Revised Proxy Soliciting Materials (Form DEFR14A)
SECURITIES AND EXCHANGE COMMISSION
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
(Amendment No. 1)
Filed by the Registrant ☒
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Check the appropriate box:
| ☐ | Preliminary Proxy Statement |
| ☐ | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| ☒ | Definitive Proxy Statement |
| ☐ | Definitive Additional Materials |
| ☐ | Soliciting Material Pursuant to §240.14a-12 |
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EXPLANATORY NOTE
This Amendment No. 1 to Schedule 14A (this "Amendment") is being filed to amend and replace the Definitive Proxy Statement filed by
| ● | This Amendment and Proxy Statement relates to the 2025 Annual Meeting of Stockholders; |
| ● | The Record Date is |
| ● | For the question, "What if I do not specify how my shares are to be voted?" in the "About the Annual Meeting: Questions and Answers" section, the Proposal No. 2 relates to the appointment and ratification of |
| ● | Under the "2024 Non-Employee Director Compensation Table" in the "Director Compensation" section, the total compensation paid to Mr. |
| ● | All the biographical information in the Proxy Statement is as of |
Aside from the aforementioned information, no other changes have been made to the Proxy Statement or to the matters to be considered by the stockholders.
Dear Stockholder:
It is my pleasure to invite you to attend
Details regarding the business to be conducted at the Annual Meeting are more fully described in the accompanying Notice of Annual Meeting of Stockholders and proxy statement.
Your vote is important. Whether or not you expect to attend the Annual Meeting online, please date, sign and retuyour proxy card in the enclosed envelope or vote by using the Internet or by telephone according to the instructions in the proxy statement to assure that your shares will be represented and voted at the Annual Meeting. If you attend the Annual Meeting and follow the instructions in the proxy statement, you may vote your shares electronically during the Annual Meeting even though you have previously voted by proxy. If you hold your shares through an account with a brokerage firm, bank or other nominee, please follow the instructions you receive from your broker, bank, trustee or other nominee to vote your shares. Details about how to attend the Annual Meeting online and how to submit questions and cast your votes are posted at www.proxydocs.com/VANI and can be found in the proxy statement in the section entitled "About the Annual Meeting: Questions and Answers about this Proxy Material and Voting - How can I participate in the Annual Meeting? and How do I vote and what are the voting deadlines?"
On behalf of your Board of Directors, thank you for your continued support and interest.
| Sincerely, | |
| /s/ |
|
| Chief Executive Officer |
(415) 506-8462
NOTICE OF 2025 ANNUAL MEETING OF STOCKHOLDERS
To Be Held on
To the Stockholders of
You are cordially invited to attend the Annual Meeting of Stockholders (the "Annual Meeting") of
| 1. | Proposal No. 1: To elect the six directors from the nominees named in the accompanying proxy statement to hold office for the ensuing year and until their successors are duly elected and qualified; |
| 2. | Proposal No. 2: To ratify the appointment by the Audit Committee of our Board of Directors of |
| 3. | Proposal No. 3: To approve, on a non-binding advisory basis, the compensation of the Company's named executive officers; and |
To transact such other business as may properly come before the Annual Meeting and any adjournments or postponements thereof.
This year, we have elected to use the Internet as our primary means of providing our proxy materials to stockholders. Consequently, most stockholders will not receive paper copies of our proxy materials. We will instead send to our stockholders a Notice of Internet Availability of Proxy Materials, which contains instructions on how to access our proxy statement and our Annual Report on Form 10-K for the year ended
| By Order of the Board of Directors | |
| /s/ |
|
| Chief Executive Officer |
Dated:
TABLE OF CONTENTS
THE PROXY PROCEDURE
Our board of directors solicits your proxy for the 2025 Annual Meeting of Stockholders (the "Annual Meeting"), and for any postponement or adjournment of the Annual Meeting, for the purposes described in the "Notice of Annual Meeting of Stockholders." The table below shows some important details about the Annual Meeting and voting. Additional information is available in the "About the Annual Meeting: Questions and Answers" section of the proxy statement immediately below the table. We use the terms "Vivani," "the Company," "we," "our" and "us" in this Proxy Statement to refer to
This Proxy Statement and the accompanying proxy card are first being delivered, on or about
Important Notice Regarding the Availability of Proxy Materials for the 2025 Annual Meeting
This proxy statement and the 2024 Annual Report are available for viewing, printing and downloading at www.proxydocs.com/VANI and on the "Investors" section of our website at www.vivani.com. Certain documents referenced in the proxy statement are available on our website. However, we are not including the information contained on our website, or any information that may be accessed by links on our website, as part of, or incorporating it by reference into, this Proxy Statement.
| Meeting Details | |
| Virtual Meeting | To participate in the Annual Meeting virtually via the Internet, please visit: www.proxydocs.com/VANI. To access the Annual Meeting, you will need the control number included on your Notice of Internet Availability of Proxy Materials, included on your proxy card, or provided through your broker. Stockholders will be able to vote and submit questions during the Annual Meeting. |
| Record Date | |
| Shares Outstanding | There were 59,243,903 shares of common stock outstanding and entitled to vote as of the Record Date. |
| Eligibility to Vote | Holders 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. Each stockholder is entitled to one vote for each share held as of the Record Date. |
| Quorum | The holders of a majority of the shares of common stock outstanding and entitled to vote, by proxy or via live webcast, as of the Record Date constitutes a quorum. A quorum is required to transact business at the Annual Meeting. |
| Voting Methods | Stockholders whose shares are registered in their names with |
| Inspector of Elections | We will appoint an independent Inspector of Elections to determine whether a quorum is present, and to tabulate the votes cast by proxy or at the Annual Meeting via live webcast. |
| Voting Results | We will announce preliminary results at the Annual Meeting. We will report final results on a Current Report on Form 8-K filed with the |
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| Proxy Solicitation Costs | We will bear the costs of soliciting proxies from our stockholders. These costs include preparing, assembling, printing, mailing and distributing notices, proxy statements, proxy cards and Annual Reports. Our directors, officers and other employees may solicit proxies personally or by telephone, e-mail or other means of communication, and we will reimburse them for any related expenses. We will also reimburse brokers and other nominees for their reasonable out-of-pocket expenses for forwarding proxy materials to the Beneficial Owners of the shares that the nominees hold in their names. |
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ABOUT THE ANNUAL MEETING: QUESTIONS AND ANSWERS
What matters am I voting on?
You will be voting on:
| ● | A proposal to elect six directors to hold office until the 2026 annual meeting of stockholders (the "2026 Annual Meeting") or until their successors are duly elected and qualified; |
| ● | A proposal to ratify the appointment by the Audit Committee of our Board of Directors of |
| ● | A proposal to approve, on a non-binding advisory basis, the compensation of the Company's named executive officers; and |
| ● | Any other business that may properly come before the Annual Meeting or any adjournment or postponement thereof. |
How does our board of directors recommend that I vote?
Our board of directors recommends that you vote:
| ● | FOR the election of the six directors nominated by our board of directors and named in this Proxy Statement as directors to serve for one-year terms; |
| ● | FOR the ratification of the appointment by the Audit Committee of our Board of Directors of |
| ● | FOR, on a non-binding advisory basis, the approval of the compensation of our named executive officers. |
Why did I receive a notice in the mail regarding the Internet availability of proxy materials?
Instead of mailing printed copies to each of our stockholders, we have elected to provide access to our proxy materials over the Internet under the
What is the purpose of complying with the
We believe compliance with the
Will there be any other items of business on the agenda?
If any other items of business or other matters are properly brought before the Annual Meeting, your proxy gives discretionary authority to the persons named on the proxy card with respect to those items of business or other matters. The persons named on the proxy card intend to vote the proxy in accordance with their best judgment. Our Board does not intend to bring any other matters to be voted on at the Annual Meeting, and we are not currently aware of any matters that may be properly presented by others for action at the Annual Meeting.
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Who is entitled to vote at the Annual Meeting?
Holders 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. Each stockholder is entitled to one vote for each share of our common stock held as of the Record Date.
A complete list of the stockholders entitled to vote at the Annual Meeting will be available at our headquarters, located at
What is the difference between holding shares as a Stockholder of Record and as a Beneficial Owner?
Stockholders of Record. If, at the close of business on the Record Date, your shares are registered directly in your name with
Beneficial Owners. If your shares are held in a stock brokerage account or by a bank or other nominee on your behalf, you are considered the Beneficial Owner of shares held in "street name." As the Beneficial Owner, you have the right to direct your broker or nominee how to vote your shares by following the voting instructions your broker or other nominee provides. In general, if you do not provide your broker or nominee with instructions on how to vote your shares, pursuant to NYSE rules applicable to brokers, your broker or nominee may, in its discretion, vote your shares with respect to "routine" matters (e.g., the ratification of the appointment of our independent auditor), but may not vote your shares with respect to any "non-routine" matters (e.g., the election of directors). Please see "What if I do not specify how my shares are to be voted?" for additional information.
How can I participate in the Annual Meeting?
Our stockholders may participate in the Annual Meeting by visiting the following website: www.proxydocs.com/VANI. You will need the control number included on your proxy card to attend and vote at the Annual Meeting. If you are the Beneficial Owner of your shares, your control number may be included in the voting instructions form that accompanied your proxy materials. If your nominee did not provide you with a control number in the voting instructions form that accompanied your proxy materials, you may be able to log onto the website of your nominee prior to the start of the Annual Meeting, which will automatically populate your control number in the virtual Annual Meeting interface. Stockholders who have obtained a control number as described above may vote or submit questions while participating in the live webcast of the Annual Meeting. However, even if you plan to attend the Annual Meeting virtually, we recommend that you vote your shares in advance, so that your vote will be counted if you later decide not to attend the Annual Meeting via live webcast.
How do I vote and what are the voting deadlines?
Stockholders of Record. Stockholders of Record can vote by proxy or by attending the Annual Meeting virtually by visiting www.proxydocs.com/VANI, where votes can be submitted via live webcast. If you vote by proxy, you can vote by Internet, telephone or by mail as described below.
| ● | You may vote via the Internet or by telephone. To vote via the Internet or by telephone, follow the instructions provided in the Notice or in the proxy card that accompanies this proxy statement. If you vote via the Internet or by telephone, you do not need to retua proxy card by mail. Internet and telephone voting are available 24 hours a day. Votes submitted through the Internet or by telephone must be received by |
| ● | You may vote by mail. If you would like to vote by mail, you need to complete, date and sign the proxy card that accompanies this Proxy Statement and promptly mail it in the enclosed postage-paid envelope so that it is received no later than |
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| your instructions on the proxy card you mail. If you retuthe proxy card, but do not give any instructions on a particular matter to be voted on at the Annual Meeting, the persons named on the proxy card will vote the shares you own in accordance with the recommendations of our board of directors. Our board of directors recommends that you vote FOR each of Proposal Nos. 1, 2 and 3. |
| ● | You may vote at the Annual Meeting. If you choose to vote at the Annual Meeting virtually, you will need the control number included on your Notice or on your proxy card. If you are the beneficial owner of your shares, your control number may be included in the voting instructions form that accompanied your proxy materials. If your nominee did not provide you with a control number in the voting instructions form that accompanied your proxy materials, you may be able to log onto the website of your nominee prior to the start of the Annual Meeting, on which you will need to select the stockholder communications mailbox link through to the Annual Meeting, which will automatically populate your control number in the virtual Annual Meeting interface. The method you use to vote will not limit your right to vote at the virtual Annual Meeting. All shares that have been properly voted and not revoked will be voted at the Annual Meeting. |
Beneficial Owners. If you are the Beneficial Owner of shares held of record by a broker or other nominee, you will receive voting instructions from your broker or other nominee. You must follow the voting instructions provided by your broker or other nominee in order to instruct your broker or other nominee how to vote your shares. The availability of telephone and Internet voting options will depend on the voting process of your broker or other nominee. As discussed above, to vote during the Annual Meeting, beneficial owners must obtain a valid legal proxy from your broker, bank, or other agent giving you the right to vote your shares during the Annual Meeting. Contact your broker, bank, or other agent to request a legal proxy. To be able to vote during the Annual Meeting, you must submit a valid legal proxy via email to [email protected] with the subject line "Legal Proxy" by
May I change my vote or revoke my proxy?
Stockholders of Record. If you are a Stockholder of Record, you may revoke your proxy or change your proxy instructions at any time before your proxy is voted at the Annual Meeting by:
| ● | entering a new vote by Internet or telephone; |
| ● | signing and returning a new proxy card with a later date; |
| ● | delivering a written revocation to our Secretary at the address listed on the front page of this proxy statement; or |
| ● | attending the Annual Meeting and voting via live webcast. |
Beneficial Owners. If you are the beneficial owner of your shares, you must contact the broker or other nominee holding your shares and follow their instructions to change your vote or revoke your proxy.
What is the effect of giving a proxy?
Proxies are solicited by and on behalf of our board of directors. The persons named on the proxy card have been designated as proxy holders by our board of directors. When a proxy is properly dated, executed and returned, the shares represented by the proxy will be voted at the Annual Meeting in accordance with the instruction of the stockholder. If no specific instructions are given, however, the shares will be voted in accordance with the recommendations of our board of directors (as shown on the first page of the proxy statement). If any matters not described in the proxy statement are properly presented at the Annual Meeting, the proxy holders will use their own judgment to determine how to vote your shares. If the Annual Meeting is postponed or adjourned, the proxy holders can vote your shares on the new meeting date, unless you have properly revoked your proxy, as described above.
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What if I do not specify how my shares are to be voted?
Stockholders of Record. If you are a Stockholder of Record and you submit a proxy, but you do not provide voting instructions, your shares will be voted:
| ● | FOR the election of the six directors nominated by our board of directors and named in this Proxy Statement as directors to serve for one-year terms (Proposal No. 1); |
| ● | FOR the ratification of the appointment by the Audit Committee of our Board of Directors of |
| ● | FOR, on a non-binding advisory basis, the approval of the compensation of our named executive officers (Proposal No. 3); and |
In the discretion of the named proxy holders regarding any other matters properly presented for a vote at the Annual Meeting.
Beneficial Owners. If you are a Beneficial Owner and you do not provide your broker or other nominee that holds your shares with voting instructions, your broker or other nominee will determine if it has discretion to vote on each matter. In general, under the NYSE rules applicable to brokers, brokers and other nominees do not have discretion to vote on non-routine matters. Each of Proposal No. 1 (election of directors) and Proposal No. 3 (endorsement of executive compensation) is a non-routine matter under the NYSE rules, while Proposal No. 2 (ratification of appointment of independent registered public accounting firm) is a routine matter under the NYSE rules. As a result, if you do not provide voting instructions to your broker or other nominee, your broker or other nominee cannot vote your shares with respect to Proposal Nos. 1 and 3, which would result in a "broker non-vote," but may, in its discretion, vote your shares with respect to Proposal No. 2. For additional information regarding broker non-votes, see "What are the effects of abstentions and broker non-votes?" below.
What is a quorum?
A quorum is the minimum number of shares required to be present at the Annual Meeting for the meeting to be properly held under our bylaws and
Abstentions and broker non-votes will be counted towards the quorum requirement.
What are the effects of abstentions and broker non-votes?
An abstention represents a stockholder's affirmative choice to decline to vote on a proposal. Abstentions will be counted for purposes of determining the presence or absence of a quorum.
The outcome of Proposal No. 1 (election of directors) will be determined by a plurality of the votes properly cast on the election of directors at the Annual Meeting, thus abstentions will have no effect on the outcome of the proposal. The outcome of Proposal Nos. 2 and 3 will be determined by the affirmative vote of a majority of the votes properly cast, thus abstentions will have no effect on the outcome of each of the proposals.
A broker non-vote occurs when a broker or other nominee holding shares for a Beneficial Owner does not vote on a particular proposal, because the broker or other nominee does not have discretionary voting power with respect to such proposal and has not received voting instructions from the Beneficial Owner of the shares. Broker non-votes will be counted for purposes of calculating whether a quorum is present at the Annual Meeting, but will not be counted for purposes of determining the number of votes cast. Therefore, a broker non-vote will make a quorum more readily attainable, but will not affect the outcome of the vote on Proposal Nos. 1, 2 or 3.
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How many votes are needed for approval of each proposal?
|
Proposal |
Vote Required |
Effect of Withheld Votes |
Routine or Non-routine; |
|||
| Proposal No. 1-Election of directors | Plurality of votes cast | No effect | This is not a routine matter. Broker non-votes will have no effect. | |||
| Proposal No. 2-Ratification of the appointment of the independent registered public accounting firm | Majority of votes cast | No effect | This is a routine matter. Broker non-votes, if any, will have no effect. | |||
| Proposal No. 3-Endorsement of the compensation of executive officers | Majority of votes cast | No effect | This is not a routine matter. Broker non-votes will have no effect. |
With respect to Proposal No. 1, you may vote (i) FOR any or all of the nominees, or (ii) WITHHOLD your vote as to any or all nominees. The six nominees receiving the highest number of FOR votes will be elected. If you WITHHOLD your vote as to all nominees, your vote will have no effect on the outcome of the vote of Proposal No. 1.
If you ABSTAIN from voting on Proposal Nos. 2 or 3, the abstention will have no effect on the outcome of the respective proposal.
How are proxies solicited for the Annual Meeting and who is paying for the solicitation?
The board of directors is soliciting proxies for use at the Annual Meeting by means of this proxy statement. We will bear the entire cost of the proxy solicitation, including the preparation, assembly, printing, mailing and distribution of the proxy materials. Copies of solicitation materials will also be made available upon request to brokers and other nominees to forward to the Beneficial Owners of the shares held of record by the brokers or other nominees. We will reimburse brokers or other nominees for reasonable expenses that they incur in sending these proxy materials to Beneficial Owners.
This solicitation of proxies may be supplemented by solicitation by telephone, electronic communication, or other means by our directors, officers, employees or agents. No additional compensation will be paid to these individuals for any such services, although we may reimburse such individuals for their reasonable out-of-pocket expenses in connection with such solicitation. We do not plan to retain a proxy solicitor to assist in the solicitation of proxies.
Is my vote confidential?
Proxy instructions, ballots, and voting tabulations that identify individual stockholders are handled in a manner that protects your voting privacy. Your vote will not be disclosed either within Vivani or to third parties, except as necessary to meet applicable legal requirements, to allow for the tabulation of votes and certification of the vote, or to facilitate a successful proxy solicitation.
Will members of the board of directors attend the Annual Meeting?
We encourage our board members to attend the Annual Meeting. Because this year's Annual Meeting will be completely virtual, those board members who do attend will not be available to answer questions from stockholders.
I share an address with another stockholder, and we received only one paper copy of the proxy materials. How may I obtain an additional copy of the proxy materials?
We have adopted an
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written or oral request, we will promptly deliver a separate copy of the Notice and, if applicable, the proxy materials to any stockholder at a shared address to which we delivered a single copy of these documents. To receive a separate copy, or, if you are receiving multiple copies, to request that Vivani only send a single copy of the next year's Notice and, if applicable, the proxy materials, you may contact us as follows:
(415) 506-8462
Stockholders who hold shares in street name may contact their brokerage firm, bank, broker-dealer or other nominee to request information about householding.
Further Questions
Who can help answer my questions?
If you have any questions about the Annual Meeting or how to vote or revoke your proxy, you should contact
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GOVERNANCE OF THE COMPANY
Our business, property and affairs are managed by, or under the direction of, our Board, in accordance with the General Corporation Law of
Independence of Directors
The Nasdaq Marketplace Rules require a majority of a listed company's Board of Directors to be comprised of independent directors. In addition, the Nasdaq Marketplace Rules require that, subject to specified exceptions, each member of a listed company's audit, compensation and nominating and corporate governance committees be independent and that audit committee members also satisfy independence criteria set forth in Rule 10A-3 under the Securities Exchange Act of 1934 (the "Exchange Act").
Under Rule 5605(a)(2) of the Nasdaq Marketplace Rules, a director will only qualify as an "independent director" if, in the opinion of our Board of Directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In order to be considered independent for purposes of Rule 10A-3 of the Exchange Act, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the Board of Directors, or any other Board committee, accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries or otherwise be an affiliated person of the listed company or any of its subsidiaries.
Our Board of Directors has reviewed the composition of our Board of Directors and the independence of each director. Based upon information requested from and provided by each director concerning his or her background, employment and affiliations, including family relationships, our Board has determined that each of the directors currently serving on the Board with the exception of
Our Board of Directors also determined that the directors who serve on our audit committee, our compensation committee, and our nominating and corporate governance committee satisfy the independence standards for such committees established by the
Board Diversity
Our
Of our six directors, we have one director who is female. As noted above, when considering director candidates, our nominating and corporate governance committee of our board of directors considers any diversifying factors they deem
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appropriate, including, among other things, diversity in professional and personal experience, skills, background, race and gender.
Board Meetings and Committees of our Board
The Board has three standing committees, each of which has the composition described below and responsibilities that satisfy the independence standards of the Securities Exchange Act of 1934 and NASDAQ's rules: the Audit Committee, the Compensation Committee, and the
Committees of the Company's Board of Directors
Our Board of Directors has an Audit Committee, a Compensation Committee and a Nominating and
Audit Committee
The Audit Committee is comprised of
| ● | oversee management's preparation of Vivani's financial statements and management's conduct of the accounting and financial reporting processes; |
| ● | oversee management's maintenance of internal controls and procedures for financial reporting; |
| ● | oversee Vivani's compliance with applicable legal and regulatory requirements, including without limitation, those requirements relating to financial controls and reporting; |
| ● | select a firm to serve as the independent registered public accounting firm to audit Vivani's financial statements; |
| ● | oversee the independent auditor's qualifications and independence; |
| ● | oversee the performance of the independent auditors, including the annual independent audit of Vivani's financial statements; |
| ● | oversee management, monitoring, and mitigation of risk to the business including cybersecurity risks; |
| ● | prepare the report required by the rules of the |
| ● | discharge such duties and responsibilities as may be required of the Committee by the provisions of applicable law, rule or regulation. |
A copy of the charter of the Audit Committee is available on our website at www.vivani.com (under "Investors - Governance").
Compensation Committee
The Compensation Committee is comprised of
The role of the Compensation Committee is to:
| ● | review annually Vivani's overall compensation strategy, including base salary, incentive compensation and equity-based grants, to assure that it promotes stockholder interests and supports Vivani's strategic and tactical objectives; |
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| ● | review annually and approve the factors to be considered in determining the compensation of the Chief Executive Officer of Vivani and Vivani's other executive officers; |
| ● | review, approve or recommend to the Board the annual compensation (base salary, bonus, equity compensation and other benefits) for Vivani's Chief Executive Officer and other executive officers; |
| ● | review, annually, and, if necessary, approve or recommend to the Board the aggregate number of equity awards to be granted to employees below the executive level; |
| ● | oversee Vivani's compliance with regulatory requirements associated with compensation matters; and |
| ● | prepare certain portions of Vivani's annual Proxy Statement, including an annual report on executive compensation. |
A copy of the charter of the Compensation Committee is available on Vivani's website at www.vivani.com (under "Investors-Governance").
In addition, the Compensation Committee considers, but is not bound by, the recommendations of Vivani's Chief Executive Officer with respect to the compensation packages of our other executive officers. The Compensation Committee may form and delegate a subcommittee consisting of one or more members to perform the functions of the Compensation Committee. To date, the Compensation Committee has not delegated any such authority. The Compensation Committee may engage outside advisers, including outside auditors, attorneys and consultants, as it deems necessary to discharge its responsibilities. The Compensation Committee has sole authority to retain and terminate any compensation expert or consultant to be used to provide advice on compensation levels or assist in the evaluation of director, President/Chief Executive Officer and/or senior executive compensation, including sole authority to approve the fees of any expert or consultant and other retention terms. We have utilized a compensation consultant,
Nominating and Corporate Governance Committee
The role of the
| ● | evaluate from time to time the appropriate size (number of members) of the Board and recommend any increase or decrease; |
| ● | determine the desired skills and attributes of members of the Board, considering the needs of the business and listing standards; |
| ● | establish criteria for prospective members, conduct candidate searches, interview prospective candidates, and oversee programs to introduce the candidate to Vivani, Vivani's management, and operations; |
| ● | review planning for succession to the position of Chairman of the Board and Chief Executive Officer and other senior management positions; |
| ● | annually recommend to the Board persons to be nominated for election as directors; |
| ● | recommend to the Board the members of all standing Committees; |
| ● | adopt or develop for Board consideration corporate governance principles and policies; and |
| ● | periodically review and report to the Board on the effectiveness of corporate governance procedures and the Board as a governing body. |
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A copy of the charter of the
Policy with Regard to Security Holder Recommendations
All stockholder nomination recommendations must be in writing. Submissions must be made by mail, courier or personal delivery, addressed to the
Policy on Trading, Pledging and Hedging of Company Stock
Our board of directors have adopted an Insider Trading Policythat applies to our board of directors, our officers and employees, the officers and employees of our subsidiaries, as well as to family members, other members of a person's household, and entities controlled by a persons covered under the Insider Trading Policy. Certain transactions in our securities (such as purchases and sales of publicly traded put and call options, and short sales) create a heightened compliance risk or could create the appearance of misalignment between management and stockholders. In addition, securities held in a margin account or pledged as collateral may be sold without consent if the owner fails to meet a margin call or defaults on the loan, thus creating the risk that a sale may occur at a time when an officer or director is aware of material, non-public information or otherwise is not permitted to trade in Company securities. Therefore, as part of our Insider Trading Policy, we expressly prohibit the above-mentioned persons from engaging in certain prohibited transactions, including short sales, purchases or sales of derivative securities or hedging transactions, the use of our securities as collateral in a margin account, and pledging of our securities. A copy of our Insider Trading Policy is filed with our 2024 Annual Report as Exhibit 19.1. It is also our policy to comply with all applicable securities laws when transacting in our own securities. We believe that our policies and procedures are reasonably designed to promote compliance with insider trading laws, any applicable securities laws, rules, regulations and any exchange listing standards.
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Director Qualifications and Diversity
The Board seeks independent directors who represent a diversity of backgrounds and experiences that will enhance the quality of the Board's deliberations and decisions which will represent the best interests of Vivani and its stockholders. Candidates should have substantial experience with one or more publicly traded companies or should have achieved a prominent level of distinction in their chosen fields. The Board is particularly interested in maintaining a mix that includes individuals who are active or retired executive officers and senior executives, particularly those with experience in medical devices, biotechnology, intellectual property, early-stage technology companies, research and development, strategic planning, business development, compensation, finance, accounting or banking.
The Board believes that the directors nominated collectively have the experience and skills effectively to oversee the management of Vivani, including a high level of personal and professional integrity, an ability to exercise sound business judgement on a broad range of issues, sufficient experience and background to have an appreciation of the issues facing Vivani, and a willingness to devote the necessary time to Board duties.
Compensation Recovery Policy
Our board of directors adopted a Compensation Recovery Policy effective as of
Equity Grant Practices
Though we do not have a formal policy regarding the granting practices of our equity awards, we generally approve annual equity grants for executives and the CEO in May, and for other existing employees in the third quarter following the performance appraisal cycle. Each new hire employee is granted stock options that are generally approved at the first quarterly Compensation Committee meeting following their date of hire. Promotions may occur anytime during the year, at which time grants may be awarded and approved at the next scheduled quarterly Compensation Committee meeting. Annual awards to members of our board of directors will be made on the date of our annual meeting of stockholders and initial grants to members of our board of directors are made upon their election or appointment to our Board, as applicable. Our
During 2024, we granted stock options to our named executive officers during the period beginning four business days before the filing of a Form 10-Q. These grants were approved at a regularly scheduled meeting of our Compensation Committee occurring in May, pursuant to our typical annual refresh process for executives.
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The following table is being provided pursuant to Item 402(x)(2) of Regulation S-K:
|
|
Grant Date |
Number |
Exercise Price |
Grant Date |
Percentage change in the closing market price of the securities underlying the award between the trading day ending immediately prior to the disclosure of material nonpublic information and the trading day beginning immediately following the disclosure of material nonpublic |
|||||
| 200,000 | (1.1%) | |||||||||
| 160,000 | (1.1%) | |||||||||
| 80,000 | (1.1%) |
Role of Board in Risk Oversight
Enterprise risks are identified and prioritized by management and each prioritized risk is assigned to a board committee or the full board for oversight as follows:
Full Board - Risks and exposures associated with strategic, financial and execution risks and other current matters that may present material risk to Vivani's operations, plans, prospects or reputation.
Audit Committee - Risks and exposures associated with financial matters, particularly financial reporting, tax, accounting, disclosure, internal control over financial reporting, financial policies, investment guidelines, cybersecurity and credit and liquidity matters.
Nominating and Corporate Governance Committee - Risks and exposures relating to corporate governance and management and director succession planning.
Compensation Committee - Risks and exposures associated with leadership assessment and compensation programs and arrangements, including incentive plans that compare to market and target employee retention, and succession planning.
Code of Business Conduct and Ethics
The Company adopted a Code of Business Conduct and Ethics ("Code of Ethics") applicable to its principal executive officer. In addition, the Code of Ethics applies to Vivani's employees, officers, directors, agents and representatives. The Code of Ethics requires, among other things, that Vivani's employees avoid conflicts of interest, comply with all laws and other legal requirements, conduct business in an honest and ethical manner, and otherwise act with integrity and in our best interest. The Code of Ethics is available on our website at www.vivani.com (under "Investors - Governance - Governance Documents - Code of Business Conduct and Ethics").
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PROPOSALS
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR EACH OF
PROPOSALS Nos. 1, 2, and3 BELOW.
PROPOSAL No. 1 - ELECTION OF DIRECTORS
Nominees for Election
The Company's Board of Directors currently has six members. Our Board has nominated our six of our incumbent directors for election at the Annual Meeting with terms expiring at the 2026 annual meeting of stockholders and until their successors are duly elected and qualified, subject to earlier resignation or removal. If any nominee is unable or declines to stand for election, which circumstance we do not anticipate, the Board may designate a substitute. In that event, shares represented by proxies may be voted for a substitute nominee.
Our Director Qualifications and Diversity guidelines contain the current Board membership criteria that apply to nominees recommended for a position on the Board. Under those criteria, members of the Board should have the highest professional and personal ethics and values, consistent with our longstanding values and standards. They should have broad experience at the policy-making level in business, government, education, technology or public service. They should be committed to enhancing stockholder value and should have sufficient time to perform their duties and to provide insight and practical wisdom based on experience. In addition, the
The Board believes that all the nominees named below are highly qualified and have the skills and experience required for effective service on the Board. The following table identifies our director nominees and sets forth their principal occupation and business experience during the last five years and age as of
| Age | Year First Became Director |
Position with the Company | ||||
| 66 | 2009 | Independent Director, Chairman of the Board | ||||
| 73 | 1998 | Director | ||||
| 82 | 2021 | Independent Director | ||||
| 45 | 2021 | Independent Director | ||||
| 43 | 2022 | Director, Chief Executive Officer | ||||
| 63 | 2024 | Independent Director |
| (1) | Member of the Audit Committee of the Board of Directors |
| (2) | Member of the Compensation Committee of the Board of Directors |
| (3) | Member of the |
| * | Chair of the respective committee. |
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related to gas turbine engines, turbo machinery, rocket engines and control systems. He is a board member of
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Vote Required and Recommendation
Each of the director nominees in this Proposal No. 1 is elected by the affirmative vote of a plurality of the votes properly cast on the election of directors at the Annual Meeting. This means that the six director nominees receiving the highest number of affirmative votes will be elected as directors.Withholding authority to vote your shares with respect to one or more director nominees will have no effect on the election of those nominees. Broker non-votes will have no effect on the election of the nominees. It is anticipated that Proposal No. 1 will be considered non-routine under the rules of NYSE.
All of the nominees have indicated to us that they will be available to serve as directors. In the event that any nominee should become unavailable, the proxy holders,
Apart from
If you sign your proxy or voting instruction card but do not give instructions with respect to voting for directors, your shares will be voted by
Our Board recommends a vote "FOR" each of the nominees.
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Director Compensation
Non-Employee Director Compensation Program
We have adopted a non-employee director compensation policy, which is designed to enable us to attract and retain on a long-term basis, highly qualified non-employee directors. Under the policy, our non-employee directors are eligible to receive cash retainers (which will be paid quarterly in arrears and prorated for partial years of service) and equity awards as follows:
| Annual Retainer |
||||
| Board of Directors: | ||||
| All nonemployee members | $ | 35,000 | ||
| Additional retainer for Non-Executive Chairman of the Board | $ | 20,000 | ||
| Additional Retainers for Committees | ||||
| Audit Committee: | ||||
| Chairman | $ | 20,000 | ||
| Non-Chairman members | $ | 10,000 | ||
| Compensation Committee: | ||||
| Chairman | $ | 12,000 | ||
| Non-Chairman members | $ | 6,000 | ||
| Nominating Committee: | ||||
| Chairman | $ | 8,000 | ||
| Non-Chairman members | $ | 4,000 | ||
Our policy provides that a non-employee director may choose to receive the equivalent of the total annual cash retainer for that non-employee director in a stock option to buy common stock in the Company instead of in cash, provided such election must be made in accordance with the terms of the policy, and must be made (i) by
In addition to the cash retainers, our non-employee director compensation policy provides that, upon initial appointment or election to our Board, each new non-employee director who initially joins the Board will receive a one-time grant of an option to purchase shares of our common stock with a targeted Value equal to the annual retainer fee (not including any committee retainers), or the Director Initial Grant. The Director Initial Option Grant will vest in monthly installments over the three-year period following the grant date, subject to continued service through such date. On the date of each annual meeting of stockholders, each non-employee director then in office and who will continue to serve as a member of the Board will receive a grant of an option to purchase shares of our common stock with a targeted Value equal to the annual retainer fee (not including any committee retainers), or the Director Annual Option Grant. The Director Annual Grant will vest in total on the earlier of (i) the first anniversary of the grant and (ii) the next annual meeting of stockholders, subject to continued service through such date.
In the event of a Sale Event (as defined in the Vivani 2022 Omnibus Incentive Plan, as amended from time to time, or the 2022 Plan,), the equity awards granted to the non-employee directors pursuant to this policy shall become 100% vested and exercisable.
For purposes of this policy, "Value" means the grant date fair value of the stock option (i.e., Black-Scholes value) determined in accordance with the reasonable assumptions and methodologies employed by us for calculating the fair
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value of options under Financial Accounting Standard Board, or FASB, Accounting Standards Codification Topic 718, or ASC 718.
The maximum total cash and equity compensation for non-employee directors for their service as a member of the Board cannot exceed
2024 Non-Employee Director Compensation Table
The table below sets forth information concerning total compensation that was earned by or paid to our non-employee directors during the year ended
| Fees Earned or Paid in Cash ($) |
Option |
Total ($) |
||||||||||
| $ | 70,667 | $ | 35,000 | $ | 105,667 | |||||||
| $ | 35,000 | $ | 35,000 | $ | 70,000 | |||||||
| $ | 55,000 | $ | 35,000 | $ | 90,000 | |||||||
| $ | 71,000 | $ | 35,000 | $ | 106,000 | |||||||
| $ | 37,500(3) | $ | 35,000 | $ | 72,500 | |||||||
| (1) | As of |
| (2) | The amounts reported represent the aggregate grant date fair value of the stock options granted to our directors during the 2024 fiscal year, calculated in accordance with FASB ASC Topic 718. Such grant date fair values do not take into account any estimated forfeitures. The assumptions used in calculating the grant date fair value of the stock options reported in this column are set forth in Note 2 of our Consolidated Financial Statements included in our annual report on Form 10-K for the year ended |
| (3) |
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PROPOSAL No. 2 - RATIFY ON ADVISORY BASIS theAPPOINTMENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
The Audit Committee of the Board has appointed
Stockholder ratification of the selection of
Principal accounting fees and services
The following table represents aggregate fees billed to the Company for fiscal year ended
| 2024 | 2023 | |||||||
| Audit Fees(1) | $ | 347,750 | $ | 358,450 | ||||
| Audit Related Fees(2) | $ | 172,880 | $ | 254,500 | ||||
| Tax Fees(3) | $ | - | $ | - | ||||
| All Other Fees(4) | $ | 43,505 | $ | 13,910 | ||||
| Total Fees | $ | 564,135 | $ | 626,860 | ||||
| 1. | "Audit Fees" are the aggregate fees of |
| 2. | "Audit-Related Fees" consist of fees billed for assurance and related services that are reasonably related to the performance of the audit or review of our consolidated and wholly owned subsidiary, |
| 3. | "Tax Fees" consist of fees billed for services rendered for tax compliance, tax advice, and tax planning. |
| 4. | "All Other Fees" consist of fees billed for services other than the services reported in Audit Fees, Audit-Related Fees, and Tax Fees. |
Pre-Approval Policies and Procedures
The Audit Committee reviews and pre-approves all audit and permissible non-audit services provided by the independent registered public accounting firm. These services may include audit services, audit-related services and tax services, as well as specifically designated non-audit services which, in the opinion of the Audit Committee, will not impair the independence of the independent registered public accounting firm. Pre-approval generally is provided for up to one year, and any pre-approval is detailed as to the particular service or category of services and generally is subject to a specific budget. The independent registered public accounting firm and the Company's management are required to periodically report to the Audit Committee regarding the extent of services provided by the independent registered public accounting firm in accordance with this pre-approval, including the fees for the services performed to date. In addition, the Audit Committee also may pre-approve particular services on a case-by-case basis, as necessary or appropriate.
We expect that representatives of
Vote Required and Recommendation
Approval of this Proposal No. 2 requires the affirmative vote of a majority of the votes cast at the annual meeting. Abstentions from voting on the proposal will have no effect on the proposal. It is anticipated that Proposal No.
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2 will be considered routine under the rules of the NYSE. Broker non-votes, if any, will have no effect on the proposal.
Unless otherwise directed by the stockholders, proxies will be voted FOR approval of Proposal No. 2.
The Board recommends that stockholders vote "FOR" ratification of the appointment by the Audit Committee of our Board of Directors of
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PROPOSAL NO. 3 - NON-BINDING ADVISORY VOTE ON EXECUTIVE COMPENSATION
Introduction
Under Section 14A of the Exchange Act, the Company's stockholders are entitled to vote to approve, on a non-binding advisory basis, the compensation of the Company's named executive officers as disclosed in this proxy statement in accordance with
This vote is not intended to address any specific item of compensation, but rather the overall compensation of the Company's named executive officers disclosed in the "Executive Compensation" section of this Proxy Statement. The Company believes that its compensation policies and decisions are aligned with our stockholders' interests, and that the compensation of the Company's named executive officers is designed to enable the Company to attract and retain talented and experienced executives to lead the Company successfully in a competitive environment.
Accordingly, our Board is asking the stockholders to indicate their support for the compensation of the Company's named executive officers as described in this Proxy Statement by casting a non-binding advisory vote "FOR" the following resolution:
"RESOLVED, that the compensation paid to the Company's named executive officers, as disclosed pursuant to
Item 402 of Regulation S-K, including the compensation tables and narrative discussion, is hereby APPROVED."
Because the vote is advisory, it is not binding on our Board, the Compensation Committee, or the Company. Nevertheless, the views expressed by the stockholders, whether through this vote or otherwise, are important to management and the Board and, accordingly, the Board and the Compensation Committee intend to consider the results of this vote in making determinations in the future regarding executive compensation arrangements.
Vote Required and Recommendation
Approval of this Proposal No. 3 requires the affirmative vote of a majority of the votes cast at the annual meeting. Abstentions from voting on the proposal will have no effect on the proposal. It is anticipated that Proposal No. 3 will be considered non-routine under the rules of the NYSE. Broker non-votes will have no effect.
Unless otherwise directed by the stockholders, proxies will be voted FOR approval of Proposal No. 3.
The Board recommends a vote "FOR" the approval, on a non-binding advisory basis, of the compensation of the company's named executive officers as disclosed in this Proposal No. 3.
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EXECUTIVE OFFICERS
The following table identifies our executive officers and key employees, and sets forth their current positions at the Company and their ages as of
| Positions and Offices Held with the Company | Position Held Since | Age | ||||
| Chief Executive Officer and Director | 2022 | 43 | ||||
| Chief Financial Officer | 2022 | 69 | ||||
| Chief Business Officer and Corporate Secretary | 2022 | 66 | ||||
| Chief Operating Officer | 2022 | 72 | ||||
| Chief Medical Officer | 2022 | 61 |
You should refer to "Nominees for Election" above for information about our Chief Executive Officer,
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he built operations, R&D, quality systems, manufacturing, supply chain, product development, formulation, and IT. From 2009 to 2011,
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EXECUTIVE COMPENSATION
2024 Summary Compensation Table
The following table provides information regarding the total compensation awarded to, earned by, or paid to our named executive officers, or "NEOs," during the fiscal years ended 2024 and 2023 for services rendered to us in all capacities.
Principal Position |
Year |
Salary |
Bonus |
Stock |
Option |
All Other |
Total ($) | ||||||||||||||
Chief Executive Officer |
2024 | 610,000 | - | 169,000 | 292,000 | 13,200 | 1,084,200 | ||||||||||||||
| 2023 | 597,683 | - | 93,000 | 342,000 | 11,938 | 1,044,621 | |||||||||||||||
Chief Operating Officer |
2024 | 480,000 | 135,200 | 233,600 | 13,800 | 862,600 | |||||||||||||||
| 2023 | 473,100 | 74,400 | 164,800 | 13,200 | 725,500 | ||||||||||||||||
Chief Medical Officer |
2024 | 480,000 | - | 67,600 | 116,800 | 13,800 | 678,200 | ||||||||||||||
| 2023 | 468,933 | - | 55,800 | 123,600 | 13,200 | 661,533 |
| (1) | Represents the base salary amount for each of the named executive officers for the applicable year. |
| (2) | Represents the amounts payable as discretionary cash bonuses for the applicable year. |
| (3) | The amounts reported represent the aggregate grant date fair value of the restricted stock units ("RSUs") granted to our NEOs during the applicable fiscal year, calculated in accordance with FASB ASC Topic 718. Such grant date fair values do not take into account any estimated forfeitures. The assumptions used in calculating the grant date fair value of the RSUs reported in this column are set forth in Note 2 of our Consolidated Financial Statements included in our annual report on Form 10-K for the year ended |
| (4) | The amounts reported represent the aggregate grant date fair value of the stock options granted to our NEOs during the applicable fiscal year, calculated in accordance with FASB ASC Topic 718. Such grant date fair values do not take into account any estimated forfeitures. The assumptions used in calculating the grant date fair value of the stock options reported in this column are set forth in Note 2 of our Consolidated Financial Statements included in our annual report on Form 10-K for the year ended |
| (5) | Includes employer matching contributions to the named executive officers under the Company 401(k) plan. |
Narrative Disclosure to Summary Compensation Table
Employment Agreements
None of our named executive officers have employment agreements at this time.
Executive Compensation Elements
Executive compensation of Vivani's officers is primarily comprised of base salary. Vivani provides stock option and RSU grants that generally vest over four years, but some grants may be granted with special terms at the Board's discretion. The Company offers a comprehensive benefits package to all of its employees.
Base Salaries
Our named executive officers each receive a base salary to compensate them for services rendered to our company. The base salary payable to each named executive officer is intended to provide a fixed component of compensation reflecting the executive's skill set, experience, role and responsibilities. Base salaries are reviewed annually, typically
25
in connection with our annual performance review process, approved by our board of directors or the compensation committee, and may be adjusted from time to time to realign salaries with market levels after taking into account individual responsibilities, performance, and experience.
From
Bonuses
The Company does not sponsor a formal bonus plan and none of the NEOs received any bonus for 2024.
Equity Compensation
The Company adopted the 2022 Plan, which became effective
Employee Benefits Program
Executive officers, including the NEOs, are eligible to participate in all of Vivani's employee benefit plans, including medical insurance, on the same basis as other employees, subject to applicable law. Vivani offers a choice of multiple medical, dental, and vision plans, as well as disability and life insurance. The Company also offers a 401(k) plan with a Company matching contribution which is a dollar for dollar match up to 4% with a cap equal to the 401(k) guidelines, which was
Severance and/or Change in Control Benefits
The Company adopted an Executive Severance Policy as of
| ● | Severance pay: A lump sum cash payment equal to 12 months of the participant's "base salary" (as defined in the Severance Policy) to be paid on the first practicable payroll date following the later of the (a) effective date of the separation agreement (b) and the triggering event. |
| ● | Bonus pay:A lump sum cash payment equal to the participant's target bonus for the then-current year (or the target bonus in effect immediately prior to a "change in control", if higher), prorated to reflect the number of days the participant maintained employment with the Company during the applicable year of termination, to be paid on the first practicable payroll date following the later of the (a) effective date of the separation agreement (b) and the triggering event. |
| ● | Employer payment of COBRA premiums: If the participant was participating the Company's group health plan immediately prior to the date of termination and COBRA continuation coverage has been timely elected by the participant, the same portion of premiums the Company pays for active employees for the same level of group medical, dental and vision coverage until the earliest of: (a) the date that is 12 months from the termination date; (b) the date the participant becomes eligible for group medical care coverage through other employment; or (c) the end of the participant's eligibility under COBRA for continuation coverage for medical, dental and vision care. |
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| ● | Accelerated vesting: Notwithstanding anything to the contrary in any applicable equity plan and/or equity award agreement, all stock options and other stock-based awards held by the participant that are subject solely to time-based vesting (the "Time-Based Equity Awards") shall accelerate and become fully vested and exercisable or nonforfeitable as of the later of the (a) effective date of the separation agreement or (b) the effective time of the change in control. |
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Outstanding Equity Awards at 2024 Fiscal Year-End
The following table sets forth certain information regarding outstanding equity awards held by our NEOs as of
|
Option Awards(1) |
Stock Awards(1) |
|||||||||||||||||||
| Grant Date |
Number of Securities Underlying Unexercised Options (#) Exercisable | Number of Securities Underlying Unexercised Options (#) Unexercisable | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) | Option Exercise Price ($) | Option Expiration Date | Number of Shares or Units of Stock that Have Not Vested |
Market |
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 ($)(2) |
|||||||||||
| 60,373 | - | - | 3.15 | - | - | - | - | |||||||||||||
| 95,833 | 104,167(3) | - | 1.27 | - | - | - | - | |||||||||||||
| 200,000(4) | 1.09 | - | - | - | - | |||||||||||||||
| - | - | - | - | - | - | 100,000(5) | 116,000 | |||||||||||||
| 200,000(3) | 1.81 | 05/09.2034 | ||||||||||||||||||
| 100,000(5) | 116,000 | |||||||||||||||||||
| 603,732(6) | - | - | 3.15 | - | - | - | - | |||||||||||||
| 141,499(7) | 9,434(7) | - | 3.15 | - | - | - | - | |||||||||||||
| 76,666 | 83,334(3) | - | 1.27 | - | - | - | - | |||||||||||||
| - | - | - | - | - | - | 80,000(5) | 92,800 | |||||||||||||
| - | 160,000(3) | - | 1.81 | - | - | |||||||||||||||
| - | - | - | - | - | - | 80,000(5) | 92,800 | |||||||||||||
| 241,493(3) | - | - | 3.15 | - | - | - | - | |||||||||||||
| 38,333 | 41,667(3) | - | 1.27 | - | - | - | - | |||||||||||||
| 19,166 | 20,834(3) | - | 1.27 | - | - | - | - | |||||||||||||
| - | - | - | - | - | - | 40,000(5) | 46,400 | |||||||||||||
| - | - | - | - | - | - | 20,000(5) | 23,200 | |||||||||||||
| - | 80,000(3) | - | 1.81 | - | - | - | - | |||||||||||||
| - | - | - | - | - | - | 40,000(5) | 46.400 | |||||||||||||
| (1) | All grants to NEOs for 2022 through 2024 were issued under the 2022 Plan. Options granted to NEOs prior to 2022 were granted under the 2014 Employee Incentive Plan, as amended from time to time (the "2014 Plan"), and were replaced by options under the 2022 Plan, as converted under the terms of the Merger. All time-based stock awards are subject to certain acceleration of vesting terms under the Severance Policy, as described above. |
| (2) | The market value of the outstanding restricted stock units is based on the market price of the Company's common stock of |
| (3) | This option vests 25% on the one-year anniversary of the grant date, and the remainder vests in equal monthly tranches over the next three years, subject to the applicable NEO's continued service through ach applicable vesting date. |
| (4) | This performance-based option has 4-year term. It will vest 100% if and when the Company's stock price closes at |
| (5) | This performance-based RSU award has 4-year term. It will vest one-third if and when the Company's stock price closes at |
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| agreement) meets or exceeds |
| (6) | This option vests 50% on the grant date, 25% at six-month anniversary of the grant date and the remainder vests monthly over the following two and one half years, in each case subject to the applicable NEO's continued service through each applicable vesting date. |
| (7) | This option vests in equal monthly installments over the first four years following the grant date, subject to the applicable NEO's continued service through each applicable vesting date. |
Equity Compensation Plan Information
The following table provides information as of
| Equity Compensation Plan Information | ||||||||||||
| Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants and rights (#) |
Weighted |
Number of securities remaining available for future issuance under equity compensation plans (#) |
|||||||||
| Equity compensation plans approved by security holders | 7,504,230(2) | $ | 2.52 | 2,165,958(3) | ||||||||
| Equity compensation plans not approved by security holders | - | $ | - | - | ||||||||
| Total | 7,504,230 | $ | 2.52 | 2,165,958 | ||||||||
| (1) | The weighted average exercise price is calculated based solely on outstanding stock options. This weighted-average exercise price does not reflect shares subject to RSUs. |
| (2) | Consists of options and RSUs outstanding under the 2022 Plan, including options granted under the 2022 Plan that replaced options originally granted under the 2014 Plan, as converted under the terms of the Merger. |
| (3) | Consists of shares available for future issuance under the 2022 Plan. Following the Merger, we no longer make grants under the 2014 Plan. The shares of common stock underlying any awards granted under the 2022 Plan that are forfeited, canceled, reacquired by us prior to vesting, satisfied without the issuance of stock, or otherwise terminated (other than by exercise) and the shares of common stock that are withheld upon exercise of a stock option or settlement of such award to cover the exercise price or tax withholding will be added to the shares of common stock available for issuance under the 2022 Plan. |
Pay Versus Performance
As required by Item 402(v) of Regulation S-K, we are providing information about the relationship between executive compensation actually paid (as calculated in accordance with Item 402(v) of Regulation S-K) to our Principal Executive Officer(s) (PEO(s)), and on an average basis, our other Non-Executive Officers (NEOs) or non-PEO NEOs in each case, as determined under
29
The following table shows the total compensation for our PEO(s) and non-PEO NEOs for the fiscal years 2022 through 2024 as set forth in the Summary Compensation Table, the "compensation actually paid" to our PEO(s), and on an average basis, our other non-PEO NEOs (in each case, as determined under
| Fiscal Year |
Summary Compensation Table Total |
Compensation Actually Paid to PEO 1 (Dunbar)4 |
Summary Compensation Total for PEO 2 (Mendelsohn) 1, 3 |
Compensation Actually Paid to PEO 2 (Mendelsohn) 5 |
Average Summary Compensation Table Total for non-PEO NEOs 2,3 |
Average Compensation Actually Paid to non-PEO NEOs5 |
Value of Initial Fixed |
Net Income | |||||||||||||||||||||||||
| 2024 | $ | 0 | $ | 0 | $ | 1,084,200 | $ | 915,162 | $ | 770,400 | $ | 686,961 | $ | 28.02 | ($ | 23,486,000 | ) | ||||||||||||||||
| 2023 | $ | 0 | $ | 0 | $ | 1,044,621 | $ | 954,818 | $ | 693,517 | $ | 676,591 | $ | 24.64 | ($ | 25,652,000 | ) | ||||||||||||||||
| 2022 | $ | 382,153 | $ | 379,269 | $ | 312,014 | $ | 292,957 | $ | 321,605 | $ | 70,736 | $ | 20.52 | ($ | 13,889,000 | ) | ||||||||||||||||
| 1. |
| 2. | The Company's non-PEO NEOs (the "Reported NEOs") for the indicated fiscal years were as follows: |
| ● | 2024: |
| ● | 2023: |
| ● | 2022: |
| 3. | Amounts reported in these columns represent (i) the total compensation reported in the Summary Compensation Table for the indicated fiscal year in the case of our PEO(s) and (ii) the average of the total compensation reported in the Summary Compensation Table for the Reported NEOs in the indicated year for such years. |
| 4. | Amounts reported in these columns represent the compensation actually paid to our PEO(s) for the indicated fiscal year, as calculated under Item 402(v) of Regulation S-K based on their total compensation reported in the Summary Compensation Table for the indicated fiscal years and adjusted pursuant to Item 402(v) of Regulation S-K. For 2024, the compensation actually paid to |
| PEO: Adam Mendelsohn |
||||
| Fiscal Year | 2024 | |||
| SCT Total | $ | 1,084,200 | ||
| - Grant Date Fair Value of Option Awards and Stock Awards Granted in Fiscal Year | ($ | 461,000 | ) | |
| + Fair Value at Fiscal Year-End of Outstanding and Unvested Option Awards and Stock Awards Granted in Fiscal Year | $ | 281,363 | ||
| + Change in Fair Value of Outstanding and Unvested Option Awards and Stock Awards Granted in Prior Fiscal Years | ($ | 1,982 | ) | |
| + Fair Value at Vesting of Option Awards and Stock Awards Granted in Fiscal Year That Vested During Fiscal Year | $ | 0 | ||
| + Change in Fair Value as of Vesting Date of Option Awards and Stock Awards Granted in Prior Fiscal Years For Which Applicable Vesting Conditions Were Satisfied During Fiscal Year | $ | 12,580 | ||
| - Fair Value as of Prior Fiscal Year-End of Option Awards and Stock Awards Granted in Prior Fiscal Years That Failed to Meet Applicable Vesting Conditions During Fiscal Year | $ | 0 | ||
| + Dividends and Earnings paid on stock or options in 2024 prior to vesting date | $ | 0 | ||
| Compensation Actually Paid | $ | 915,162 | ||
Equity award values are calculated in accordance with FASB ASC Topic 718, and the valuation assumptions used to calculate these fair values did not materially differ from those disclosed at the time of grant.
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| 5. | Amounts reported in this column represent the compensation actually paid to the Reported NEOs in the indicated fiscal year, as calculated under Item 402(v) of Regulation S-K based on the average total compensation for such NEOs reported in the Summary Compensation Table for the indicated fiscal year and adjusted pursuant to Item 402(v) of Regulation S-K. For 2024, the compensation actually paid to the Reported NEOs was based on the average total compensation for such NEOs reported in the 2024 Summary Compensation Table and adjusted as shown in the table below: |
| Fiscal Year |
AVG |
|||
| SCT Total | $ | 770,400 | ||
| - Grant Date Fair Value of Option Awards and Stock Awards Granted in Fiscal Year | ($ | 276,600 | ) | |
| + Fair Value at Fiscal Year-End of Outstanding and Unvested Option Awards and Stock Awards Granted in Fiscal Year | $ | 168,818 | ||
| + Change in Fair Value of Outstanding and Unvested Option Awards and Stock Awards Granted in Prior Fiscal Years | $ | 5,778 | ||
| + Fair Value at Vesting of Option Awards and Stock Awards Granted in Fiscal Year That Vested During Fiscal Year | $ | 0 | ||
| + Change in Fair Value as of Vesting Date of Option Awards and Stock Awards Granted in Prior Fiscal Years For Which Applicable Vesting Conditions Were Satisfied During Fiscal Year | $ | 18,565 | ||
| - Fair Value as of Prior Fiscal Year-End of Option Awards and Stock Awards Granted in Prior Fiscal Years That Failed to Meet Applicable Vesting Conditions During Fiscal Year | $ | 0 | ||
| + Dividends and Earnings paid on stock or options in 2024 prior to vesting date | $ | 0 | ||
| Compensation Actually Paid | $ | 686,961 | ||
Please see footnote 1 for the Reported NEOs included in the average for each indicated fiscal year.
Equity award values are calculated in accordance with FASB ASC Topic 718, and the valuation assumptions used to calculate these fair values did not materially differ from those disclosed at the time of grant.
| 6. | Pursuant to Item 402(v) of Regulation S-K, the comparison assumes |
Relationship Between "Compensation Actually Paid" and Performance Measures
Compensation actually paid ("CAP"), as calculated pursuant to Item 402(v) of Regulation S-K, reflects cash compensation actually paid as well as changes to the fair values of equity awards during the years shown in the table based on year-end or vesting date stock prices, and various accounting valuation assumptions. Due to how CAP is calculated, the CAP as reported for each year does not reflect the actual amounts earned by our NEOs from their equity awards. CAP generally fluctuates annually due to the change in our stock price from year to year as well as varying levels of actual achievement of performance goals.
Because CAP does not reflect the actual amount earned by our NEOs on their equity compensation, we do not use this measure for understanding how NEO pay aligns with our company performance.
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Below are graphs showing the relationship of "Compensation Actually Paid" to our PEO(s) and the Reported NEOs for our fiscal years 2022 through 2024 to (1) our total stockholder retuand (2) our net income:
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table shows information known to us about beneficial ownership of our common stock by:
| ● | each of our current directors; |
| ● | each of our current named executive officers; |
| ● | all of our directors and executive officers as a group; and |
| ● | each person known by us to beneficially own 5% or more of our common stock. |
The column entitled "Percentage Beneficially Owned" is based on a total of 59,234,903 shares of our common stock outstanding as of
| Number of Shares Beneficially Owned |
Percentage of Shares Beneficially Owned |
|||
| 5% or Greater Stockholders | ||||
| 5,597,123 | 9.4% | |||
| Directors and Executive Officers | ||||
| 23,428,964 | 36.4% | |||
| 3,922,612 | 6.6% | |||
| 1,212,613 | 2.0% | |||
| 887,988 | 1.5% | |||
| 320,164 | * | |||
| Lisa Porters(7) | 331,492 | * | ||
| 49,742 | * | |||
| 204,714 | * | |||
| 416,625 | * | |||
| 166,083 | * | |||
| All current directors and executive officers as a group (10 persons)(12) | 30,941,007 | 46.4% |
| * | Represents less than one percent. |
| 1. | Based on the Schedule 13D filed on |
| 2. | Includes (i) 18,373,169 shares of common stock, 4,462,180 shares of common stock issuable upon exercise of warrants (that excludes xxx warrants that expired on April/ |
| 3. | Includes 3,695,573 shares of common stock controlled by |
33
| 4. | Includes (i) 1,086,487 shares of common stock controlled by Mr. |
| 5. | Includes 841,331 shares of common stock issuable upon exercise of options by |
| 6. | Includes 197,482 shares of common stock owned by |
| 7. | Includes 306,492 shares of common stock issuable upon the exercise of options by |
| 8. | Includes 2,166 shares of common stock owned by |
| 9. | Includes 203,502 shares of common stock issuable upon the exercise of options by Mr. |
| 10. | Includes 51,000 shares of common stock owned by Mr. |
| 11. | Includes 15,000 shares of common stock owned by |
| 12. | Includes the directors and executive officers as a group. |
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Other than the transactions described below, since
In addition to the compensation arrangements, including employment, termination of employment and change in control arrangements discussed above in the sections titled "Director Compensation" and "Executive Compensation," Vivani describes below transactions and series of similar transactions, as of Vivani's fiscal year ended
| ● | the amounts involved exceeded or will exceed |
| ● | any of our directors, nominees for director, executive officers or holders of more than 5% of our outstanding capital stock, or any immediate family member of, or person sharing the household with, any of these individuals or entities, had or will have a direct or indirect material interest. |
Private Sale Transaction with
2024 Transaction
On
2025 Transaction
We entered into a share purchase agreement, effective
Indemnification Agreements
We have entered into and in the future plan to enter into agreements to indemnify our directors and executive officers. These agreements, among other things, require us to indemnify these individuals for certain expenses (including attorneys' fees), judgments, fines and settlement amounts reasonably incurred by such person in any action or proceeding.
35
STOCKHOLDER PROPOSALS
A stockholder who would like to have a proposal considered for inclusion in our 2026 proxy statement must submit in accordance with procedures outlined Rule 14a-8 under the Exchange Act so that it is received by us no later than
Our bylaws also provide separate notice procedures to recommend a person for nomination as a director or to propose business to be considered by stockholders at a meeting. To be considered timely, the required notice must be in writing and received by our corporate secretary at our principal executive offices no earlier than
In addition to satisfying the foregoing requirements, stockholders who intend to solicit proxies in support of a stockholder nominee must also comply with the additional requirements of Rule 14a-19(b) under the Exchange Act.
36
STOCKHOLDER MATTERS
Our Board does not know of any other matters to be presented at the Annual Meeting. If any additional matters properly do come before the Annual Meeting, however, it is the intention of the persons named as proxy agents in the enclosed proxy card to vote on such matters as recommended by the Board, or if no recommendation is given, in their own discretion.
Our consolidated financial statements for the fiscal year ended
If you and other residents at your mailing address own shares in street name, your broker or bank may have sent you a notice that your household will receive only one copy of proxy materials for each company in which you hold shares through that broker or bank. This practice of sending only one copy of proxy materials is known as householding. If you did not respond that you did not want to participate in householding, you were deemed to have consented to the process. If the foregoing procedures apply to you, your broker has sent one copy of our Proxy Statement to your address. If you want to receive separate copies of the proxy materials in the future, or you are receiving multiple copies and would like to receive only one copy per household, you should contact your stockbroker, bank or other nominee record holder, or you may contact us at the address or telephone number below. In any event, if you did not receive an individual copy of this proxy statement, we will send a copy to you if you address your written request to
It is important that your shares of our common stock be represented at the Annual Meeting, regardless of the number of shares that you hold. You are, therefore, requested to vote by telephone or by using the Internet as instructed on the enclosed proxy card or execute and return, at your earliest convenience, the enclosed proxy card in the envelope that has also been provided.
THE BOARD OF DIRECTORS
Copies of the documents referred to above that appear on our website are also available upon request by any stockholder addressed to our Corporate Secretary,
37
DELINQUENT SECTION 16(a) REPORTS
Section 16(a) of the Exchange Act requires our directors and executive officers, and persons who beneficially own more than 10% of our common stock, to file with the
Based solely on our review of the reports provided to us and on representations received from our directors and executive officers, we believe that all of our executive officers, directors and persons who beneficially own more than 10% of our common stock complied with all Section 16(a) filing requirements, except for (i) Form 4 filed for
38
REPORT OF THE AUDIT COMMITTEE
The Audit Committee of the Board of Directors (the "Audit Committee") has furnished this report concerning the independent audit of the Company's consolidated financial statements. Each member of the Audit Committee meets the enhanced independence standards established by the Sarbanes-Oxley Act of 2002 and rulemaking of the
The Audit Committee's responsibilities include assisting the Board of Directors regarding the oversight of the integrity of the Company's consolidated financial statements, the Company's compliance with legal and regulatory requirements, the independent registered public accounting firm's qualifications and independence, and the performance of the independent registered public accounting firm.
In fulfilling its responsibilities, the Audit Committee of the Board has:
| ● | reviewed and discussed the Company's audited consolidated financial statements for the year ended |
| ● | discussed with the Company's independent auditors the matters required to be discussed by Statement on Auditing Standards No. 1301, "Communications with Audit Committees", as adopted by the |
| ● | received and reviewed the written disclosures and letter from the independent auditors required by the PCAOB regarding the independent auditors' communications with the Audit Committee concerning independence and has discussed with |
In addition, the Audit Committee has regularly met separately with management and with
Based upon the reviews and discussions described above, the Audit Committee recommended to the Board that the audited consolidated financial statements be included in the Company's Annual Report on Form 10-K for the year ended
AUDIT COMMITTEE OF THE BOARD
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Attachments
Disclaimer
ProAssurance Reports Results for First Quarter 2025
Additional Proxy Soliciting Materials (Form DEFA14A)
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