bachelor
of Medical Sciences degrees, and was recently awarded a Doctorate
of Science, Honoris Causa by Aston University.
-4-
We
believe that Dr. Riddell’s background as a medical doctor
with experience in a variety of hospital specialties coupled with
his experience in the life sciences industry, directing all phases
of clinical trials, before moving to sales, marketing and general
management, makes him a qualified member of our board.
Charles J. Casamento joined our Board
of Directors in March 2017. Since 2007, Mr. Casamento has been
executive director and principal of The Sage Group, a health care
advisory group. He was president and CEO of Osteologix, a startup
company which he eventually took public, from October 2004 until
April 2007. Mr. Casamento was the founder of Questcor
Pharmaceuticals where he was president, CEO and chairman from 1999
through 2004. At Questcor he acquired Acthar, a product whose sales
eventually exceeded $1.0 billion. Mr. Casamento also served as
President, CEO and Chairman of RiboGene Inc. until 1999 when
RiboGene was merged another company to form Questcor. He was also
co-founder, president and CEO of Indevus (formerly Interneuron
Pharmaceuticals), has held senior management positions at Genzyme
Corporation, where he was Senior Vice President, American Hospital
Supply, where he was Vice President of Business Development for the
Critical Care division, Johnson & Johnson, Hoffmann-LaRoche and
Sandoz. He currently sits on the Boards of Directors of Relmada
Therapeutics (OTCQB: RLMD) and Eton Pharmaceuticals, and was
previously a director and vice-chairman of the Catholic Medical
Missions Board, a large not for profit international organization.
Mr. Casamento holds a bachelor's degree in Pharmacy from Fordham
University and an M.B.A. from Iona College.
We
believe that Mr. Casamento’s expertise and knowledge of the
financial community combined with his experience in the healthcare
sector qualify him to serve as a member of our Board.
Dr. Vern
Lee Schramm joined our
Board of Directors in October 2017. Dr. Schramm has served as
Professor of the Albert Einstein College of Medicine since 1987 and
Chairman of the Department of Biochemistry from 1987 to 2015, and
has been awarded the Ruth Merns Endowed Chair in Biochemistry.
His fields of interest include enzymatic transition state analysis,
transition state inhibitor design, biological targets for inhibitor
design, and mechanisms of N-ribosyltransferases. Dr. Schramm was
elected to the National Academy of Sciences in 2007, and served as
the Associate Editor for the Journal of the American
Chemical Society from 2003
to 2012. A frequent lecturer and presenter in topics related to
chemical biology, Dr. Schramm has been a consultant and advisor to
Pico Pharmaceuticals, Metabolon Inc., Sirtris Pharmaceuticals, and
BioCryst Pharmaceuticals. Dr. Schramm obtained his BS in
Bacteriology with an emphasis in chemistry from South Dakota State
College, a Master’s Degree in Nutrition with an emphasis in
biochemistry from Harvard University, a Ph.D. in Mechanism of
Enzyme Action from the Australian National University and
postdoctoral training at NASA Ames Research Center, Biological
Sciences, with a NSF-NRC fellowship.
We
believe that Dr. Schramm’s substantial experience in
biochemistry and knowledge of the chemistry related to non-systemic
biologics will assist the Board in developing its product
candidates.
Non-Executive Director Compensation
Each
of our non-executive directors are compensated at a rate of $35,000
per year, payable in cash or shares of common stock, for service on
the Board of Directors and the various Board committees, and
receive an annual grant of 30,000 shares of our common stock. In
addition, each non-executive director serving as a director at the
time of the Company’s initial public offering was granted a
one-time IPO-related payment of $30,000, which was accrued at
December 31, 2017.
The following table sets forth certain information
relating to the compensation for each of our directors, who is not
also an executive officer of the Company, for the year ended
December 31, 2017. Compensation for executive officers who are also
serving as directors is available in section titled
“Summary Compensation
Table” below.
-5-
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Name
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Fees Earned or Paid in Cash
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Stock Awards(1)
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Option Awards(2)
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All Other Compensation
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Total
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Edward
J. Borkowski
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$35,000
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$120,000
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$74,156
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$-
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$229,156
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Maged Shenouda (3)
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$115,000
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$90,000
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$74,156
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$-
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$279,156
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Alastair
Riddell
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$35,000
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$120,000
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$74,156
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$-
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$229,156
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Charles J. Casamento (4)
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$30,000
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$100,000
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$-
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$-
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$130,000
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Vern Schramm (5)
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$8,750
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$30,000
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$-
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$-
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$38,750
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(1)
Represent
the aggregate grant date fair value of shares of the
Company’s common stock issued to each of our non-employee
directors in 2017 as partial payment of fees payable for each
director’s service on the Board in 2017, calculated in
accordance with ASC Topic 718.
(2)
Represent
the aggregate grant date fair value of stock options issued to each
of our non-employee directors in 2017, calculated in accordance
with ASC Topic 718. As of December 31, 2017, Mr. Borkowski
held a total of 30,000 outstanding stock options, Mr. Shenouda held
a total of 130,000 outstanding stock options (including 100,000
options issued pursuant to his employment agreement) and Dr.
Riddell held a total of 30,000 outstanding stock
options.
(3)
This table reflects compensation earned by Mr.
Shenouda as a non-employee director of the Company from January 1,
2017 to September 26, 2017. On September 26, 2017 Mr. Shenouda was
appointed to serve as our Chief Financial Officer. For a summary of
the compensation Mr. Shenouda received as our Chief Financial
Officer during fiscal 2017, see the
“ Summary
Compensation Table”
above. In addition to the compensation Mr. Shenouda received
as a non-employee director and as Chief Financial Officer of the
Company, Mr. Shenouda received a total of $90,000 in 2017 for
services rendered to the Company as a financial consultant.
See “Certain Relationships and
Related Transactions”
below for more information about payments Mr. Shenouda received
from the Company as a financial
consultant.
(4)
Mr.
Casamento began serving on our Board of Directors on March 3,
2017.
(5)
Mr.
Schramm began serving on our Board of Directors on October 10,
2017.
Compensation Committee Interlocks and Insider
Participation
None
of our executive officers currently serves, or has served during
the last three years, on the compensation committee of any other
entity that has one or more officers serving as a member of our
Board of Directors.
Although
Mr. Shenouda was a member of the Company’s Compensation
Committee prior to his appointment as Chief Financial Officer, he
resigned from the Compensation Committee when he was appointed
Chief Financial Officer of the Company in October of 2017 in order
to comply with Compensation Committee independence
requirements.
Board Attendance at Board of Directors, Committee and Stockholder
Meetings
Our
Board met six times and acted by unanimous written consent four
times during the fiscal year ended December 31, 2017. Our
Audit Committee met eight times and our Compensation
Committee met one time, and our Compensation Committee
requested action by the entire Board of
Directors one time during the same period. Our
Nominating and Corporate Governance Committee
met one time during the fiscal year ended December 31,
2017. Each of our directors serving during fiscal 2017
attended at least 75% of the meetings of the Board of Directors and
the committees of the Board upon which such director served that
were held during the term of his service.
We
do not have a formal policy regarding attendance by members of the
Board of Directors at our annual meeting of stockholders, but
directors are encouraged to attend.
-6-
Director Independence
Our
Board of Directors has reviewed the independence of our directors
based on the listing standards of the Nasdaq Stock Market. Based on
this review, the Board of Directors determined that Messrs.
Borkowski and Casamento, and Drs. Riddell and Schramm, are
independent as defined in Rule 5605(a)(2) of the Nasdaq Stock
Market Rules. In making this determination, our Board of Directors
considered the relationships that each of these non-employee
directors has with us and all other facts and circumstances our
Board of Directors deemed relevant in determining their
independence.
Board Committees
Our
Board has established the following three standing committees:
Audit Committee, Compensation Committee, and Nominating and
Corporate Governance Committee. Our Board has adopted written
charters for each of these committees. Copies of the charters are
available on our website. Our Board may establish other committees
as it deems necessary or appropriate from time to
time.
Audit Committee
The
Audit Committee is responsible for, among other
matters:
●
appointing,
compensating, retaining, evaluating, terminating, and overseeing
our independent registered public accounting firm;
●
discussing with
our independent registered public accounting firm the independence
of its members from its management;
●
reviewing with
our independent registered public accounting firm the scope and
results of their audit;
●
approving all
audit and permissible non-audit services to be performed by our
independent registered public accounting firm;
●
overseeing the
financial reporting process and discussing with management and our
independent registered public accounting firm the interim and
annual financial statements that we file with the Securities and
Exchange Commission (“SEC ”);
●
reviewing and
monitoring our accounting principles, accounting policies,
financial and accounting controls, and compliance with legal and
regulatory requirements;
●
coordinating the
oversight by our Board of Directors of our code of business conduct
and our disclosure controls and procedures;
●
establishing
procedures for the confidential and/or anonymous submission of
concerns regarding accounting, internal controls or auditing
matters; and
●
reviewing and
approving related-person transactions.
Our
Audit Committee currently consists of Messrs. Borkowski and
Casamento, and Dr. Riddell, with Mr. Borkowski serving as the
Chairman. The rules of the Nasdaq Stock Market require our Audit
Committee to consist entirely of at least three directors, all of
whom must be deemed to be independent directors under the rules of
the Nasdaq stock market. Our Board has affirmatively determined
that Messrs. Borkowski and Casamento, and Dr. Riddell, each meet
the definition of “independent director” for purposes
of serving on an Audit Committee under the Nasdaq Stock Market
Rules. Our Board of Directors has determined that Messrs. Borkowski
and Casamento each qualify as an “audit committee financial
expert,” as such term is defined in Item 407(d)(5) of
Regulation S-K.
-7-
Compensation Committee
The
Compensation Committee is responsible for, among other
matters:
●
reviewing key
employee compensation goals, policies, plans and
programs;
●
reviewing and
approving the compensation of our directors and executive
officers;
●
reviewing and
approving employment agreements and other similar arrangements
between us and our executive officers; and
●
appointing and
overseeing any compensation consultants or advisors.
Our
Compensation Committee consists of Mr. Borkowski and Dr. Riddell,
with Dr. Riddell serving as the Chairman. The rules of the NASDAQ
stock market require our Compensation Committee to consist entirely
of independent directors. Our Board has affirmatively determined
that Mr. Borkowski and Dr. Riddell meet the definition of
“independent director” for purposes of serving on a
Compensation Committee under the rules of the NASDAQ Stock
Market.
Nominating and Corporate Governance Committee
The
purpose of the Nominating and Corporate Governance Committee is to
assist the Board in identifying qualified individuals to become
members of the Board, determining the composition of the Board, and
monitoring the activities of the Board to assess overall
effectiveness. In addition, the Nominating and Corporate
Governance Committee will be responsible for developing and
recommending to our Board corporate governance guidelines
applicable to the Company and advising our Board on corporate
governance matters. Our Nominating and Corporate Governance
Committee consists of Mr. Borkowski and Dr. Riddell, with Mr.
Borkowski serving as the Chairman.
Board Leadership Structure
Currently,
our principal executive officer is Johan M. (Thijs) Spoor and our
Chairman of the Board is Edward J. Borkowski. Our Board
of Directors has determined that it is in the best interests of the
Board and the Company to maintain separate the roles for the Chief
Executive Officer and Chairman of the Board. The Board believes
this structure increases the Board’s independence from
management and, in turn, leads to better monitoring and oversight
of management. Although the Board believes the Company is currently
best served by separating the role of Chairman of the Board and
Chief Executive Officer, the Board of Directors will
review and consider the continued appropriateness of this structure
on an annual basis.
Risk Oversight
Our
Board of Directors oversees a company-wide approach to
risk management, determines the appropriate risk level for us
generally, assesses the specific risks faced by us and reviews the
steps taken by management to manage those risks. Although our Board
of Directors has ultimate oversight responsibility for the risk
management process, its committees oversee risk in certain
specified areas.
Specifically,
our Compensation Committee is responsible for overseeing the
management of risks relating to our executive compensation plans
and arrangements, and the incentives created by the compensation
awards it administers. Our Audit Committee oversees management of
enterprise risks and financial risks, as well as potential
conflicts of interests. Our Board of Directors will be
responsible for overseeing the management of risks associated with
the independence of our Board.
Code of Business Conduct and Ethics
Our
Board of Directors adopted a code of business conduct and ethics
that applies to our directors, officers and employees. A copy of
this code is available on our website. We intend to disclose on our
website any amendments to the Code of Business Conduct and Ethics
and any waivers of the Code of Business Conduct and Ethics that
apply to our principal executive officer, principal financial
officer, principal accounting officer, controller, or persons
performing similar functions.
-8-
Director Nomination Process
The
Nominating and Corporate Governance Committee identifies director
nominees by first considering those current members of the Board
who are willing to continue service. Current members of the Board
with skills and experience that are relevant to our business and
who are willing to continue service are considered for
re-nomination, balancing the value of continuity of service by
existing members of the Board with that of obtaining a new
perspective. Nominees for director are selected by a majority of
the members of the Board. Although the Company does not have a
formal diversity policy, in considering the suitability of director
nominees, the Nominating and Corporate Governance Committee
considers such factors as it deems appropriate to develop a Board
and committees that are diverse in nature and comprised of
experienced and seasoned advisors. Factors considered by the
Nominating and Corporate Governance Committee include judgment,
knowledge, skill, diversity, integrity, experience with businesses
and other organizations of comparable size, including experience in
the biopharma industry, clinical studies, U.S. Food and Drug
Administration
(“FDA”)
compliance, intellectual property, business, finance,
administration or public service, the relevance of a
candidate’s experience to our needs and experience of other
Board members, experience with accounting rules and practices, the
desire to balance the considerable benefit of continuity with the
periodic injection of the fresh perspective provided by new
members, and the extent to which a candidate would be a desirable
addition to the Board and any committees of the Board.
The
Nominating and Corporate Governance Committee and the Board may
consider suggestions for persons to be nominated for director that
are submitted by stockholders. The Nominating and Corporate
Governance Committee will evaluate stockholder suggestions for
director nominees in the same manner as it evaluates suggestions
for director nominees made by management, then-current directors or
other appropriate sources.
Section 16(a) Beneficial Ownership Reporting
Compliances
Section 16(a) of the Securities Exchange Act of
1934, as amended (the “Exchange
Act”) requires our
officers, directors, and persons who beneficially own more than 10%
of our common stock to file reports of ownership and changes in
ownership with the SEC. Officers, directors, and
greater-than-ten-percent shareholders are also required by the SEC
to furnish us with copies of all Section 16(a) forms that they
file.
Based
solely upon a review of these forms that were furnished to us, we
believe that all reports required to be filed by these individuals
and persons under Section 16(a) were filed during the year ended
December 31, 2017 and that such filings were timely, except
for the inadvertent failure by one of our 10% stockholders to
timely file a Form 4 following the completion of certain
transactions on June 5, 2017.
Stockholder Communications
If you
wish to communicate with the Board of Directors, you may send your
communication in writing to:
AzurRx
BioPharma, Inc.
760
Parkside Avenue
Downstate
Biotechnology Incubator, Suite 304
Brooklyn,
New York 11226
Attn:
Corporate Secretary
You
must include your name and address in the written communication and
indicate whether you are a stockholder of the Company. The
Secretary will review any communication received from a
stockholder, and all material and appropriate communications from
stockholders will be forwarded to the appropriate director or
directors or committee of the Board of Directors based on the
subject matter.
-9-
EXECUTIVE OFFICERS AND EXECUTIVE COMPENSATION
Executive Officers
The
Company’s executive officers are appointed by the Board of
Directors and serve at the discretion of the Board, subject to the
terms of any employment agreements they may have with the Company.
The following is a brief description of the present and past
business experience of each of the Company’s current
executive officers.
|
Name
|
Age
|
Position
|
|
Johan
M. (Thijs) Spoor
|
46
|
President,
Chief Executive Officer and Director
|
|
Maged
Shenouda
|
54
|
Chief
Financial Officer and Director
|
|
Daniel
Dupret
|
61
|
Chief
Scientific Officer
|
|
Dr.
James E. Pennington
|
75
|
Chief
Medical Officer
|
Johan M (Thijs)
Spoor. Please see Mr. Spoor’s biography on page 3
of this proxy
statement, under the section titled “Directors.”
Maged Shenouda.
Please see Mr. Shenouda’s biography on page 3 of this proxy statement, under
the section titled “Directors.”
Daniel Dupret has served as
President of AzurRx SAS since its formation in 2007, and as our
Chief Scientific Officer since the acquisition of AzurRx SAS in
June 2014. Previously, Dr. Dupret founded Proteus SA in 1998 and
served as its President and Chief Executive Officer from 1998 to
2007. He founded Appligene SA in 1985 and served as its Chief
Scientific Officer, then President and Chief Executive Officer
until 1998. From 1982 to 1985, he served as project leader at
Transgene SA. In parallel to his biotechnology career, Daniel
Dupret served as an advisor for the French government and the
European commission in connection with grant commission and funding
of early-stage biotechnology companies. From 2003 to 2007, he
served as President of the Board of the University of
Nîmes.
Dr. James E.
Pennington has served as our Chief Medical Officer since May
2018. Prior to joining the Company,
Dr. Pennington served as Senior Clinical Fellow from 2010 to 2018
and Executive Vice President and Chief Medical Officer from 2007 to
2010 at Anthera Pharmaceuticals, Inc. (NASDAQ: ANTH). From 2004 to
2007, Dr. Pennington served as Executive Vice President and Chief
Medical Officer at CoTherix, Inc., and has served in various
executive positions at a number of other pharmaceutical companies,
including InterMune Inc., Shaman Pharmaceuticals and Bayer
Corporation. In addition, Dr. Pennington has sat on several
editorial boards, and has authored numerous original research
publications and reviews. Dr. Pennington is currently a Clinical
Professor of Medicine with the University of California San
Francisco, where he has taught since 1986. Prior to that, he was a
professor at Harvard Medical School. Dr. Pennington received a
Bachelor of Arts from the University of Oregon and a Doctor of
Medicine from the University of Oregon School of Medicine, and is
Board Certified in internal medicine and infectious
diseases.
-10-
Summary Compensation Table
The following table provides information regarding the compensation
paid during the years ended December 31, 2017 and 2016 to our
principal executive officer, principal financial officer and
certain of our other executive officers, who are collectively
referred to as “named executive officers” elsewhere in
this proxy statement.
|
Name
and Principal Position (1)
|
Year
|
Salary
|
Bonus
|
Equity
Awards
|
|
All
Other
Compensation
|
Total
|
|
Johan
M. (Thijs) Spoor
|
2017
|
$454,167
|
$170,000
|
$386,900
|
(2)
|
$-
|
$1,011,067
|
|
President and Chief
Executive Officer
|
2016
|
$336,458
|
$-
|
$210,000
|
|
$-
|
$546,458
|
|
|
|
|
|
|
|
|
|
|
Maged
Shenouda
|
2017
|
$91,667
|
$-
|
$336,500
|
(2)
|
$-
|
$428,167
|
|
Chief Financial
Officer (3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel
Dupret
|
2017
|
$208,673
|
$-
|
$213,000
|
(2)
|
$-
|
$421,6733
|
|
Chief Scientific
Officer
|
2016
|
$204,215
|
$-
|
$-
|
|
$-
|
$204,215
|
|
(1)
|
No compensation is reported for Dr. Pennington in 2016 or 2017 and
he has been excluded from the table. Dr. Pennington was appointed
to serve as the Company’s Chief Medical Officer in May
2018.
|
|
|
|
|
(2)
|
Represents the grant date fair value of stock options issued during
the year ended December 31, 2017, calculated in accordance with ASC
Topic 718. The assumptions used in the calculation of these amounts
are included in Note 13 of the notes to the consolidated financial
statements contained in the Company’s Annual Report on Form
10-K for the year ended December 31, 2017, filed with the
Securities and Exchange Commission on March 16, 2018.
The stock options issued to Mr. Spoor in 2017 are fully vested. The
stock options issued to Messrs. Shenouda and Dupret are currently
unvested and are scheduled to vest upon achievement of certain
performance criteria. The Company is unable to determine the
probability of achieving the performance criteria associated with
the stock options and instead has reported the grant date fair
value of the stock options assuming the maximum award amount is
achieved.
|
|
(3)
|
No compensation is reported for Mr. Shenouda in 2016 as he was
appointed to serve as the Company’s Chief Financial Officer
on September 26, 2017. He did not receive any compensation in 2016
for an executive role.
For compensation paid to Mr. Shenouda in 2017 prior to his
appointment as the Company’s Chief Financial Officer, see the
section titled “Non-Employee Director
Compensation”
above.
|
Overview of Our Fiscal 2017 and 2016 Executive
Compensation
Elements of Compensation
Our
executive compensation program consisted of the following
components of compensation in 2017 and 2016:
Base Salary. Each named executive officer receives a base
salary commensurate with their respective expertise, skills,
knowledge and experience offered to our management team. Base
salaries are periodically adjusted to reflect:
●
the nature, responsibilities, and duties of the
officer’s position;
●
the officer’s expertise, demonstrated
leadership ability, and prior performance;
●
the
officer’s salary history and total compensation, including
annual cash incentive awards and annual equity incentive awards;
and
●
the competitiveness of the officer’s base
salary.
-11-
Each
named executive officer’s base salary for fiscal 2017 and
2016 is listed under the heading “Salary” in the Summary
Compensation Table above.
Employment Agreements and Potential Payments upon Termination or
Change of Control
Johan M. (Thijs) Spoor
Effective
as of January 1, 2016, we entered into an employment agreement with
Mr. Spoor to serve as our President and Chief Executive Officer for
a term of three years. The employment agreement with Mr. Spoor
provides for a base annual salary of $350,000, which annual salary
was increased to $425,000 upon completion of our initial public
offering and listing of our common stock on the Nasdaq Stock Market
in October 2016. In addition to his salary, Mr. Spoor is eligible
to receive an annual milestone bonus, awarded at the sole
discretion of the Board based on his attainment of certain
financial, clinical development, and/or business milestones
established annually by our Board or Compensation
Committee. The employment agreement is terminable by either
party at any time. In the event of termination by us without Cause
or by Mr. Spoor for Good Reason not in connection with a Change of
Control, as those terms are defined in the agreement, he is
entitled to twelve months’ severance payable over such
period. In the event of termination by us without Cause or by Mr.
Spoor for Good Reason in connection with a Change of Control, as
those terms are defined in the agreement, he will receive eighteen
months’ worth of his base salary in a lump sum as
severance.
Per his employment agreement, Mr. Spoor was
granted 100,000 shares of restricted common stock on February 3,
2017, which shares will only vest as follows: (i) 50,000 upon the
first commercial sale in the United States of MS1819, and (ii)
50,000 upon our total market capitalization exceeding $1.0 billion
for 20 consecutive trading days, in each case subject to the
earlier determination of a majority of the Board. In addition, Mr.
Spoor is entitled to receive stock options issuable under the terms
of the Amended and Restated 2014 Omnibus Equity Incentive Plan (the
“2014 Plan”) to purchase 380,000 shares of common
stock at a price per share equal to the closing price of the
Company’s common stock on the trading day immediately prior
to the date of issuance.
On
June 8, 2016, the Board of Directors reviewed and modified Mr.
Spoor’s agreement as follows: the 380,000 stock options
described in the agreement had neither been granted nor priced
since certain key provisions, particularly the underlying exercise
price, had not been determined. The Board determined that the
options will be granted at a future date, at the discretion of the
Board, and priced at that future date when they are granted. In the
first quarter of 2017, the Board elected to issue 100,000 stock
options to Mr. Spoor with an exercise price of $4.48 per share. On
September 29, 2017, Mr. Spoor was granted 100,000 shares of
restricted common stock subject to vesting conditions as follows:
(i) 75% upon FDA acceptance of a U.S. Investigational New
Drug
“IND” application for MS1819, and
(ii) 25% upon the Company completing a Phase IIa clinical trial for
MS1819, in satisfaction of the Company’s obligation to issue
the additional 280,000 options to Mr. Spoor described above, with
an estimated fair value at the grant date of $425,000 to be
expensed when the Company determines that achievement of the
milestones are probable.
In
addition to the stock awards Mr. Spoor received in 2017, the Board
approved a 2016 annual incentive bonus equal to 40% of Mr.
Spoor’s current base salary pursuant to his employment
agreement in the amount of $170,000.
-12-
Maged Shenouda
Pursuant
to the employment agreement entered into by the Company and Mr.
Shenouda on September 26, 2017, Mr. Shenouda currently serves as
the Company’s Executive Vice-President of Corporate
Development and Chief Financial Officer for a term of three years,
during which time he receives a base salary of $275,000, which
amount may be increased by the Company at any time during the term
of the agreement. In addition to the base salary, Mr. Shenouda is
eligible to receive an annual milestone cash bonus based on the
achievement of certain financial, clinical development, and/or
business milestones, which milestones will be established annually
by the Company’s Board or the Compensation Committee. Upon
execution of Mr. Shenouda’s employment agreement, Mr.
Shenouda became entitled to receive options to purchase 100,000
shares of the Company’s common stock pursuant to the
Company’s 2014 Plan, which options will vest as follows so
long as Mr. Shenouda is serving as either Executive
Vice-President of Corporate Development or as Chief Financial
Officer: (i) 75% upon acceptance of a US IND for MS1819, and (ii)
25% upon the completion of a Phase IIa clinical trial for MS1819.
These stock options are exercisable for $4.39 per share and will
expire on September 25, 2027.
The
Company may terminate Mr. Shenouda’s employment agreement at
any time, with or without Cause, as such term is defined in the
agreement. If the Company terminates the agreement without Cause,
or if the agreement is terminated due to a Change of Control, as
such term is defined in the agreement, Mr. Shenouda will be
entitled to (i) all salary owed through the date of termination;
(ii) any unpaid annual milestone bonus; (iii) severance in the
form of continuation of his salary for the greater of a period of
12 months following the termination date or the remaining term of
the employment agreement; (iv) payment of premiums to cover COBRA
for a period of 12 months following the termination date; (v) a
prorated annual bonus equal to the target annual milestone bonus,
if any, for the year of termination multiplied by the formula set
forth in the agreement; and (vi) immediate accelerated vesting of
any unvested options or other unvested awards.
Daniel Dupret
If
we terminate Dr. Dupret’s employment other than for cause, we
will pay him twelve months of his base salary as
severance.
-13-
Outstanding Equity Incentive Awards at Fiscal Year-End
The
following table sets forth information regarding unexercised
options, stock that has not vested and equity incentive awards held
by each of the Named Executive Officers outstanding as of
December 31, 2017:
|
|
|
Option
Awards
|
Stock Awards
|
||||||
|
Name
|
Grant Date
|
Number of securities underlying unexercised options (#)
exercisable
|
Equity incentive plan awards: Number of underlying unexercised
unearned options (#)
|
Option
exercise price
($)
|
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
($)
|
Equity incentive plan awards: Number of Unearned shares, units or
other rights that have not vested (#)
|
Equity incentive plan awards: Market or Payout value of unearned
shares, units or other rights that have not vested ($)
|
|
Johan
(Thijs) Spoor
|
1/4/2016(1)
|
100,000
|
-
|
$1.00
|
1/4/2021
|
-
|
-
|
-
|
$-
|
|
|
2/3/2017
|
100,000
|
-
|
$4.48
|
2/3/2027
|
-
|
-
|
-
|
$-
|
|
|
2/3/2017(2)
|
-
|
-
|
$-
|
|
-
|
-
|
100,000
|
$364,000
|
|
|
9/29/2017(3)
|
-
|
-
|
$-
|
|
100,000
|
$364,000
|
-
|
$-
|
|
|
|
|
|
|
|
|
|
|
|
|
Maged
Shenouda
|
9/26/2017(4)
|
-
|
100,000(4)
|
$4.39
|
9/24/2027
|
-
|
-
|
-
|
$-
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel
Dupret
|
8/24/2017(5)
|
-
|
100,000(5)
|
$3.60
|
8/23/2022
|
-
|
-
|
-
|
$-
|
(1)
Represents
options to purchase shares of the Company’s common stock
issued to Mr. Spoor by a third party, prior to the Company’s
initial public offering in October 2016.
(2)
Represents
the restricted stock award issued to Mr. Spoor on February 3, 2017
under the terms of his employment agreement, which shares will only
vest as follows: (i) 50,000 upon the first commercial sale in the
United States of MS1819, and (ii) 50,000 upon our total market
capitalization exceeding $1.0 billion for 20 consecutive trading
days.
The
value reported for this award was calculated using the closing
price of the Company’s common stock on December 29, 2017, as
reported by the Nasdaq Capital Market, assuming achievement if the
maximum award amount.
(3)
Represents
the restricted stock award issued to Mr. Spoor on September 29,
2017, which award was issued in satisfaction of the Company’s
obligation to issue an additional 280,000 options under Mr.
Spoor’s employment agreement and is subject to the following
vesting conditions: (i) 75% upon FDA acceptance of a U.S. IND
application for MS1819, and (ii) 25% upon the Company completing a
Phase IIa clinical trial for MS1819.
The
value reported for this award was calculated using the closing
price of the Company’s common stock on December 29, 2017, as
reported by the Nasdaq Capital Market, assuming achievement if the
maximum award amount.
(4)
Represents
stock options issued to Mr. Shenouda on September 26, 2017, which
options are subject to the following vesting schedule so long as
Mr. Shenouda is serving as either Executive Vice-President of
Corporate Development or as Chief Financial Officer of the Company:
(i) 75% upon FDA acceptance of a U.S. IND application for MS1819,
and (ii) 25% upon the Company completing a Phase IIa clinical trial
for MS1819.
(5)
Represents
stock options issued to Mr. Dupret on August 24, 2017, which
options are subject to the following vesting schedule so long as
Mr. Dupret is serving as the Company’s Chief Scientific
Officer: (i) 75% upon FDA acceptance of a U.S. IND application for
MS1819, and (ii) 25% upon the Company completing a Phase IIa
clinical trial for MS1819.
-14-
Securities Authorized for Issuance Under Equity Compensation
Plans
The
following table provides information as of December 31, 2017
regarding equity compensation plans approved by our security
holders and equity compensation plans that have not been approved
by our security holders:
|
Plan category
|
Number
of securities to be issued upon exercise of outstanding options,
warrants and rights
|
Weighted-average exercise price of outstanding options,
warrants and rights
|
Number of securities remaining available for future issuance under
equity compensation plans (excluding securities reflected in column
(a))
|
|
|
(a)
|
(b)
|
(c)
|
|
Equity
compensation plans approved by security holders
|
545,000
|
$4.05
|
963,553
|
|
|
|
|
|
|
Equity
compensation plans not approved by security holders
|
-
|
-
|
-
|
|
|
|
|
|
|
Total
|
545,000
|
$4.05
|
963,553
|
Amended and Restated 2014 Omnibus Equity Incentive
Plan
Our
Board and stockholders have adopted and approved the 2014 Plan,
which is a comprehensive incentive compensation plan under which we
can grant equity-based and other incentive awards to our officers,
employees, directors, consultants and advisers. The purpose of the
2014 Plan is to help us attract, motivate and retain such persons
with awards under the 2014 Plan and thereby enhance stockholder
value.
Administration. The 2014 Plan is
administered by the Compensation Committee of the Board, which
consists of two members of the Board, each of whom is a
“non-employee director” within the meaning of Rule
16b-3 promulgated under the Exchange Act and an “outside
director” within the meaning of Section 162(m) of the
Internal Revenue Code (the “Code”). Among other things, the
Compensation Committee has complete discretion, subject to the
express limits of the 2014 Plan, to determine the directors,
employees and nonemployee consultants to be granted an award, the
type of award to be granted the terms and conditions of the award,
the form of payment to be made and/or the number of shares of
common stock subject to each award, the exercise price of each
option and base price of each stock appreciation right
(“SAR”), the
term of each award, the vesting schedule for an award, whether to
accelerate vesting, the value of the common stock underlying the
award, and the required withholding, if any. The Compensation
Committee may amend, modify or terminate any outstanding award,
provided that the participant’s consent to such action is
required if the action would impair the participant’s rights
or entitlements with respect to that award. The Compensation
Committee is also authorized to construe the award agreements, and
may prescribe rules relating to the 2014 Plan. Notwithstanding the
foregoing, the Compensation Committee does not have any authority
to grant or modify an award under the 2014 Plan with terms or
conditions that would cause the grant, vesting or exercise thereof
to be considered nonqualified “deferred compensation”
subject to Code Section 409A.
-15-
Grant of Awards; Shares Available for
Awards. The 2014 Plan provides for the grant of stock
options, SARs, performance share awards, performance unit awards,
distribution equivalent right awards, restricted stock awards,
restricted stock unit awards and unrestricted stock awards to
non-employee directors, officers, employees and nonemployee
consultants of the Company or its affiliates. The aggregate number
of shares of common stock that may be issued under the 2014 Plan
shall not exceed 10% of the issued and outstanding shares of common
stock on an as converted basis (the “As Converted Shares”), on a
rolling basis. For calculation purposes, the As Converted Shares
shall include all shares of common stock and all shares of common
stock issuable upon the conversion of outstanding preferred stock
and other convertible securities, but shall not include any shares
of common stock issuable upon the exercise of options, warrants and
other convertible securities issued pursuant to the 2014 Plan. The
number of authorized shares of common stock reserved for issuance
under the 2014 Plan shall automatically be increased concurrently
with our issuance of fully paid and non-assessable shares of As
Converted Shares. Shares shall be deemed to have been
issued under the 2014 Plan solely to the extent actually issued and
delivered pursuant to an award. If any award expires, is cancelled,
or terminates unexercised or is forfeited, the number of shares
subject thereto is again available for grant under the 2014
Plan.
The
number of shares of common stock for which awards may be granted
under the 2014 Plan to a participant who is an employee in any
calendar year is limited to 300,000 shares. Future new hires and
additional non-employee directors and/or consultants would be
eligible to participate in the 2014 Plan as well. The number of
stock options and/or shares of restricted stock to be granted to
executives and directors cannot be determined at this time as the
grant of stock options and/or shares of restricted stock is
dependent upon various factors such as hiring requirements and job
performance.
Stock Options. The 2014 Plan provides
for either “incentive stock options”
(“ISOs”), which
are intended to meet the requirements for special federal income
tax treatment under the Code, or “nonqualified stock
options” (“NQSOs”). Stock options may be
granted on such terms and conditions as the Compensation Committee
may determine; provided,
however, that the per share exercise price under a stock
option may not be less than the fair market value of a share of
common stock on the date of grant and the term of the stock option
may not exceed 10 years (110% of such value and five years in the
case of an ISO granted to an employee who owns (or is deemed to
own) more than 10% of the total combined voting power of all
classes of the Company’s capital stock or a parent or
subsidiary of the Company). ISOs may only be granted to employees.
In addition, the aggregate fair market value of common stock
covered by one or more ISOs (determined at the time of grant),
which are exercisable for the first time by an employee during any
calendar year may not exceed $100,000. Any excess is treated as a
NQSO.
Stock Appreciation Rights. A SAR
entitles the participant, upon exercise, to receive an amount, in
cash or stock or a combination thereof, equal to the increase in
the fair market value of the underlying common stock between the
date of grant and the date of exercise. SARs may be granted in
tandem with, or independently of, stock options granted under the
2014 Plan. A SAR granted in tandem with a stock option (i) is
exercisable only at such times, and to the extent, that the related
stock option is exercisable in accordance with the procedure for
exercise of the related stock option; (ii) terminates upon
termination or exercise of the related stock option (likewise, the
common stock option granted in tandem with a SAR terminates upon
exercise of the SAR); (iii) is transferable only with the related
stock option; and (iv) if the related stock option is an ISO, may
be exercised only when the value of the stock subject to the stock
option exceeds the exercise price of the stock option. A SAR that
is not granted in tandem with a stock option is exercisable at such
times as the Compensation Committee may specify.
Performance Shares and Performance Unit
Awards. Performance share and performance unit awards
entitle the participant to receive cash or shares of common stock
upon the attainment of specified performance goals. In the case of
performance units, the right to acquire the units is denominated in
cash values.
Distribution Equivalent Right Awards. A
distribution equivalent right award entitles the participant to
receive bookkeeping credits, cash payments and/or common stock
distributions equal in amount to the distributions that would have
been made to the participant had the participant held a specified
number of shares of common stock during the period the participant
held the distribution equivalent right. A distribution equivalent
right may be awarded as a component of another award under the 2014
Plan, where, if so awarded, such distribution equivalent right will
expire or be forfeited by the participant under the same conditions
as under such other award.
-16-
Restricted Stock Awards and Restricted Stock
Unit Awards. A restricted stock award is a grant or sale of
common stock to the participant, subject to our right to repurchase
all or part of the shares at their purchase price (or to require
forfeiture of such shares if issued to the participant at no cost)
in the event that conditions specified by the Compensation
Committee in the award are not satisfied prior to the end of the
time period during which the shares subject to the award may be
repurchased by or forfeited to us. Our restricted stock unit
entitles the participant to receive a cash payment equal to the
fair market value of a share of common stock for each restricted
stock unit subject to such restricted stock unit award, if the
participant satisfies the applicable vesting
requirement.
Unrestricted Stock Awards. An
unrestricted stock award is a grant or sale of shares of our common
stock to the participant that is not subject to transfer,
forfeiture or other restrictions, in consideration for past
services rendered to the Company or an affiliate or for other valid
consideration.
Change-in-Control Provisions. In
connection with the grant of an award, the Compensation Committee
may provide that, in the event of a change in control, such award
will become fully vested and immediately exercisable.
Amendment and Termination. The
Compensation Committee may adopt, amend and rescind rules relating
to the administration of the 2014 Plan, and amend, suspend or
terminate the 2014 Plan, but no such amendment or termination will
be made that materially and adversely impairs the rights of any
participant with respect to any award received thereby under the
2014 Plan without the participant’s consent, other than
amendments that are necessary to permit the granting of awards in
compliance with applicable laws. We have attempted to structure the
2014 Plan so that remuneration attributable to stock options and
other awards will not be subject to the deduction limitation
contained in Code Section 162(m).
PROPOSAL NO. 2
RATIFICATION OF THE APPOINTMENT OF
MAZARS USA TO SERVE AS OUR
REGISTERED PUBLIC ACCOUNTING FIRM FOR THE CURRENT FISCAL
YEAR
Upon
recommendation of the Audit Committee of the Board of Directors,
the Board appointed Mazars USA LLP, formerly WeiserMazars
(“Mazars USA”),
as our independent registered public accounting firm for the year
ending December 31, 2018, and hereby recommends that the
stockholders ratify such appointment.
The
Board may terminate the appointment of Mazars USA as the
Company’s independent registered public accounting firm
without the approval of the Company’s stockholders whenever
the Board deems such termination necessary or
appropriate.
Representatives of
Mazars USA will be present at the Annual Meeting or available by
telephone and will have an opportunity to make a statement if they
so desire and to respond to appropriate questions from
stockholders.
Audit Fees
The
following table presents fees for professional services billed by
Mazars USA LLP for the fiscal years ended December 31, 2017 and
2016.
|
|
For the years ended
December 31,
|
|
|
|
2017
|
2016
|
|
Audit fees (1)
|
$139,329
|
$284,779
|
|
Audit-related fees (2)
|
33,240
|
181,437
|
|
Tax fees (3)
|
20,114
|
12,600
|
|
All other fees (4)
|
-
|
-
|
|
Total
|
$192,683
|
$478,816
|
(1)
Professional
services rendered by the Mazars USA LLP for the audit of our annual
financial statements and review of financial statements included in
our Form 10-Q’s.
(2)
The
aggregate fees billed for assurance and related services by Mazars
USA LLP that are reasonably related to the performance of the audit
or review of our financial statements and are not reported under
Note 1 above.
(3)
The
aggregate fees billed for professional services rendered by Mazars
USA LLP for tax compliance, tax advice, and tax
planning.
(4)
The
aggregate fees billed for products and services provided by Mazars
USA LLP other than the services reported in Notes 1 through 3
above.
-17-
Audit Committee Pre-Approval Policies and Procedures
The
Audit Committee has the sole authority for the appointment,
compensation and oversight of the work of our independent
accountants, who prepare or issue an audit report for
us.
Audit Committee Pre-Approval Policies
The
Audit Committee has established its pre-approval policies and
procedures, pursuant to which the Audit Committee approved the
foregoing audit and permissible non-audit services provided by
Mazars USA in fiscal 2017 and 2016. Such procedures govern the ways
in which the Audit Committee pre-approves audit and various
categories of non-audit services that the auditor provides to the
Company. Services which have not received pre-approval must
receive specific approval of the Audit Committee. The Audit
Committee is to be informed of each such engagement in a timely
manner, and such procedures do not include delegation of the Audit
Committee’s responsibilities to management.
Required Vote and Recommendation
Ratification of the
selection of Mazars USA as the Company’s independent auditors
for the fiscal year ending December 31, 2018 requires the
affirmative vote of a majority of the shares present or represented
by proxy and entitled to vote at the Annual Meeting. Unless
otherwise instructed on the proxy or unless authority to vote is
withheld, shares represented by executed proxies will be voted
“FOR” the ratification of Mazars USA as the
Company’s independent auditors for the fiscal year ending
December 31, 2018.
The Board recommends that stockholders vote
“FOR”
the ratification of the selection of Mazars USA as our independent
auditors for the fiscal year ending December 31,
2018.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDERS MATTERS
As of July 2, 2018, the record date for the Annual Meeting, we
had one class of voting stock outstanding: common stock. The
following table sets forth information regarding shares of common
stock beneficially owned as of July 2, 2018 by:
|
|
(i)
|
Each of our officers and directors;
|
|
|
(ii)
|
All officer and directors as a group; and
|
|
|
(iii)
|
Each person known by us to beneficially own five percent or more of
the outstanding shares of our common stock. Percent ownership is
calculated based on 16,792,395 shares of common stock
outstanding at July 2, 2018.
|
-18-
Beneficial Ownership of Common Stock
|
Name and Address of Beneficial Owner (1)
|
Number of
Shares (2)
|
Percent Ownership of Class (3)
|
|
Johan M. (Thijs) Spoor, President and Chief
Executive Officer (4)
|
539,885
|
3.2%
|
|
Daniel
Dupret, Chief Scientific Officer
|
–
|
*
|
|
Maged Shenouda, Chief Financial Officer and
Director (5)
|
96,667
|
*
|
|
Dr.
James E. Pennington, Chief Medical Officer
|
–
|
*
|
|
Alastair Riddell,
Director (6)
|
109,167
|
*
|
|
Edward J. Borkowski,
Director (7)
|
431,767
|
2.6%
|
|
Charles
J. Casamento, Director
|
40,000
|
*
|
|
Vern
Lee Schramm, Ph.D., Director
|
22,500
|
*
|
|
All
directors and executive officers as a group (8
persons)
|
1,239,886
|
7.2%
|
|
|
|
|
|
5% Stockholders
|
|
|
|
Edmond Burke Ross, Jr. (8)(9)
|
2,401,010
|
13.7%
|
|
Pelican Partners LLC (10)
|
1,627,796
|
9.7%
|
|
ADEC Private Equity (11)
|
1,676,009
|
9.6%
|
|
Laurence W. Lytton (12)
|
1,030,300
|
6.1%
|
|
Highbridge Capital Management, LLC
(13)
|
1,000,000
|
6.0%
|
* Less than 1%.
(1)
Unless
otherwise indicated, the address of such individual is c/o AzurRx
BioPharma, Inc., 760 Parkside Avenue, Downstate Biotechnology
Incubator, Suite 304, Brooklyn, NY 11226.
(2)
Beneficial
ownership is determined in accordance with the rules of the SEC and
generally includes voting or investment power with respect to
securities. All entries exclude beneficial ownership of shares
issuable pursuant to warrants, options or other derivative
securities that have not vested or that are not otherwise
exercisable as of the date hereof or which will not become vested
or exercisable within 60 days of July 2, 2018.
(3)
Percentages
are rounded to nearest percent. Percentages are based on 16,792,395
shares of common stock outstanding. Warrants, options or other
derivative securities that are presently exercisable or exercisable
within 60 days are deemed to be beneficially owned by the person
holding the options for the purpose of computing the percentage
ownership of that person, but are not treated as outstanding for
the purpose of computing the percentage of any other
person.
(4)
Includes
(i) 200,034 shares of common stock; (ii) 200,000 restricted shares
of common stock; (iii) 100,000 shares of common stock issuable upon
exercise of options; (iv) 100,000 shares of common stock that may
be purchased pursuant to options granted by third parties at an
exercise price of $1.00 per share; and (v) 39,851 shares of common
stock held in a trust for the benefit of Mr. Spoor’s spouse
and minor children. Mr. Spoor disclaims beneficial ownership with
respect to such shares of common stock held in trust.
(5)
Includes
(i) 42,500 shares of common stock; (ii) 30,000 restricted shares of
common stock; and (iii) 24,167 shares of common stock issuable upon
the exercise of stock options.
-19-
(6)
Includes
(i) 55,000 shares of common stock; (ii) 30,000 restricted shares of
common stock; and (iii) 24,167 shares of common stock issuable upon
the exercise of stock options.
(7)
Includes
(i) 268,883 shares of common stock; (ii) 45,000 restricted shares
of common stock; (iii) 28,474 shares of common stock issuable upon
the exercise of warrants; (iv) 24,167 shares of common stock
issuable upon exercise of options; and (v) 65,243 held together
with Mr. Borkowski’s spouse.
(8)
Based
upon information contained in a Schedule 13D filed by Burke Edmund
Ross, Jr. on June 13, 2017 and records maintained by the Company.
Includes a total of 1,659,840 shares of common stock and warrants
to purchase up to 644,741 shares of common stock. Of these
holdings, (i) 1,676,009 shares are held by ADEC Private Equity
Investment, LLC, which include 1,031,268 shares of common stock and
644,741 shares issuable upon exercise of warrants; (ii) 675,000
shares are held by EBR Ventures, LLC, which include 600,000 shares
of common stock and 75,000 shares issuable upon exercise of
warrants; and (iii) 50,001 shares held by CEDA Investments, LLC,
which include 28,572 shares of common stock and 21,429 shares
issuable upon exercise of warrants. Mr. Ross is the Manager of
EBR Ventures, LLC, ADEC Private Equity Investment, LLC and CEDA
Investments, LLC, and has voting and dispositive power over the
shares of common stock held by such entities. The address of Mr.
Ross and such entities is c/o JDJ Family Office Services, P.O. Box
962049, Boston, MA 02196.
(9)
Shares
owned and percentages for Burke Edmond Ross and ADEC Private Equity
are partially duplicative as Mr. Ross holds voting and dispositive
power over the shares held by ADEC Private Equity.
(10)
Based
upon information contained in a Schedule 13G filed by Matthew Balk
on August 28, 2017. The address of such entity is P.O. Box 2422,
Westport, CT 06880. Matthew Balk is the managing member of Pelican
Partners LLC, and has voting and dispositive power over the shares
of common stock held by such entity.
(11)
Based
upon information contained in a Schedule 13D filed by Burke Edmund
Ross, Jr. on June 13, 2017 and records maintained by the Company.
As indicated in Note 8 above, includes 644,741 shares of common
stock issuable upon the exercise of warrants. Mr. Ross has voting
and dispositive power over the shares held by such
entity.
(12)
Based
upon information contained in a Schedule 13G filed by Laurence W.
Lytton on May 11, 2018. The address of Mr. Lytton is 467 CPW, New
York, New York 10025.
(13)
Based upon information contained in a Schedule 13G
filed by Highbridge Capital Management, LLC on May 11, 2018. The
address of such entity is 40 West 57th
Street, 32nd
Floor, New York, New York
10019.
Certain
Relationships and Related Transactions
During the year ended December 31, 2015, the
Company employed the services of JIST Consulting
(“JIST”), a company controlled by Johan (Thijs)
Spoor, the Company’s current Chief Executive Officer and
president, as a consultant for business strategy, financial
modeling, and fundraising. Included in accounts payable at December
31, 2017 and 2016 was $478,400 and $508,300, respectively, for JIST
relating to Mr. Spoor’s services. Mr. Spoor received no other
compensation from the Company other than as specified in his
employment agreement.
-20-
During the year ended December 31, 2015, the
Company’s President, Christine Rigby-Hutton, was employed
through Rigby-Hutton Management Services
(“RHMS”).
Ms. Rigby-Hutton resigned from the Company effective April 20,
2015. Included in accounts payable at both December 31, 2017 and
2016 was $38,453 for RHMS for Ms. Rigby-Hutton’s
services.
From
October 1, 2015 through December 31, 2015, the Company used the
services of Edward Borkowski as a financial consultant. Mr.
Borkowski is a member of the Board of Directors and the Chairman of
the Company’s Audit Committee. Included in accounts payable
at both December 31, 2017 and 2016 is $90,000 for Mr.
Borkowski’s services.
In
July 2016, the Company granted 45,000 shares of restricted common
stock to Mr. Borkowski and 30,000 shares of restricted common stock
to each of Mr. Shenouda and Dr. Riddell, members of the
Company’s Board of Directors. The shares of restricted common
stock will be issued as follows: (i) 50% upon the first commercial
sale in the United States of MS1819, and (ii) 50% upon our total
market capitalization exceeding $1.0 billion for 20 consecutive
trading days, in each case subject to the earlier determination of
a majority of the members of the Board of Directors.
Beginning
October 1, 2016 until his appointment as the Company’s Chief
Financial Officer on September 25, 2017, the Company utilized the
services of Maged Shenouda as a financial consultant. Mr. Shenouda
is also a member of the Board of Directors. Included in accounts
payable at both December 31, 2017 and 2016 is $90,000 for Mr.
Shenouda’s services.
Policy and Procedures Governing Related Party
Transactions
The
Board of Directors is committed to upholding the highest legal and
ethical conduct in fulfilling its responsibilities and recognizes
that related party transactions can present a heightened risk of
potential or actual conflicts of interest.
The
SEC rules define a related party transaction to include any
transaction, arrangement or relationship which: (i) we are a
participant; (ii) the amount involved exceeds $120,000; and (iii)
executive officer, director or director nominee, or any person who
is known to be the beneficial owner of more than 5% of our common
stock, or any person who is an immediate family member of an
executive officer, director or director nominee or beneficial owner
of more than 5% of our common stock had or will have a direct or
indirect material interest.
Although
we do not maintain a formal written procedure for the review and
approval of transactions with such related persons, it is our
policy for the disinterested members of our Board of Directors to
review all related party transactions on a case-by-case
basis. To receive approval, a related-party transaction must
have a legitimate business purpose for us and be on terms that are
fair and reasonable to us and our stockholders and as favorable to
us and our stockholders as would be available from non-related
entities in comparable transactions.
All
related party transactions must be disclosed in our applicable
filings with the SEC as required under SEC rules.
REPORT OF THE AUDIT COMMITTEE OF THE BOARD OF
DIRECTORS
The Audit Committee has reviewed and discussed
with management and Mazars USA,
our independent registered public accounting firm, the audited
consolidated financial statements in the AzurRx BioPharma,
Inc. Annual Report on Form 10-K for
the year ended December 31, 2017. The Audit Committee has also
discussed with Mazars USA those matters required to be discussed by
Public Company Accounting Oversight Board
(“PCAOB”) Auditing Standard No.
61.
Mazars
USA also provided the Audit Committee
with the written disclosures and the letter required by the
applicable requirements of the PCAOB regarding the independent
auditor’s communication with the Audit Committee concerning
independence. The Audit Committee has discussed with the registered
public accounting firm their independence from our
Company.
-21-
Based
on its discussions with management and the registered public
accounting firm, and its review of the representations and
information provided by management and the registered public
accounting firm, including as set forth above, the Audit Committee
recommended to our Board that the audited financial statements be
included in our Annual Report on Form 10-K for the year ended
December 31, 2017.
|
|
Respectfully Submitted,
Edward
J. Borkowski, Chairman
Alastair
Riddell
Charles
J. Casamento
|
The information contained above under the caption
“Report of the Audit Committee
of the Board of Directors” shall not be deemed to be soliciting
material or to be filed with the SEC, nor shall such information be
incorporated by reference into any future filing under the
Securities Act of 1933, as amended, or the Securities Exchange Act
of 1934, as amended, except to the extent that we specifically
incorporate it by reference into such filing.
ADDITIONAL INFORMATION
Deadline for Receipt of Stockholder Proposals for the 2019 Annual
Meeting
Pursuant to Rule 14a-8 under the Exchange Act,
stockholder proposals to be included in our next proxy statement
must be received by us at our principal executive offices at
760 Parkside Avenue, Downstate Biotechnology Incubator, Suite 304,
Brooklyn, NY 11226, addressed to our
Corporate Secretary, no later than 90 days nor more than 120 days
prior to the first anniversary of the preceding year’s annual
meeting. These proposals must comply with applicable Delaware law,
the rules and regulations promulgated by the SEC and the procedures
set forth in our Bylaws.
We
reserve the right to reject, rule out of order, or take other
appropriate action with respect to any proposal that does not
comply with these and all other applicable
requirements.
Householding of Proxy Materials
The SEC
has adopted rules that permit companies and intermediaries (e.g.,
brokers) to satisfy the delivery requirements for proxy statements
and annual reports with respect to two or more stockholders sharing
the same address by delivering a single proxy statement and annual
report addressed to those stockholders. This process, which is
commonly referred to as “householding,” potentially
means extra convenience for stockholders and cost savings for
companies.
A
number of brokers with account holders who are stockholders of the
Company will be “householding” the Company’s
proxy materials. A single set of the Company’s proxy
materials will be delivered to multiple stockholders sharing an
address unless contrary instructions have been received from the
affected stockholders. Once you have received notice from your
broker that they will be “householding” communications
to your address, “householding” will continue until you
are notified otherwise or until you revoke your consent. If, at any
time, you no longer wish to participate in
“householding” and would prefer to receive a separate
set of the Company’s proxy materials, please notify your
broker or direct a written request to the Company at 760 Parkside
Avenue, Downstate Biotechnology Incubator, Suite 304, Brooklyn, NY
11226, or contact us at (646) 699-7855. The Company undertakes to
deliver promptly, upon any such oral or written request, a separate
copy of its proxy materials to a stockholder at a shared address to
which a single copy of these documents was delivered. Stockholders
who currently receive multiple copies of the Company’s proxy
materials at their address and would like to request
“householding” of their communications should contact
their broker, bank or other nominee, or contact the Company at the
above address or phone number.
-22-
Other Matters
At the
date of this proxy statement, the Company knows of no other
matters, other than those described above, that will be presented
for consideration at the Annual Meeting. If any other business
should come before the Annual Meeting, it is intended that the
proxy holders will vote all proxies using their best judgment in
the interest of the Company and the stockholders.
The
Board invites you to attend the Annual Meeting in person. Whether
or not you expect to attend the Annual Meeting in person, please
submit your vote by Internet, telephone or mail as promptly as
possible so that your
shares will be represented at the Annual Meeting.
REGARDLESS
OF WHETHER YOU PLAN TO ATTEND THE ANNUAL MEETING IN
PERSON, PLEASE READ THE ACCOMPANYING PROXY STATEMENT AND THEN
VOTE BY INTERNET, TELEPHONE OR MAIL AS PROMPTLY AS
POSSIBLE. VOTING PROMPTLY WILL SAVE US ADDITIONAL
EXPENSE IN SOLICITING PROXIES AND WILL ENSURE THAT YOUR SHARES ARE
REPRESENTED AT THE ANNUAL MEETING.
By
order of the Board of Directors,
Johan
M. (Thijs) Spoor
Chief Executive Officer
-23-
AZURRX BIOPHARMA, INC.
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF
AZURRX
BIOPHARMA, INC.
FOR THE 2018 ANNUAL MEETING OF STOCKHOLDERS
The undersigned
revokes all previous proxies and constitutes and appoints Johan M.
(Thijs) Spoor and Maged Shenouda, and each of them, his or her true
and lawful agent and proxy with full power of substitution in each,
to represent and to vote on behalf of the undersigned all of the
shares of AzurRx BioPharma, Inc. (the “Company”) which the undersigned
is entitled to vote at the Company’s 2018 Annual Meeting of
Stockholders (the “Annual
Meeting”), to be held at the Crown Plaza Hotel located at 690 US Highway 46,
Fairfield, New Jersey 07004, on August 27, 2018 at 9:00 AM
Eastern Daylight Time, and at any adjournment(s) or postponement(s)
thereof, upon the following proposals, each of which are more fully
described in the Notice of Annual Meeting of Stockholders and Proxy
Statement for the Annual Meeting (receipt of which is hereby
acknowledged).
This
proxy when properly executed will be voted in the manner directed
herein by the undersigned stockholder. If no direction is made,
this proxy will be voted FOR each nominee identified in
Proposal No. 1 and FOR Proposal No. 2, each of
which have been proposed by our Board of Directors, and in the
discretion of the proxy holder upon other matters as may properly
come before the Annual Meeting.
(continued and to be signed on reverse side)
-24-
