WASHINGTON,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of the Securities
Exchange
Act of 1934
Filed by
the Registrant þ
Filed by
a Party other than the Registrant ¨
Check the
appropriate box:
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Preliminary
Proxy Statement
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Confidential,
for Use of the Commission Only
(as
permitted by Rule 14a-6(e)(2))
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Definitive
Proxy Statement
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Definitive
Additional Materials
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Soliciting
Material Pursuant to Rule
14a-12
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Pressure
BioSciences, Inc.
(Name of
Registrant as Specified In Its Charter)
(Name of
Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
þ No fee
required.
¨ Fee computed on table
below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
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Fee paid previously with
preliminary materials.
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Check box if any part of the fee
is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the
filing for which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the form or schedule
and the date of its filing.
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Date
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Pressure
BioSciences, Inc.
14
Norfolk Avenue
South
Easton, MA 02375
(508)
230-1828 (T)
(508)
230-1829 (F)
www.pressurebiosciences.com
May 14,
2010
Dear
Stockholder:
You are
cordially invited to attend the Special Meeting in Lieu of the Annual Meeting of
Stockholders (the “Meeting”) of Pressure BioSciences, Inc. (the “Company”) to be
held on Friday, June 25, 2010 at 2:00 p.m. at the Company’s principal executive
offices located at 14 Norfolk Avenue, South Easton, MA 02375.
Detailed
information about the Meeting and the proposals to be acted upon is included in
the accompanying notice of Meeting and proxy statement. The Company’s 2009
Annual Report to Stockholders also accompanies this letter.
Whether
or not you plan to attend the Meeting, you can ensure your shares of the
Company’s common stock are voted at the Meeting by submitting your instructions
in writing by returning the enclosed proxy card. If you plan to attend the
Meeting in person, please remember to bring a form of personal identification
with you and, if you are acting as a proxy for another stockholder, please bring
written confirmation from the record owner that you are acting as a
proxy.
The
Company is taking advantage of the Securities and Exchange Commission (“SEC”)
rules that allow companies to furnish proxy materials to their stockholders on
the Internet. The Company believes this e-proxy process expedites stockholders’
receipt of proxy materials, while lowering the costs of delivery and reducing
the environmental impact of the Meeting. Stockholders receiving e-proxy
materials have been sent a notice containing instructions on how to access the
proxy statement and annual report over the Internet and how to
vote.
Please
note that this year the rules regarding how brokers may vote shares held in
“street name” have changed. If your shares are held in street name, in addition
to other non-routine matters, brokers may no longer vote your shares on the
election of directors in the absence of your specific instructions as to how to
vote. Proposals 1 and 2 presented in this Proxy Statement are considered
non-routine matters. If your shares are held in street name, it is important
that you provide instructions to your broker regarding the voting of your
shares.
Sincerely,
R. Wayne
Fritzsche
Chairman
of the Board of Directors
PRESSURE
BIOSCIENCES, INC.
NOTICE
OF SPECIAL MEETING
IN
LIEU OF THE ANNUAL MEETING OF STOCKHOLDERS
To
be Held on June 25, 2010
Important
Notice Regarding the Availability of Proxy Materials for the
Special
Meeting in Lieu of the Annual Meeting of Stockholders to be Held on June 25,
2010.
The
Proxy Statement and 2009 Annual Report are available at
http://www.pressurebiosciences.com/investors.html
NOTICE is
hereby given that a Special Meeting in Lieu of the Annual Meeting of
Stockholders (the “Meeting”) of Pressure BioSciences, Inc. (“PBI” or the
“Company”) will be held on Friday, June 25, 2010, at 2:00 p.m. at the Company’s
principal executive offices located at 14 Norfolk Avenue, South Easton, MA
02375, for the following purposes, as more fully described in the proxy
statement accompanying this notice:
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1.
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To elect two Class II Directors
to hold office until the 2013 Annual Meeting of Stockholders and until
their successors are duly elected and
qualified.
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2.
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To consider and vote upon a
proposal to amend the Company’s 2005 Equity Incentive Plan to increase the
number of shares of common stock available for issuance under the plan
from 1,500,000 to 1,800,000, an increase of
300,000.
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3.
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To consider and vote upon any
matters incidental to the foregoing purposes and any other matters which
may properly come before the Meeting or any adjourned session
thereof.
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The Board
of Directors has fixed the close of business on May 7, 2010 as the record date
for determining the stockholders entitled to notice of, and to vote at, the
Meeting.
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By
Order of the Board of Directors:
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Richard
T. Schumacher
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Clerk
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South
Easton, Massachusetts
May 14,
2010
IMPORTANT
Whether
or not you intend to attend the Meeting in person, please ensure that your
shares of the Company’s common stock are present and voted at the Meeting by
submitting your instructions in writing by completing, signing, dating, and
returning the enclosed proxy card to our tabulation agent in the enclosed,
self-addressed envelope.
This
notice, proxy statement and form of proxy card are being first mailed to
stockholders of the Company on or about May 14, 2010.
PRESSURE
BIOSCIENCES, INC.
PROXY
STATEMENT
FOR
THE SPECIAL MEETING IN LIEU OF
THE
ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD ON JUNE 25, 2010
General
This
proxy statement is being furnished in connection with the solicitation of
proxies by the Board of Directors of Pressure BioSciences, Inc., a Massachusetts
corporation, with its principal executive offices located at 14 Norfolk Avenue,
South Easton, MA 02375, for use at the Special Meeting in Lieu of the Annual
Meeting of Stockholders to be held on Friday, June 25, 2010 at 2:00 PM and at
any adjournments or postponements thereof (the “Meeting”) for the purposes set
forth herein and in the accompanying Notice of Special Meeting in Lieu of Annual
Meeting of Stockholders. In this proxy statement we refer to Pressure
BioSciences, Inc. as “PBI,” “the Company,” “we,” or “us.”
The
enclosed proxy relating to the Meeting is solicited on behalf of the Company’s
Board of Directors (the “Board of Directors”) and the cost of such solicitation
will be borne by the Company. Certain of the Company’s officers and regular
employees may solicit proxies by correspondence, telephone, or in person,
without extra compensation. We will also pay to banks, brokers, nominees, and
certain other fiduciaries their reasonable expenses incurred in forwarding proxy
material to the beneficial owners of securities held by them. It is expected
that this proxy statement, the accompanying notice of Meeting, proxy card, and
annual report to stockholders will be sent or given to stockholders on or about
May 14, 2010.
Pursuant
to rules adopted by the SEC, the Company has elected to provide access to its
proxy materials over the Internet. Accordingly, the Company is sending a Notice
of Internet Availability of Proxy Materials (the “Notice”) to stockholders.
Stockholders receiving the notice will have the ability to access the proxy
materials on the website referred to in the Notice or request to receive a
printed set of the proxy materials. Instructions on how to access the proxy
materials over the Internet or to request a printed copy may be found in the
Notice.
Voting
Securities and Record Date
Stockholders
of record of the Company’s common stock, $0.01 par value (the “Common Stock”),
at the close of business on May 7, 2010, the record date for the Meeting, will
be entitled to receive notice of, and to vote at, the Meeting. As of April 28,
2010, there were issued and outstanding 2,406,311 shares of Common Stock, all of
which are entitled to vote. Each share of Common Stock outstanding at the close
of business on the record date is entitled to one vote on each matter that is
voted. In addition, as of April 28, 2010, there were issued and outstanding
275,695 shares of Series A Convertible Preferred Stock, par value $0.01 per
share and 88,711 shares of Series B Convertible Preferred Stock, par value $0.01
per share, none of which are entitled to vote at the Meeting.
Quorum
A quorum,
consisting of the holders of a majority of the shares of Common Stock issued,
outstanding, and entitled to vote at the Meeting, will be required to be present
in person or by proxy for the transaction of business at the Meeting. Votes of
stockholders of record present at the Meeting in person or by proxy,
abstentions, and “broker non-votes” (as defined below) are counted as present or
represented at the Meeting for the purpose of determining whether a quorum
exists. A “broker non-vote” occurs when a broker, bank, or representative
(“broker or representative”) does not vote on a particular matter because it
either does not have discretionary voting authority on that matter or it does
not exercise its discretionary voting authority on that matter.
Manner
of Voting
Shares
entitled to be voted at the Meeting can only be voted if the stockholder of
record of such shares is present at the Meeting, returns a signed proxy card.
Shares represented by valid proxy will be voted in accordance with your
instructions.
A
stockholder of record who votes his or her shares by returning a proxy card, may
revoke the proxy at any time before the stockholder’s shares are voted at the
Meeting by written notice to the Clerk of the Company received prior to the
Meeting, by executing and returning a later dated proxy card prior to the
Meeting, or by voting by ballot at the Meeting.
If you
hold your shares through a broker or representative, you can only vote your
shares in the manner prescribed by the broker or representative. Detailed
instructions from your broker or representative will generally be included with
your proxy material. These instructions may also include information on whether
your shares can be voted by telephone or over the Internet or the manner in
which you may revoke your votes. If you choose to vote your shares by telephone
or over the Internet, you should follow the instructions provided by the broker
or representative.
The votes
of stockholders present in person or represented by proxy at the Meeting will be
tabulated by an inspector of elections appointed by the Company. Shares
represented by proxy will be voted in accordance with your specific
instructions. If you sign and return your proxy card without indicating
specific instructions, your shares will be voted FOR the election of nominees as
Class II directors as described herein under “Proposal No. 1 – Election of
Directors” and the amendment to the Company’s 2005 Equity Incentive Plan
described herein “Proposal No. 2 – Amendment to the Pressure BioSciences, Inc.
2005 Equity Incentive Plan”. If any other matters shall properly come before
the Meeting, the authorized proxy will be voted by the proxies in accordance
with their best judgment.
If you
hold your shares as a beneficial owner rather than a stockholder of record, your
broker or representative will vote the shares that it holds for you in
accordance with your instructions (if timely received) or, in the absence of
such instructions, your broker or representative may vote on certain matters for
which it has discretionary voting authority. The election of directors in
Proposal No. 1 and the approval of the amendment to the Company’s 2005 Equity
Incentive Plan in Proposal No. 2 are considered “non-routine” matters and your
broker or representative does not have discretionary voting authority with
respect to those matters. Therefore, the shares that do not receive voting
instructions will be treated as “broker non-votes.”
Required
Vote
The
affirmative vote of the holders of a plurality of the votes cast by stockholders
present in person or represented by proxy at the Meeting and entitled to vote
thereon is required to elect the nominees as Class II Directors of the Company.
The affirmative vote of a majority of the shares of Common Stock present in
person or represented by proxy at the Meeting and entitled to vote thereon is
required to approve the amendment to the Company’s 2005 Equity Incentive Plan.
Abstentions and broker non-votes are included in the number of shares present or
represented for purposes of a quorum, but are not considered as shares voting or
votes cast with respect to any matter presented at the Meeting. As a result,
abstentions and broker non-votes will not have any effect on the proposals to
elect directors and to amend the Company’s 2005 Equity Incentive
Plan.
PROPOSAL
NO. 1
ELECTION
OF DIRECTORS
At the
Meeting, two Class II Directors are to be elected to serve until the 2013 Annual
Meeting of Stockholders and until their respective successors has been duly
elected and qualified. The Board of Directors, upon the recommendation of the
Nominating Committee, has nominated J. Donald Payne and Alan D. Rosenson for
election as Class II Directors. Mr. Payne and Mr. Rosenson are currently
directors of the Company and have not been nominated pursuant to any arrangement
or understanding with any person.
The
Company’s Restated Articles of Organization, as amended (the “Articles”), and
Amended and Restated Bylaws, as amended (the “Bylaws”), provide that the Board
of Directors shall be divided into three classes. At each Annual Meeting of
Stockholders, the directors elected to succeed those whose terms expire are
identified as being in the same class as the directors they succeed and are
elected to hold office for a term to expire at the third Annual Meeting of
Stockholders after their election, and until their respective successors are
duly elected and qualified, unless an adjustment in the term to which an
individual director shall be elected is made because of a change in the number
of directors.
The
Articles and Bylaws do not require the stockholders to elect any directors in a
class the term of office of which extends beyond the Meeting. The term of
office of Messrs. Payne and Rosenson, the Company’s Class II Directors, expires
at the Meeting. The terms of office of the Class I Directors and Class III
Director, comprised of Calvin A. Saravis, R. Wayne Fritzsche, and Richard T.
Schumacher, continue after the Meeting.
At the
Meeting, it is the intention of the persons named as proxies to vote for the
election of Messrs. Payne and Rosenson as Class II Directors. In the
unanticipated event that either or both Mr. Payne and/or Mr. Rosenson should be
unable to serve, the persons named as proxies will vote the proxy for such
substitute(s), if any, as the present Board of Directors may designate or the
present Board of Directors may reduce the number of directors.
Vote
Required to Elect the Nominees as Director
The
affirmative vote of the holders of a plurality of the votes cast by stockholders
present in person or represented by proxy at the Meeting and entitled to vote
thereon is required for the election of J. Donald Payne and Alan D. Rosenson as
Class II Directors of the Company.
The Board of Directors recommends
that stockholders vote FOR the election of J. Donald Payne and Alan D. Rosenson
as Class II Directors of the Company.
Information
on Nominees and Other Directors
The
following table sets forth certain information as of the date of this proxy
statement about the nominee and each of the directors whose term extends beyond
the Meeting, including the year in which each nominee’s term would expire, if
elected.
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Name
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Age
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Position
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Director
Since
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Year Term Expires,
if Elected, and Class
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R.
Wayne Fritzsche (1)
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61
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Chairman
of the Board
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2003
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2012
Class
I
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Calvin
A. Saravis, Ph.D. (2)
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80
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Director
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1986
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2012
Class
I
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J.
Donald Payne* (3)
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54
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Director
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2003
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2013
Class
II
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Alan
D. Rosenson* (3)
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45
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Director
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2009
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2013
Class
II
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Richard
T. Schumacher
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59
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Director,
President, Chief Executive Officer, Treasurer, and Clerk
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1978
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2011
Class
III
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*Nominees
for Class II Director.
(1)
Member of the Compensation Committee and Nominating Committee
(2)
Member of the Audit Committee, Compensation Committee, Nominating Committee, and
Chairman of the Scientific Advisory Board
(3)
Member of the Audit Committee, Compensation Committee, and Nominating
Committee
In
selecting members for our Board of Directors, we consider each individual’s
unique and diversified background and expertise. We believe that selecting a
Board with a wide range of talents and skills provides a functional diversity
that allows our Board to provide strong leadership. The following noteworthy
experience, qualifications, attributes and skills for each Board member,
together with the biographical information for each nominee described below, led
to our conclusion that the person should serve as a director of PBI in light of
our business and structure:
Mr. R.
Wayne Fritzsche, the Chairman of our Board, provides substantial experience and
skills in financial, management and operational matters. Mr. Fritzsche is the
founder and current president of Fritzsche & Associates, Inc., a consulting
firm that provides strategic, financial, and scientific consulting to medical
companies in the life sciences and healthcare industries. Since 2003, Mr.
Fritzsche has also served as interim President of Chemokine Pharmaceutical
Company, Inc.
Mr.
Richard T. Schumacher, the Company’s founder, provides valuable operational,
sales and management expertise and experience and has significant knowledge of
the Company’s technology and products. Prior to founding the company, Mr.
Schumacher spent over 16 years working in the clinical research setting. In the
more than 30 years since the Company’s formation, Mr. Schumacher has served the
Company in various roles, including President, Chief Executive Officer and
Chairman.
Dr.
Calvin Saravis provides substantial expertise and experience in the science and
technology of the Company’s products. Dr. Saravis has over 20 years of
experience as a professor and researcher at various educational institutions and
has served on the Company’s Scientific Advisory Board since 2003.
Mr. J.
Donald Payne and Mr. Alan D. Rosenson each provide a wealth of knowledge and
experience in financial, accounting and administrative matters. Mr. Payne is
currently the President of Nanospectra Biosciences, Inc., a privately-held
medical device company developing products for cancer since 2001 and has nearly
20 years of experience managing public and private life science companies. He
is also Certified Public Accountant in Texas, and a member of the AICPA and
Financial Executives Institute.
Mr.
Rosenson is the founder of ALJAR Investments, Inc, an investment management
firm, and has over 20 years of experience providing consulting services to
high-level executives and business owners through his company Consulting
Innovations, Inc.
Mr. R. Wayne Fritzsche has
served as a director and Chairman of the Board of Directors of the Company since
October 2, 2003. Mr. Fritzsche has served as a member of the Company’s
Scientific Advisory Board since 1999. Mr. Fritzsche is the founder of Fritzsche
& Associates, Inc., a consulting firm that provides strategic, financial,
and scientific consulting to medical companies in the life sciences and
healthcare industries, and has served as its President since 1991. He was a
founder in The Immune Response Company (IMNR) along with Dr. Jonas Salk. Since
2003, Mr. Fritzsche has also served as interim President of Chemokine
Pharmaceutical Company, Inc. (formerly PGBP Pharmaceuticals), a small molecule
discovery company. From 2001 until 2004, Mr. Fritzsche has served as a board
member of Opexa Pharmaceuticals, a multiple sclerosis and cell immunology
therapy company, and Vascular Sciences, Inc., an extracorporeal, macular
degeneration company. He also previously served as a board member of Intelligent
Medical Imaging, an automated microscopic imaging company, from 1994 to 1997,
Clarion Pharmaceuticals, a drug development company, from 1994 to 1996, Nobex
Pharmaceuticals, a drug delivery firm, from 1996 to 2001, Cardio Command, Inc.,
a transesophageal cardiac monitoring and pacing firm, from 1999 to 2001, and
Hesed BioMed, an antisense oligonucleotide and catalytic antibody company, from
2000 to 2002. Mr. Fritzsche is a founder of Transplan, Inc., an organ
transplant device company whose primary focus is in heart transport. Mr.
Fritzsche holds a BA from Rowan University, and an MBA from the University of
San Diego.
Dr. Calvin A.
Saravis has served as a
director of the Company since 1986. Dr. Saravis has also served as Chairman of
the Company’s Scientific Advisory Board since 2003. From 1984 to 1998 he was an
Associate Professor of Surgery (Biochemistry) at Harvard Medical School
(presently emeritus) and
Chief, Division of Immunology, Department of Surgery, Harvard Medical School,
Boston City Hospital; and from 1983 to 1999, he was an Associate Research
Professor of Pathology at Boston University School of Medicine (presently
emeritus). From 1971 to 1997, Dr. Saravis was a Senior Research Associate at the
Mallory Institute of Pathology and from 1979 to 1997 he was a Senior Research
Associate at the Cancer Research Institute-New England Deaconess Hospital. Dr.
Saravis received his Ph.D. in immunology and serology from Rutgers
University.
Mr. J. Donald Payne has
served as a director of the Company since December 30, 2003. Mr. Payne has
served as President and a Director of Nanospectra Biosciences, Inc., a
privately-held medical device company developing products for cancer since 2001.
Prior to that, Mr. Payne held various executive positions in finance and
administration of public and private life science companies since 1992, served
as a financial executive in the energy industry from 1980 through 1990, and was
in public accounting from 1976 to 1980. Mr. Payne received an MBA from Rice
University in 1992 and a BBA from Texas A&M University in 1976. He is a
Certified Public Accountant in Texas, and a member of the AICPA and Financial
Executives Institute.
Mr. Alan D. Rosenson has
served as a director of the Company since September 15, 2009. Mr. Rosenson
currently serves as President of ALJAR Investments, Inc, an investment firm
which he founded in 1994 and through which he manages stock and bond portfolios
for private clients. In 1987, Mr. Rosenson founded Consulting Innovations,
Inc., an information systems firm, that currently provides consulting services
and technology training to high-level executives and business owners. Mr.
Rosenson has been a volunteer for various charities from 1990 to the present.
Mr. Rosenson earned his B.A. degree from Indiana University with honors, and his
MBA degree from Washington University in St. Louis.
Mr. Richard T. Schumacher,
the founder of the Company, has served as a director of the Company since 1978.
He has served as the Company’s Chief Executive Officer since April 16, 2004 and
President since September 14, 2004. He previously served as Chief Executive
Officer and Chairman of the Board of the Company from 1992 to February 2003.
From July 9, 2003 until April 14, 2004 he served as a consultant to the Company
pursuant to a consulting agreement. He served as President of the Company from
1986 to August 1999. Mr. Schumacher served as the Director of Infectious Disease
Services for Clinical Sciences Laboratory, a New England-based medical reference
laboratory, from 1986 to 1988. From 1972 to 1985, Mr. Schumacher was employed by
the Center for Blood Research, a nonprofit medical research institute associated
with Harvard Medical School. Mr. Schumacher received a B.S. in Zoology from the
University of New Hampshire.
Corporate
Governance
Board of Directors and Committee
Meetings; Annual Meeting Attendance. The Board of Directors held twelve
(12) meetings during the year ended December 31, 2009. Each director attended
at least 75% of all meetings of the Board of Directors and each committee of the
Board of Directors on which they served. All of the Company’s directors are
encouraged to attend the Company’s annual meetings of Stockholders. All five (5)
Company directors were in attendance at the Company’s 2009 Special Meeting in
Lieu of the Annual Meeting of Stockholders.
Board Independence. The Board
of Directors has reviewed the qualifications of each of Messrs. Fritzsche,
Payne, Rosenson and Dr. Saravis, constituting more than a majority of the
Company’s directors, and has affirmatively determined that each individual is
“independent” as such term is defined under the current listing standards of the
NASDAQ Stock Market. The Board of Directors has determined that none of these
directors has a material relationship with the Company that would interfere with
the exercise of independent judgment. In addition, each member of the Audit
Committee is independent as required under Section 10A(m)(3) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).
Stockholder Communications.
Any stockholder wishing to communicate with any of the Company’s directors
regarding the Company may write to the director, c/o Clerk, Pressure
BioSciences, Inc., 14 Norfolk Avenue, South Easton, MA 02375. The Clerk will
forward these communications directly to the director(s).
Code of Ethics. Pursuant to
Section 406 of the Sarbanes-Oxley Act of 2002, the Company has adopted a Code of
Ethics for Senior Financial Officers that applies to the Company’s principal
executive officer, principal financial officer, principal accounting officer,
controller, and other persons performing similar functions. A copy of the code
of ethics is posted on, and may be obtained free of charge from the Company’s
website at www.pressurebiosciences.com. If the Company makes any amendments to
this Code of Ethics or grants any waiver, including any implicit waiver, from a
provision of this Code of Ethics to the Company’s principal executive officer,
principal financial officer, principal accounting officer, controller, or other
persons performing similar functions, the Company will disclose the nature of
such amendment or waiver, the name of the person to whom the waiver was granted
and the date of waiver in a Current Report on Form 8-K.
Board
Leadership Structure and Role in Risk Oversight
The Board
of Directors has responsibility for establishing broad corporate policies and
reviewing our overall performance rather than day-to-day operations. The
Board’s primary responsibility is to oversee the management of the Company and,
in so doing, serve the best interests of the Company and its stockholders. The
Board selects, evaluates and provides for the succession of executive officers
and, subject to stockholder election, directors. It reviews and approves
corporate objectives and strategies, and evaluates significant policies and
proposed major commitments of corporate resources. The Board participates in
decisions that have a potential major economic impact on the Company and its
stockholders. Management keeps the directors informed of Company activity
through regular written reports and presentations at Board and committee
meetings.
The Board
of Directors is led by its Chairman, Mr. Fritzsche. Each of our Audit,
Nominating and Corporate Governance and Compensation Committees provide
oversight and assess risk in their respective areas. In addition, the Board and
each committee have an active role in overseeing management of our Company’s
risk. The Board regularly reviews information regarding our operations, credit,
and liquidity, as well as the risks associated with each.
Board
Committees
Standing
committees of the Board of Directors include an Audit Committee, a Compensation
Committee, and a Nominating Committee.
Audit Committee.
Messrs.
Payne and Rosenson and Dr. Saravis are currently the members of the Audit
Committee.
The Board
of Directors has determined that Mr. Payne qualifies as an “audit committee
financial expert” as defined in Item 407(d)(5) of Regulation S-K.
The Audit
Committee operates pursuant to a written charter (the “Audit Committee
Charter”), a current copy of which is publicly available on the investor
relations portion of the Company’s website at www.pressurebiosciences.com.
Under the provisions of the Audit Committee Charter, the primary functions of
the Audit Committee are to assist the Board of Directors with the oversight of
(i) the Company’s financial reporting process, accounting functions, and
internal controls, and (ii) the qualifications, independence, appointment,
retention, compensation, and performance of the Company’s independent public
accounting firm. The Audit Committee is also responsible for the establishment
of “whistle-blowing” procedures, and the oversight of other compliance matters.
The Audit Committee held six (6) meetings during fiscal 2009.
Compensation
Committee.
General
Messrs.
Fritzsche, Payne, and Rosenson and Dr. Saravis are currently the members of the
Compensation Committee. The Compensation Committee operates pursuant to a
written charter, a current copy of which is publicly available on the investor
relations portion of the Company’s website at www.pressurebiosciences.com. The
primary functions of the Compensation Committee include (i) reviewing and
approving our executive compensation, (ii) reviewing the recommendations of the
President and Chief Executive Officer regarding the compensation of our
executive officers, (iii) evaluating the performance of the Chief Executive
Officer, (iv) overseeing the administration and approval of grants of stock
options and other equity awards under our equity incentive plans, and (v)
recommending compensation for our Board of Directors and each committee thereof
for review and approval by the Board of Directors. The Compensation Committee
held one (1) meeting during fiscal 2009.
The
Compensation Committee may form and delegate authority to one or more
subcommittees as it deems appropriate from time to time under the circumstances
(including (a) a subcommittee consisting of a single member and (b) a
subcommittee consisting of at least two members, each of whom qualifies as a
“non-employee director,” as such term is defined from time to time in Rule 16b-3
promulgated under the Exchange Act, and an “outside director,” as such term is
defined from time to time in Section 162(m) of the Internal Revenue Code of
1986, as amended, and the rules and regulations thereunder).
Compensation
Objectives
In light
of the early stage of commercialization of our products, we recognize the
importance of attracting and retaining key employees with sufficient experience,
skills, and qualifications in areas vital to our success, such as operations,
finance, sales and marketing, research and development, engineering, and
individuals who are committed to our short- and long-term goals. The
Compensation Committee has designed our executive compensation programs with the
intent of attracting, motivating, and retaining experienced executives and
rewarding them for their contributions by offering them a competitive base
salary, potential for annual cash incentive bonuses, and long-term equity-based
incentives, typically in the form of stock options. The Compensation Committee
strives to balance the need to retain key employees with financial prudence
given our history of operating losses and the early stage of our
commercialization.
Executive Officers and
Director Compensation Process
The
Compensation Committee considers and determines executive compensation according
to an annual and semi-annual objective setting and measurement cycle.
Specifically, corporate goals for the year are initially developed by our
executive officers and are then presented to the Board of Directors and
Compensation Committee for review and approval. Individual goals are intended to
focus on contributions that facilitate the achievement of the corporate goals.
Individual goals are first proposed by each executive officer, other than the
President and Chief Executive Officer, then discussed by the entire senior
executive management team and ultimately compiled and prepared for submission to
the Board of Directors and the Compensation Committee, by the President and
Chief Executive Officer. The Compensation Committee sets and approves the goals
for the President and Chief Executive Officer. Generally, corporate and
individual goals are set during the first quarter of each calendar year. The
objective setting process is coordinated with our annual financial planning and
budgeting process so our Board of Directors and Compensation Committee can
consider overall corporate and individual objectives in the context of budget
constraints and cost control considerations. Annual salary increases, bonuses,
and equity awards, such as stock option grants, if any, are tied to the
achievement of these corporate and individual performance goals as well as our
financial position and prospects.
Under the
annual performance review program, the Compensation Committee evaluates
individual performance against the goals for the recently completed year. The
Compensation Committee’s evaluation generally occurs in the first quarter of the
following year. The evaluation of each executive (other than the President and
Chief Executive Officer) begins with a written self-assessment submitted by the
executive to the President and Chief Executive Officer. The President and Chief
Executive Officer then prepares a written evaluation based on the executive’s
self-assessment, the President and Chief Executive Officer’s evaluation, and
input from others within the Company. This process leads to a recommendation by
the President and Chief Executive Officer for a salary increase, bonus, and
equity award, if any, which is then considered by the Compensation Committee. In
the case of the President and Chief Executive Officer, the Compensation
Committee conducts his performance evaluation and determines his compensation,
including salary increase, bonus, and equity awards, if any. We generally
expect, but are not required, to implement salary increases, bonuses, and equity
awards, for all executive officers, if and to the extent granted, by April 1 of
each year.
Non-employee
director compensation is set by our Board of Directors upon the recommendation
of the Compensation Committee. In developing its recommendations, the
Compensation Committee is guided by the following goals: compensation should be
fair relative to the required services for directors of comparable companies in
our industry and at our company’s stage of development; compensation should
align directors’ interests with the long-term interest of stockholders; the
structure of the compensation should be simple, transparent, and easy for
stockholders to understand; and compensation should be consistent with the
financial resources, prospects, and competitive outlook for the
Company.
In
evaluating executive officer and director compensation, the Compensation
Committee considers the practices of companies of similar size, geographic
location, and market focus. In order to develop reasonable benchmark data the
Compensation Committee has referred to publicly available sources such as
Salary.com and the BioWorld Survey. While the Compensation Committee does not
believe benchmarking is appropriate as a stand-alone tool for setting
compensation due to the unique aspects of our business objectives and current
stage of development, the Compensation Committee generally believes that
gathering this compensation information is an important part of its
compensation-related decision making process.
The
Compensation Committee has the authority to hire and fire advisors and
compensation consultants as needed and approve their fees. No advisors or
compensation consultants were hired or fired in fiscal 2009.
The
Compensation Committee is also authorized to delegate any of its
responsibilities to subcommittees or individuals as it deems appropriate. The
Compensation Committee did not delegate any of its responsibilities in fiscal
2009.
Nominating
Committee.
Messrs.
Fritzsche, Payne, Rosenson and Dr. Saravis are currently the members of the
Company’s Nominating Committee. The Nominating Committee operates pursuant to a
written charter, a current copy of which is publicly available on the investor
relations portion of the Company’s website at www.pressurebiosciences.com. The
Nominating Committee held one (1) meeting during fiscal year 2009.
The
primary functions of the Nominating Committee are to (i) identify, review, and
evaluate candidates to serve as directors of the Company, (ii) make
recommendations of candidates to the Board of Directors for all directorships to
be filled by the stockholders or the Board of Directors, and (iii) serve as a
focal point for communication between such candidates, the Board of Directors,
and management.
The
Nominating Committee may consider candidates recommended by stockholders as well
as from other sources such as other directors or officers, third party search
firms, or other appropriate sources. For all potential candidates, the
Nominating Committee may consider all factors it deems relevant, such as a
candidate’s personal integrity and sound judgment, business and professional
skills and experience, independence, possible conflicts of interest, diversity,
the extent to which the candidate would fill a present need on the Board of
Directors, and concern for the long-term interests of the stockholders. These
criteria include whether the candidate assists in achieving a mix of Board
members that represents diversity of background and professional experience,
including with respect to ethnic background, age and gender. In general,
persons recommended by stockholders will be considered on the same basis as
candidates from other sources. If a stockholder wishes to recommend a candidate
for director for election at the 2011 Annual Meeting of Stockholders, it must
follow the procedures described below under “Stockholder
Proposals.”
Audit
Committee Report
The Audit
Committee has reviewed and discussed the Company’s audited financial statements
for the year ended December 31, 2009 with management of the Company. The Audit
Committee also discussed with UHY LLP (“UHY”), the Company’s independent
registered public accounting firm, the matters required to be discussed by the
Auditing Standards Board Statement on Auditing Standards No. 61, as amended.
The Audit Committee has also received and reviewed the required written
disclosures and a confirming letter from UHY required by applicable requirements
of the Public Accounting Oversight Board regarding UHY’s independence, and has
discussed the matter with UHY.
Based
upon its review and discussions of the foregoing, the Audit Committee
recommended to the Board of Directors that the Company’s audited financial
statements for the year ended December 31, 2009 be included in the Company’s
Annual Report on Form 10-K for the fiscal year ended December 31,
2009.
|
|
Audit
Committee:
|
|
|
|
|
|
|
|
J.
Donald Payne
|
|
|
|
Alan
D. Rosenson
|
|
|
|
Calvin
A. Saravis
|
|
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
The Audit
Committee appointed Marcum LLP, an independent registered public accounting
firm, to audit the Company’s consolidated financial statements for the fiscal
year ending December 31, 2010. UHY, who has served as the Company’s independent
registered public accounting firm since September 14, 2006, merged with Marcum
LLP effective April 16, 2010. A representative of Marcum LLP (“Marcum”) will be
available during the Meeting to make a statement if such representative desires
to do so and to respond to questions.
Change
in Independent Registered Public Accounting Firm
Effective
April 16, 2010, UHY, the Company’s independent registered public accounting
firm, informed the Company that its New England practice was acquired by Marcum.
UHY has further informed the Company that, as a result of this transaction UHY
will no longer have staff in New England and, as a result, it resigned as the
Company’s independent registered public accounting firm effective April 19,
2010.
UHY
audited the Company’s financial statements for the fiscal year ended December
31, 2009 and 2008. The audit reports of UHY of the Company’s financial
statements for those years did not contain an adverse opinion, or disclaimer of
opinion, nor were they qualified or modified as to uncertainty, audit scope, or
accounting principles.
During
the fiscal years ended December 31, 2009 and 2008 and subsequently to April 19,
2010, there were no disagreements with UHY on any matter of accounting
principles or practices, financial statement disclosure, or auditing scope or
procedure that, if not resolved to UHY’s satisfaction, would have caused UHY to
make reference to the subject matter of the disagreement in connection with its
audit report on our fiscal year 2010 financial statements. There were no
“reportable events” (as that term is described in Item 304(a)(1)(v) of
Regulation S-K) since the appointment of UHY through April 19,
2010.
Effective
as of April 19, 2010, the Company’s Audit Committee engaged Marcum as its new
independent registered public accounting firm to audit the Company’s financial
statements for the Company’s fiscal year ending December 31, 2010. The Audit
Committee has engaged Marcum following Marcum’s acquisition of UHY’s New England
practice. Prior to the appointment of Marcum, the Company had not consulted
with Marcum with respect to: (1) the application of accounting principles to a
specified transaction, either completed or proposed; (2) the type of audit
opinion that might be rendered on the Company’s financial statements; or (3) any
matter that was either the subject of a disagreement (as defined in Item
304(a)(1)(iv) of Regulation S-K) or a reportable event (as described in Item
304(a)(1) (v) of Regulation S-K).
The
following is a summary of the fees billed to the Company by UHY, the Company’s
independent registered public accounting firm, for the fiscal years ended
December 31, 2009 and December 31, 2008, respectively:
|
|
|
Fiscal
2009 Fees
|
|
|
Fiscal
2008 Fees
|
|
|
Audit
Fees
|
|
$ |
113,315 |
|
|
$ |
113,349 |
|
|
Audit-Related
Fees
|
|
|
10,243 |
|
|
|
9,310 |
|
|
Tax
and Other Fees
|
|
|
- |
|
|
|
- |
|
|
|
|
$ |
123,558 |
|
|
$ |
122,659 |
|
Audit Fees. Consists of
aggregate fees billed for professional services rendered for the audit of the
Company’s consolidated financial statements and review of the interim
consolidated financial statements included in quarterly reports, as well as
services that are normally provided by the independent registered public
accounting firm in connection with statutory and regulatory filings or
engagements.
Audit-Related Fees. Consists
of aggregate fees billed for assurance and related services that are reasonably
related to the performance of the audit or review of the Company’s consolidated
financial statements and are not reported under “Audit Fees.” Fees billed by
UHY for 2008 were fees associated with a consent delivered in connection with
the Company’s Registration Statement on Form S-8.
There
were no other fees for services rendered by UHY other than those described
above.
Audit
Committee Policy on Pre-Approval of Services
The Audit
Committee’s policy is to pre-approve all audit and permissible non-audit
services provided by the independent registered public accounting firm. These
services may include audit services, audit-related services, tax services, and
other services. Pre-approval is generally provided for up to one year. The
Audit Committee may also pre-approve particular services on a case-by-case
basis.
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL
OWNERS
AND MANAGEMENT
The
following table sets forth certain information as of April 28, 2010 concerning
the beneficial ownership of Common Stock for: (i) each director and director
nominee, (ii) each Named Executive Officer in the Summary Compensation Table
under “Executive Compensation” below, (iii) all executive officers and directors
as a group, and (iv) each person (including any “group” as that term is used in
Section 13(d)(3) of the Exchange Act) known by the Company to be the beneficial
owner of 5% or more of the Company's Common Stock.
Beneficial
ownership has been determined in accordance with the rules of the Securities and
Exchange Commission (“SEC”) and is calculated based on 2,406,311 shares of our
Common Stock issued and outstanding as of April 28, 2010. Shares of Common
Stock subject to options, warrants, or other securities convertible into Common
Stock that are currently exercisable or convertible, or exercisable or
convertible within 60 days of April 28, 2010, are deemed outstanding for
computing the percentage of the person holding the option, warrant, or
convertible security but are not deemed outstanding for computing the percentage
of any other person.
Except as
indicated by the footnotes below, the Company believes, based on the information
furnished to it, that the persons and entities named in the table below have
sole voting and investment power with respect to all shares of Common Stock that
they beneficially own.
|
|
|
Number
of
|
|
|
|
|
|
|
|
Shares
of
|
|
|
|
|
|
|
|
Common
Stock
|
|
|
|
|
|
|
|
Beneficially
|
|
|
Percent
of
|
|
|
Name
|
|
Owned (1)
|
|
|
Class
|
|
|
|
|
|
|
|
|
|
|
Richard
T. Schumacher (2)*
|
|
|
625,415 |
|
|
|
22.2 |
% |
|
130
Lake Ridge Drive
|
|
|
|
|
|
|
|
|
|
Taunton,
MA 02780
|
|
|
|
|
|
|
|
|
|
R.
Wayne Fritzsche *
|
|
|
154,535 |
|
|
|
6.07 |
% |
|
1311
Trail Glen Lane
|
|
|
|
|
|
|
|
|
|
Lutz,
FL 33549
|
|
|
|
|
|
|
|
|
|
Calvin
A. Saravis, Ph.D
|
|
|
125,000 |
|
|
|
4.94 |
% |
|
Edmund
Y. Ting, Ph.D
|
|
|
106,270 |
|
|
|
4.23 |
% |
|
Nathan
P. Lawrence, Ph.D
|
|
|
105,630 |
|
|
|
4.22 |
% |
|
Alexander
V. Lazarev, Ph.D
|
|
|
86,820 |
|
|
|
3.48 |
% |
|
Matthew
B. Potter
|
|
|
51,371 |
|
|
|
2.09 |
% |
|
J.
Donald Payne
|
|
|
125,500 |
|
|
|
4.97 |
% |
|
Alan
D. Rosenson
|
|
|
110,829 |
|
|
|
4.45 |
% |
|
All
Executive Officers and Directors as a Group (nine persons)
(1)
|
|
|
1,491,370 |
|
|
|
41.19 |
% |
* Address provided for beneficial owners
of more than 5% of the Common Stock.
(1)
Includes the following shares of Common Stock issuable upon exercise of options
exercisable within 60 days after April 28, 2010; Mr. Schumacher – 355,002; Mr.
Fritzsche – 138,000; Dr. Saravis – 125,000; Dr. Ting – 92,001; Dr. Lawrence –
86,668; Dr. Lazarev – 76,668; Mr. Potter – 48,333; Mr. Payne – 88,000; Mr.
Rosenson – 15,000; and all directors and executive officers as a group –
1,024,672.
Includes
the following shares of Common Stock issuable upon conversion of Series A
Convertible Preferred Stock convertible within 60 days after April 28, 2010
(subject to “blocker” provisions as described herein): Mr. Schumacher – 33,900;
Mr. Fritzsche – 0; Dr. Saravis – 0; Dr. Ting – 6,820; Dr. Lawrence – 6,730; Dr.
Lazarev – 5,610; Mr. Potter – 1,680; Mr. Payne – 16,230; Mr. Rosenson – 67,850;
and all directors and executive officers as a group – 138,820. Each share of
Preferred Stock is convertible into 10 shares of Common Stock. The terms of the
Preferred Stock contain a limitation on conversion which prevents the holder
from converting shares of Preferred Stock into shares of Common Stock if, after
giving effect to the conversion, the holder would beneficially own more than
4.99% of the outstanding shares of Common Stock. The holder may elect to
increase this limitation to 9.99%, 14.99% or 19.99%, upon not less than 61 days
prior written notice to the Company. With respect to Mr. Schumacher, because he
currently beneficially owns more than 19.99% of the outstanding shares of Common
Stock, the conversion limitation no longer applies to him. Excludes the
following shares of Common Stock issuable upon conversion of Series A
Convertible Preferred Stock convertible within 60 days after April 28, 2010
because such conversion is subject to “blocker” provisions as described above:
Mr. Fritzsche – 290,930. Each holder disclaims beneficial ownership of such
securities except to the extent of the holder’s pecuniary interest in such
securities.
Includes
the following shares of Common Stock issuable upon exercise of warrants
exercisable within 60 days after April 28, 2010 (subject to “blocker” provisions
as described herein): Mr. Schumacher – 21,740; Mr. Fritzsche – 0; Dr. Saravis –
0; Dr. Ting – 5,220; Dr. Lawrence – 5,220; Dr. Lazarev – 4,350; Mr. Potter –
1,300; Mr. Payne – 13,050; and all directors and executive officers as a group –
50,880. Certain common stock warrants contain a limitation on exercise which
prevents the holder from exercising such warrants if, after giving effect to the
exercise, the holder would beneficially own more than 4.99% of the outstanding
shares of Common Stock. The holder may elect to increase this limitation to
9.99%, 14.99% or 19.99%, upon not less than 61 days prior written notice to the
Company. With respect to Mr. Schumacher, because he currently beneficially owns
more than 19.99% of the outstanding shares of Common Stock, the conversion
limitation no longer applies to him. Excludes the following shares of Common
Stock issuable upon exercise of warrants exercisable within 60 days after April
28, 2010 because such exercise is subject to “blocker” provisions as described
above: Mr. Fritzsche – 219,310. Each holder disclaims beneficial ownership of
such securities except to the extent of the holder’s pecuniary interest in such
securities.
(2) Does
not include 20,162 shares of Common Stock held by Mr. Schumacher’s minor son as
his wife exercises all voting and investment control over such
shares.
EXECUTIVE
COMPENSATION
Summary
Compensation Table
The
Summary Compensation Table below sets forth the total compensation paid or
earned for the fiscal years ended December 31, 2008 and 2009 for: (i) each
individual serving as the Company’s Chief Executive Officer (“CEO”) or acting in
a similar capacity during any part of fiscal 2009; and (ii) the other four most
highly paid executive officers (collectively, the “Named Executive Officers”)
who were serving as executive officers at the end of fiscal 2009.
|
|
|
|
|
|
|
|
Option
|
|
|
All other
|
|
|
|
|
|
Name and Principal Position
|
|
Fiscal Year
|
|
Salary (1)
|
|
|
Awards (2)
|
|
|
Compensation (3)
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard
T. Schumacher
|
|
2009
|
|
$ |
279,594 |
|
|
$ |
88,517 |
|
|
$ |
18,720 |
|
|
$ |
386,831 |
|
|
President
& Chief Executive Officer
|
|
2008
|
|
|
283,668 |
|
|
|
107,863 |
|
|
|
10,329 |
|
|
|
401,860 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Edmund
Ting, Ph.D
|
|
2009
|
|
|
194,940 |
|
|
|
55,375 |
|
|
|
1,319 |
|
|
|
251,634 |
|
|
Senior
Vice President of Engineering
|
|
2008
|
|
|
191,958 |
|
|
|
52,036 |
|
|
|
1,211 |
|
|
|
245,205 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nathan
P. Lawrence, Ph.D
|
|
2009
|
|
|
148,770 |
|
|
|
17,717 |
|
|
|
22,017 |
|
|
|
188,504 |
|
|
Vice
President of Marketing
|
|
2008
|
|
|
146,495 |
|
|
|
32,703 |
|
|
|
1,627 |
|
|
|
180,825 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alexander
V. Lazarev, Ph.D
|
|
2009
|
|
|
143,765 |
|
|
|
40,131 |
|
|
|
6,119 |
|
|
|
190,015 |
|
|
Vice
President of Research & Development
|
|
2008
|
|
|
141,443 |
|
|
|
43,472 |
|
|
|
4,627 |
|
|
|
189,542 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matthew
B. Potter
|
|
2009
|
|
|
162,779 |
|
|
|
35,522 |
|
|
|
1,791 |
|
|
|
200,092 |
|
|
Vice
President of Sales
|
|
2008
|
|
|
131,679 |
|
|
|
22,668 |
|
|
|
1,627 |
|
|
|
155,974 |
|
(1)
Salary refers to base salary compensation paid through the Company’s normal
payroll process. No bonus was paid to any Named Executive Officer for 2008 or
2009.
(2)
Amounts shown do not reflect compensation received by the Named Executive
Officers. Instead, the amounts shown are the compensation costs recognized by
the Company in each of the fiscal years presented for option awards as
determined pursuant to FASB ASC 718, Compensation-Stock Compensation. Please
refer to Note 2, xiii, “Accounting for Stock-Based Compensation” in the Notes to
the Company’s Consolidated Financial Statements included in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2009, for the
relevant assumptions used to determine the valuation of stock option grants.
Based on the assumptions outlined in the Notes to the Company’s Consolidated
Financial Statements the value of stock options awarded to executives and other
employees during 2008 and 2009 was between $.77 and $4.89 per
option.
(3) “All
Other Compensation” includes the Company’s match to the executives’ 401(k)
contribution and premiums paid on life insurance for the executive. Both of
these benefits are available to all employees of the Company. In the case of
Mr. Schumacher, “All Other Compensation” also includes $7,980 in premiums paid
by the Company for a life insurance policy to which Mr. Schumacher’s wife is the
beneficiary. Mr. Schumacher’s compensation for 2009 includes $10,576 paid to
his spouse, a part-time employee of the Company. Dr. Lawrence’s compensation
for 2009 includes $20,365 paid to his spouse, a part-time employee of the
Company. Included in “All Other Compensation” for Dr. Lazarev, $4,625 was paid
to Dr. Lazarev for not participating in the medical benefit plan offered by the
Company.
The
following table sets forth certain information regarding outstanding stock
options awards for each of the Named Executive Officers as of December 31,
2009.
|
|
|
Option Awards
|
|
|
|
|
|
|
|
|
Number of Securities
|
|
|
Number of Securities
|
|
|
|
|
|
|
|
|
Underlying
|
|
|
Underlying
|
|
|
Option
|
|
Option
|
|
|
|
Unexercised Options
|
|
|
Unexercised Options
|
|
|
Exercise
|
|
Expiration
|
|
Name
|
|
# Exercisable
|
|
|
# Unexercisable (1)
|
|
|
Price ($)
|
|
Date
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard
T. Schumacher
|
|
|
40,000 |
|
|
|
0 |
|
|
$ |
2.60 |
|
5/2/2011
|
|
President
& Chief Executive Officer
|
|
|
60,000 |
|
|
|
0 |
|
|
$ |
3.08 |
|
2/11/2012
|
|
|
|
|
30,000 |
|
|
|
0 |
|
|
$ |
2.70 |
|
12/2/2012
|
|
|
|
|
75,000 |
|
|
|
0 |
|
|
$ |
2.92 |
|
6/17/2015
|
|
|
|
|
30,000 |
|
|
|
0 |
|
|
$ |
3.86 |
|
3/30/2016
|
|
|
|
|
46,667 |
|
|
|
23,333 |
(2) |
|
$ |
3.51 |
|
2/12/2017
|
|
|
|
|
25,004 |
|
|
|
49,996 |
(2) |
|
$ |
0.77 |
|
3/12/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Edmund
Y. Ting, Ph.D
|
|
|
60,000 |
|
|
|
0 |
|
|
$ |
3.87 |
|
4/24/2016
|
|
Senior
Vice President of Engineering
|
|
|
4,000 |
|
|
|
8,000 |
(3) |
|
$ |
2.75 |
|
9/25/2018
|
|
|
|
|
14,002 |
|
|
|
27,998 |
(3) |
|
$ |
0.77 |
|
3/12/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nathan
P. Lawrence, Ph.D
|
|
|
50,000 |
|
|
|
0 |
|
|
$ |
3.34 |
|
8/5/2015
|
|
Vice
President of Marketing
|
|
|
10,000 |
|
|
|
0 |
|
|
$ |
3.88 |
|
3/2/2016
|
|
|
|
|
3,334 |
|
|
|
6,666 |
(4) |
|
$ |
2.75 |
|
9/25/2018
|
|
|
|
|
11,668 |
|
|
|
23,332 |
(4) |
|
$ |
0.77 |
|
3/12/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alexander
V. Lazarev, Ph.D
|
|
|
50,000 |
|
|
|
0 |
|
|
$ |
3.88 |
|
3/2/2016
|
|
Vice
President of Research & Development
|
|
|
3,334 |
|
|
|
6,666 |
(5) |
|
$ |
2.75 |
|
9/25/2018
|
|
|
|
|
11,668 |
|
|
|
23,332 |
(5) |
|
$ |
0.77 |
|
3/12/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matthew
B. Potter
|
|
|
11,666 |
|
|
|
23,334 |
(6) |
|
$ |
4.18 |
|
2/25/2018
|
|
Vice
President of Sales
|
|
|
1,666 |
|
|
|
3,334 |
(6) |
|
$ |
2.75 |
|
9/25/2018
|
|
|
|
|
11,668 |
|
|
|
23,332 |
(6) |
|
$ |
0.77 |
|
3/12/2019
|
(1) All
unvested stock options listed in this column were granted to the Named Executive
Officer pursuant to the Company’s 2005 Equity Incentive Plan. All of such stock
options vest ratably over three years except the stock options granted on March
12, 2009 of which one-third vest immediately and two-thirds vest over two years.
All options expire ten years after the date of grant. Unvested stock options
become fully vested and exercisable upon a change of control of the
Company.
(2)
Options to purchase 70,000 shares of Common Stock were granted to Mr. Schumacher
on February 12, 2007, of which 23,334 shares became vested on February 12, 2008
and an additional 23,333 shares became vested on February 12, 2009. Options to
purchase 75,000 shares of Common Stock were granted to Mr. Schumacher on March
12, 2009, of which 25,004 shares became immediately vested on March 12,
2009.
(3)
Options to purchase 12,000 shares of Common Stock were granted to Dr. Ting on
September 25, 2008, of which 4,000 shares became vested on September 25, 2009.
Options to purchase 42,000 shares of Common Stock were granted to Dr. Ting on
March 12, 2009, of which 14,002 shares became immediately vested on March 12,
2009.
(4)
Options to purchase 10,000 shares of Common Stock were granted to Dr. Lawrence
on September 25, 2008, of which 3,334 shares became vested on September 25,
2009. Options to purchase 35,000 shares of Common Stock were granted to Dr.
Lawrence on March 12, 2009, of which 11,668 shares became immediately vested on
March 12, 2009.
(5)
Options to purchase 10,000 shares of Common Stock were granted to Dr. Lazarev on
September 25, 2008, of which 3,334 shares became vested on September 25, 2009.
Options to purchase 35,000 shares of Common Stock were granted to Dr. Lazarev on
March 12, 2009, of which 11,668 shares became immediately vested on March 12,
2009.
(6)
Options to purchase 5,000 shares of Common Stock were granted to Mr. Potter on
September 25, 2008, of which 1,666 shares became vested on September 25, 2009.
Options to purchase 35,000 shares of Common Stock were granted to Mr. Potter on
March 12, 2009, of which 11,668 shares became immediately vested on March 12,
2009.
Retirement
Plan
All
employees, including the Named Executive Officers, may participate in the
Company’s 401(k) Plan. Under the 401(k) Plan, employees may elect to make before
tax contributions of up to 60% of their base salary, subject to current Internal
Revenue Service limits. The 401(k) Plan does not permit an investment in the
Company’s Common Stock. The Company matches employee contributions up to 50% of
the first 2% of the employee’s contribution. The Company’s contribution is 100%
vested immediately.
Severance
Arrangements
Each of
Mr. Schumacher, Dr. Ting, Dr. Lazarev, Dr. Lawrence, and Mr. Potter, the
Company’s executive officers, is entitled to receive a severance payment if
terminated by the Company without cause. The severance benefits would include a
payment in an amount equal to one year of such executive officer’s annualized
base salary compensation plus accrued paid time off. Additionally, the officer
will be entitled to receive medical and dental insurance coverage for one year
following the date of termination.
Change-in-Control
Arrangements
Each of
the Company’s executive officers, other than Mr. Schumacher, is entitled to
receive a change of control payment in an amount equal to one year of such
executive officer’s annualized base salary compensation, accrued paid time off,
and medical and dental coverage, in the event of a change of control of the
Company. In the case of Mr. Schumacher, this payment is equal to two years of
annualized base salary compensation, accrued paid time off, and two years of
medical and dental coverage.
Pursuant
to the Company’s 2005 Equity Incentive Plan, any unvested stock options held by
a Named Executive Officer will become fully vested upon a change in control (as
defined in the 2005 Equity Incentive Plan) of the Company.
Director
Compensation
The
following table sets forth certain information regarding compensation earned or
paid to the Company’s directors during fiscal 2009.
|
|
|
Fees Earned or
|
|
|
|
|
|
|
|
|
Name
|
|
Paid in Cash (1)
|
|
|
Option Awards (2)
|
|
|
Total
|
|
|
R.
Wayne Fritzsche
|
|
$ |
10,000 |
|
|
$ |
8,561 |
|
|
$ |
18,561 |
|
|
Calvin
A. Saravis, Ph.D
|
|
|
10,000 |
|
|
|
8,561 |
|
|
|
18,561 |
|
|
J.
Donald Payne
|
|
|
10,000 |
|
|
|
8,561 |
|
|
|
18,561 |
|
|
Alan
D. Rosenson
|
|
|
2,500 |
|
|
|
18,585 |
|
|
|
21,085 |
|
The
Company’s non-employee directors receive the following compensation for service
as a director of the Company:
(1) A
quarterly stipend of $2,500 for attending meetings of the full Board of
Directors (whether telephonic or in-person) and attending committee meetings,
was earned by each member in 2009. However, the Board of Directors elected to
defer the payment of these fees until certain financial performance is achieved.
There is no limit to the number of meetings of the Board of Directors or
committees that may be called.
(2)
Amounts shown do not reflect compensation received by the directors. Instead,
the amounts shown are the compensation costs recognized by the Company in each
of the fiscal years presented for option awards as determined pursuant to FASB
ASC 718, Compensation-Stock Compensation. Please refer to Note 2, xiii,
“Accounting for Stock-Based Compensation” in the Notes to the Company’s
Consolidated Financial Statements included in the Company’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2009, for the relevant
assumptions used to determine the valuation of stock option grants. As of
December 31, 2009, the aggregate number of outstanding options to purchase
shares of Common Stock held by each of Messrs. Fritzsche, Payne and Rosenson and
Dr. Saravis were 138,000, 88,000, 25,000 and 125,000, respectively.
PROPOSAL
NO. 2
AMENDMENT
TO THE PRESSURE BIOSCIENCES, INC.
2005
EQUITY INCENTIVE PLAN
Description
of Proposed Amendment.
On Monday, April 19, 2010, the
Board of Directors approved, subject to stockholder approval, an amendment to
the Pressure BioSciences, Inc. 2005 Equity Incentive Plan (the “2005 Equity
Incentive Plan”), to increase the number of shares reserved for issuance under
the 2005 Equity Incentive Plan from 1,500,000 to 1,800,000 shares, an increase
of 300,000 shares. As of April 28, 2010, there were 174,500 shares remaining
available for issuance under the 2005 Equity Incentive Plan.
If the
amendment is approved by the stockholders, the first sentence of Section 3(a) of
the 2005 Equity Incentive Plan would be amended and restated as
follows:
“Subject
to adjustment under Section 3(c), the aggregate number of shares of Common Stock
of the Company (the “Common Stock”) that may be issued pursuant to the Plan is
1,800,000.”
Description
of the 2005 Equity Incentive Plan
The
following is a summary of the material features of the 2005 Equity Incentive
Plan.
Purpose and Eligibility.
The purpose of the 2005 Equity Incentive Plan is to award stock options, stock
issuances and other equity interests in the Company (each, an “Award”) to
employees, officers, directors, consultants and advisors of the Company and its
subsidiaries and to any other persons the Board of Directors determines to have
made or is expected to make contributions to the Company. There are currently
seventeen (17) persons (consisting of employees, officers and directors)
eligible to receive Awards under the 2005 Equity Incentive Plan.
Administration. The 2005
Equity Incentive Plan is currently administered by the Compensation Committee of
the Board of Directors or, to the extent permitted by applicable law, by one or
more executive officers of the Company designated by the Board of Directors
(such committee and designee(s) together with the Board of Directors are
hereinafter referred to as the “Committee”) as permitted under the 2005 Equity
Incentive Plan. The Committee has the authority to grant and amend Awards, to
adopt, amend and repeal rules relating to the 2005 Equity Incentive Plan, and to
interpret, construe and determine the terms and provisions of the 2005 Equity
Incentive Plan and any Award.
Shares Subject to the 2005 Equity
Incentive Plan. A maximum of 1,500,000 shares of Common Stock of the
Company are available for issuance under the 2005 Equity Incentive Plan. As
described above, if Proposal No. 2 is approved, the number of shares of Common
Stock available for issuance under the 2005 Equity Incentive Plan will be
increased from 1,500,000 to 1,800,000, an increase of 300,000 shares. No
participant in the 2005 Equity Incentive Plan may be granted Awards during any
one fiscal year to purchase or with respect to more than 75,000 shares of Common
Stock. If any Award expires, or is terminated, surrendered or forfeited, in
whole or in part, without having been exercised in full, the unissued shares of
Common Stock covered by such Award shall again be available for grant of Awards
under the 2005 Equity Incentive Plan. If shares of Common Stock issued pursuant
to the 2005 Equity Incentive Plan are repurchased by, or are surrendered or
forfeited to, the Company at no more than cost, such shares of Common Stock
shall again be available for the grant of Awards under the 2005 Equity Incentive
Plan.
Subject
to the terms of the 2005 Equity Incentive Plan, in the event of a stock split,
reverse stock split, stock dividend, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, exchange of shares,
liquidation, spin-off, split-up or other similar action, (i) the number and
class of securities available for Awards under the 2005 Equity Incentive Plan
and the per-participant share limit, (ii) the number and class of securities and
vesting schedule for outstanding Awards and the exercise price per share subject
to each outstanding Award, (iii) the repurchase price per share subject to
repurchase and (iv) the terms of each outstanding Award, shall be adjusted by
the Company to the extent the Committee shall determine, in good faith, that
such an adjustment is appropriate.
Awards under the 2005 Equity
Incentive Plan. Awards under the 2005 Equity Incentive Plan may take
the form of stock options (either incentive stock options or non-qualified stock
options), restricted stock and other stock-based awards, such as stock
appreciation rights, phantom stock awards or stock units. Subject to certain
restrictions set forth in the 2005 Equity Incentive Plan, the Committee has the
complete and absolute authority to set the terms, conditions and provisions of
each Award, including the size of the Award, the exercise or base price, the
vesting and exercisability schedule (including provisions regarding acceleration
or extension of vesting and exercisability), the repurchase rights, and
termination, cancellation and forfeiture provisions. Each Award under the 2005
Equity Incentive Plan shall be evidenced by a written instrument in such form as
the Committee shall determine and may contain terms and conditions in addition
to those set forth in the 2005 Equity Incentive Plan, provided that such terms
and conditions do not contravene the provisions of the 2005 Equity Incentive
Plan or applicable law. The terms of each type of Award need not be identical
and the Committee need not treat participants uniformly. No Awards may be
granted under the 2005 Equity Incentive Plan after May 2, 2015.
The
Committee shall be subject to the following specific restrictions regarding the
types and terms of specific Awards:
|
|
·
|
The
terms and conditions of incentive stock options shall be subject to and
comply with section 422 of the Internal Revenue Code of 1986, as amended
(the “Code”) and any regulations
thereunder.
|
|
|
·
|
No
incentive stock option granted under the 2005 Equity Incentive Plan may be
exercisable more than ten years after the date of grant (five years after
the date of grant for incentive stock options granted to holders of more
than ten percent of the Common
Stock).
|
|
|
·
|
Incentive
stock options may be granted only to employees of the
Company.
|
|
|
·
|
The
exercise price for stock options must at least equal to the par value of
the Common Stock.
|
|
|
·
|
The
exercise price for incentive stock options must be at least equal the fair
market value of the Common Stock on the date of grant, and, in the case of
incentive stock option granted to the holders of more than ten percent of
the Common Stock, the exercise price must be at least 110% of the fair
market value of the Common Stock on the date of the
grant.
|
The
Committee will determine whether Awards granted pursuant to the 2005 Equity
Incentive Plan are settled in whole or in part in cash, Common Stock, or such
other lawful consideration as the Committee may deem appropriate. The Company
may deduct from payments of any kind otherwise due a participant any federal,
state or local taxes of any kind required to be withheld in connection with an
Award. In the Committee’s discretion, tax obligations required to be withheld in
respect of an Award may be paid in whole or in part in shares of Common Stock,
including shares retained from such Award. The Committee will determine the
effect on the Award of the death, disability, or retirement or other termination
of employment of a participant and the extent to which and period during which
the participant's legal representative, guardian or designated beneficiary may
receive payment of an Award or exercise rights thereunder.
The
Committee may grant Awards entitling participants to acquire shares of Common
Stock, subject to (i) the delivery to the Company by the participant of a check
in an amount at least equal to the par value of the shares of Common Stock
purchased, and (ii) the right of the Company to repurchase all or part of such
shares of Common Stock at their issue price or other stated or formula price
from the participant in the event that conditions specified by the Committee in
the applicable Award are not satisfied prior to the end of the applicable
restriction period established by the Committee for such Award. These Awards are
referred to as restricted stock awards. The Committee shall determine the terms
and conditions of any such restricted stock award.
The
Committee also has the right to grant other Awards based upon the Common Stock,
such Awards having such terms and conditions as the Committee may determine,
including, without limitation, the grant of shares of Common Stock based upon
certain conditions, the grant of securities convertible into Common Stock and
the grant of stock appreciation rights, phantom stock awards or stock
units.
Except as
the Committee may otherwise determine or provide in an Award, Awards shall not
be sold, assigned, transferred, pledged or otherwise encumbered by the
participant to whom they are granted, except by will or the laws of descent and
distribution, and during the life of the participant, shall be exercisable only
by the participant; provided, however, that nonqualified stock options may be
transferred pursuant to a qualified domestic relations order or to a
grantor-retained annuity trust or a similar estate-planning vehicle in which the
trust is bound by all provisions of the nonqualified stock option which are
applicable to the participant.
Unless
otherwise expressly provided in the applicable Award, upon the occurrence of an
acquisition of the Company (as defined in the 2005 Equity Incentive Plan), the
Committee shall in its sole discretion as to outstanding Awards (on the same
basis or on different bases), take one or more of the following actions: (i)
make appropriate provision for the continuation of such Awards by the Company or
the assumption of such Awards by the surviving or acquiring entity; (ii)
accelerate the date of exercise or vesting of such Awards or any installment of
any such Awards; (iii) permit the exchange of all Awards for the right to
participate in any stock option or other employee benefit plan of any successor
corporation; and (iv) provide for the termination of any such Awards immediately
prior to the consummation of the acquisition, provided that no such termination
will be effective if the acquisition is not consummated. An “acquisition” is
defined in the 2005 Equity Incentive Plan as any merger, business combination,
consolidation or purchase of outstanding capital stock of the Company in which
the persons who were the beneficial owners of the outstanding Common Stock
immediately prior to such transaction do not, following such transaction,
beneficially own, directly or indirectly, more than 50% of the then outstanding
shares of common stock of the corporation resulting from such transaction (other
than as a result of a financing transaction); or any sale of all or
substantially all of the capital stock or assets of the Company.
The Board
of Directors may amend, suspend or terminate the 2005 Equity Incentive Plan or
any portion thereof at any time; provided that no amendment shall be made
without stockholder approval if such approval is necessary to comply with any
applicable law, rules or regulations.
The
granting of Awards under the 2005 Equity Incentive Plan is discretionary, and
the Company cannot determine at this time the number or type of Awards to be
granted in the future to any particular person or group.
Federal
Income Tax Consequences
The
following general discussion of the United States federal income tax
consequences of Awards granted under the 2005 Equity Incentive Plan is based
upon the provisions of the Code as in effect on the date hereof, current
regulations promulgated and proposed thereunder, existing public and private
administrative rulings and pronouncements of the Internal Revenue Service, and
judicial decisions, all of which are subject to change (perhaps with retroactive
effect). This discussion is not intended to be a complete discussion of all of
the federal income tax consequences of the 2005 Equity Incentive Plan or of the
requirements that must be met in order to qualify for the tax treatment
described herein. Changes in the law and regulations may modify the discussion,
and in some cases the changes may be retroactive. No information is provided as
to state, local or foreign tax laws. In addition, because tax consequences may
vary and certain exceptions may apply depending upon personal circumstances of
individuals, each participant should consider his or her personal situation and
consult with his or her tax advisor with respect to the specific tax
consequences applicable to him or her. The 2005 Equity Incentive Plan is not
qualified under Section 401 of the Code, nor is it subject to the provisions of
the Employee Retirement Income Security Act of 1974, as amended.
Incentive Stock Options.
An option holder generally will not recognize taxable income upon either the
grant or the exercise of an incentive stock option. However, under certain
circumstances, there may be alternative minimum tax or other tax consequences,
as discussed below.
An option
holder generally will recognize taxable income upon the disposition of the
shares of Common Stock received upon exercise of an incentive stock option. Any
gain recognized upon a disposition that is not a “disqualifying disposition” (as
defined below) will be taxable as long-term capital gain.
A
“disqualifying disposition” means any disposition of shares of Common Stock
acquired on the exercise of an incentive stock option when such disposition
occurs within two years of the date the stock option was granted or within one
year of the date the shares were transferred to the option holder. The use of
the shares acquired pursuant to the exercise of an incentive stock option to pay
the option exercise price under another incentive stock option is treated as a
disposition for this purpose. In general, if an option holder makes a
disqualifying disposition, the holder will have ordinary income in an amount
equal to the excess, if any, of (i) the lesser of (a) the fair market value of
the shares on the date of exercise or (b) the amount actually realized on the
disposition over (ii) the option exercise price. In addition, such holder would
realize further gain or loss equal to the difference between the amount realized
and the fair market value of the shares on the date of exercise (in the case of
a gain) or the option price (in the case of a loss). Such further gain or loss
would be either a long-term or short-term capital gain or loss, depending on the
option holder's holding period for the shares. The holding period for the shares
generally would begin on the date the shares were acquired and would not include
the period of time during which the stock option was held. In the case of a gift
or certain other transfers, the amount of ordinary income taxable to the option
holder is not limited to the amount of gain which would be recognized in the
case of a sale. Instead, it is equal to the excess of the fair market value of
the shares on the date of exercise over the option exercise price.
In
general, in the year of exercise of an incentive stock option, an option holder
must compute the excess of the fair market value of the shares issued upon
exercise over the exercise price and include this amount in the calculation of
his or her alternative minimum taxable income. Because of the many adjustments
that apply to the computation of the alternative minimum tax, it is not possible
to predict the application of the tax to any particular option holder. However,
an option holder may owe alternative minimum tax even though he or she has not
disposed of the shares or otherwise received any cash with which to pay the tax.
The alternative minimum tax rate is higher than the rate applicable to long-term
capital gains.
Nonqualified Stock Options.
The recipient of a non-qualified stock option under the 2005 Equity Incentive
Plan generally will not recognize any taxable income at the time the stock
option is granted. Upon exercise, the option holder will generally recognize
ordinary taxable income in an amount equal to the excess of the fair market
value of the shares of Common Stock received on the date of exercise over the
option exercise price. Upon a subsequent sale of the shares, long-term or
short-term capital gain or loss (depending upon the holding period) will
generally be recognized equal to the difference between the amount realized and
the fair market value of the shares on the date of exercise. The holding period
for the shares generally would begin on the date the shares were acquired and
would not include the period of time during which the stock option was
held.
Certain
option holders are subject to Section 16(b) of the Exchange Act (“Section
16(b)”) upon their sale of shares of Common Stock. If an option holder is
subject to Section 16(b), the date on which the fair market value of the shares
is determined may be postponed. The IRS regulations have not yet been amended to
conform with the most recent revision to Section 16(b). However, it is generally
anticipated that the date on which the fair market value of the shares is
determined (the “Determination Date”) will be postponed to the earlier of (i)
the date six months after the date the stock option was granted, or, if earlier,
(ii) the first day on which the sale of the shares would not subject the
individual to liability under Section 16(b). It is possible that the six month
period will instead run from the option holder's most recent grant or purchase
of Common Stock prior to his or her exercise of the stock option. On the
Determination Date, the option holder will generally recognize ordinary taxable
income in an amount equal to the excess of the fair market value of the shares
of Common Stock at that time over the option exercise price.
The
Company will generally be entitled to a compensation deduction for Federal
income tax purposes in an amount equal to the taxable income recognized by the
option holder, provided the Company reports the income on a timely provided and
filed Form W-2 or 1099, whichever is applicable.
Section
162(m) of the Code generally limits the deductibility of compensation paid to
the chief executive officer and the four other highest paid officers to
$1,000,000 per year. Performance-based compensation is not subject to this
limitation on deductibility. Compensation qualifies as performance-based only if
it is payable on account of the attainment of one or more performance goals and
certain other requirements are satisfied.
In the
case of a nonqualified stock option, an option holder who pays the option
exercise price, in whole or in part, by delivering shares of Common Stock
already owned by him or her will generally recognize no gain or loss for Federal
income tax purposes on the shares surrendered, but otherwise will be taxed
according to the rules described above. However, if shares received on the
exercise of an incentive stock option are used to exercise a nonqualified stock
option within the time periods that apply to a disqualifying disposition, then
the rules for disqualifying dispositions, described above, will apply. To the
extent the shares acquired upon exercise are equal in number to the shares
surrendered, the basis of the shares received will be equal to the basis of the
shares surrendered. The basis of the shares received in excess of the shares
surrendered upon exercise will be equal to the fair market value of the shares
on the date of exercise, and the holding period for the shares received will
commence on that date.
Restricted Stock Awards.
Generally, restricted stock is not taxable to a participant at the time of
grant, but instead is included in ordinary income (at its then fair market
value) when the restrictions lapse, unless a Section 83(b) election is made. A
participant may elect to recognize income at the time of grant, in which case
the fair market value of the stock at the time of grant is included in ordinary
income and there is no further income recognition when the restrictions lapse.
In order to be effective, the Section 83(b) election must be made and filed with
the IRS within 30 days after grant. The Company is entitled to a tax deduction
in an amount equal to the ordinary income recognized by the
participant.
Other Awards. In the case
of other Awards, the participant will generally recognize ordinary income in an
amount equal to any cash received and the fair market value of any shares
received on the date of payment or the date of delivery of the underlying shares
and the Company will generally be entitled to a corresponding tax
deduction.
Vote
Required to Approve the Amendment to the 2005 Equity Incentive Plan
The
affirmative vote of the holders of a majority of the holders of the Company's
Common Stock present in person or by proxy at the Meeting and entitled to vote
thereon is required for the approval of Proposal No. 2.
The
Board of Directors recommends that stockholders vote FOR the amendment to the
2005 Equity Incentive Plan.
Equity
Compensation Plan Information
The
Company maintains a number of equity compensation plans for employees, officers,
directors, and other entities and individuals whose efforts contribute to the
Company’s success. The table below sets forth certain information as of the
Company’s fiscal year ended December 31, 2009 regarding the shares of Common
Stock available for grant or granted under the Company’s equity compensation
plans.
|
|
|
Number of
|
|
|
|
|
|
Number of securities
|
|
|
|
|
securities to be
|
|
|
Weighted-average
|
|
|
remaining available
|
|
|
|
|
issued upon
|
|
|
exercise price of
|
|
|
for future issuance
|
|
|
|
|
exercise of
|
|
|
outstanding
|
|
|
under equity
|
|
|
Plan Category
|
|
outstanding options
|
|
|
options
|
|
|
compensation plans
|
|
|
Equity
compensation plans approved by security holders
|
|
|
1,564,500 |
|
|
$ |
2.52 |
|
|
|
174,500 |
|
Includes
the following plans: 1999 Non-Qualified Stock Option Plan and 2005 Equity
Incentive Plan.
On
February 12, 2009, pursuant to the terms of a Securities Purchase Agreement
entered into as of February 12, 2009 (the “Securities Purchase
Agreement”), the Company closed a private placement to 35 accredited
investors (“Private
Placement”), pursuant to which the Company issued and sold an aggregate
of 156,980 units, each unit consisting of (i) one share of a newly created
series of preferred stock, designated “Series A Convertible Preferred Stock,”
par value $0.01 per share (the “Series A Preferred
Stock”), (ii) a warrant to purchase, at the purchaser’s election to be
made within 7 days of the closing, either 10 shares of Company common stock, par
value $0.01 per share (“Common Stock”), at an
exercise price equal to $1.25 per share, with a term expiring 15 months after
the date of closing (“15 Month Common Stock
Warrant”), or one share of Series A Preferred Stock at an exercise price
equal to $12.50 per share, with a term expiring 15 months after the date of
closing (“15 Month
Preferred Stock Warrant”); and (iii) a warrant to purchase 10 shares of
Common Stock at an exercise price equal to $2.00 per share, with a term expiring
30 months after the date of closing (the “30 Month Common Stock
Warrants”). The purchase price for each unit was $11.50 (the “Purchase Price”),
resulting in aggregate gross proceeds to the Company of $1,805,270.
Mr. R.
Wayne Fritzsche and Mr. J. Donald Payne, two of the Company’s directors, and
each of Mr. Richard T. Schumacher, Mr. Matthew Potter, Dr. Nathan Lawrence, Dr.
Edmund Ting, and Dr. Alexander Lazarev, the Company’s executive officers,
participated in the Private Placement on the same terms as the other investors.
Specifically, these directors and officers purchased the following number of
units set forth opposite their names for the purchase price set forth opposite
their names:
|
Name and Position
|
|
Number of Units Purchased
|
|
|
Purchase Price
|
|
|
R.
Wayne Fritzsche, Chairman of the Board
|
|
|
21,931
|
|
|
$
|
252,207
|
|
|
J.
Donald Payne, Director
|
|
|
1,305
|
|
|
$
|
15,008
|
|
|
Richard
T. Schumacher, President and Chief Executive Officer
|
|
|
2,174
|
|
|
$
|
25,001
|
|
|
Nathan
P. Lawrence, PhD., Vice President of Marketing
|
|
|
522
|
|
|
$
|
6,003
|
|
|
Alexander
Lazarev, PhD., Vice President of Research and Development
|
|
|
435
|
|
|
$
|
5,003
|
|
|
Matthew
B. Potter, Vice President of Sales
|
|
|
130
|
|
|
$
|
1,495
|
|
|
Edmund
Y. Ting, PhD., Senior Vice President of Engineering
|
|
|
522
|
|
|
$
|
6,003
|
|
OTHER
MATTERS
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Exchange Act requires the Company's executive officers and
directors, and persons who own more than 10% of the Company's Common Stock, to
file reports of ownership and changes in ownership on Forms 3, 4 and 5 with the
SEC.
Based
solely on the Company’s review of the copies of such filings it has received and
written representations from certain reporting persons, the Company believes
that all of its executive officers, directors, and greater than 10% stockholders
complied with all Section 16(a) filing requirements applicable to them during
the Company’s fiscal year ended December 31, 2009.
Other
Proposed Action
The Board
of Directors knows of no matters which may come before the Meeting other than
the matters described in this proxy statement. However, if any other matters
should properly be presented to the Meeting, the persons named as proxies shall
have discretionary authority to vote the shares represented by the accompanying
proxy in accordance with their own judgment.
Stockholder
Proposals
Proposals
which stockholders intend to present at the Company's 2011 Annual Meeting of
Stockholders (“2011 Annual Meeting”) and wish to have included in the Company's
proxy materials pursuant to Rule 14a-8 promulgated under the Exchange Act, must
be received by the Company no later than January 14, 2011. If the date of next
year’s annual meeting is moved by more than 30 days before or after the
anniversary date of this year’s annual meeting, then the deadline for inclusion
of a stockholder proposal in the Company’s proxy materials is instead a
reasonable time before the Company begins to print and send its proxy materials
for that meeting.
Stockholders who wish to make a proposal at the Company’s 2011
Annual Meeting, other than one that will be included in the Company’s proxy
materials, should notify the Company no later than March 27, 2011, unless the
date of next year’s annual meeting is moved by more than 30 days before or after
the anniversary date of this year’s annual meeting, in which case the notice
must be received a reasonable time before the Company sends its proxy materials
for that meeting. If a proponent who wishes to present such a proposal at the
2011 Annual Meeting fails to notify the Company by the proper date, the proxies
solicited by the Board of Directors, with respect to such 2011 Annual Meeting,
may grant discretionary authority to the proxies named therein, to vote with
respect to such matter if such matter is properly brought before the 2011 Annual
Meeting. If a stockholder makes a timely notification, the proxies may still
exercise discretionary authority under circumstances consistent with the proxy
rules of the SEC.
Stockholders
may make recommendations to the Nominating Committee of candidates for its
consideration as nominees for director at the 2011 Annual Meeting by submitting
the name, qualifications, experience, and background of such person, together
with a statement signed by the nominee in which he or she consents to act as
such, to the Nominating Committee, c/o Clerk, Pressure BioSciences, Inc., 14
Norfolk Avenue, South Easton, MA 02375. Generally, under the Company’s Bylaws,
notice of such recommendations must be submitted in writing not later than 90
days prior to the anniversary date of the immediately preceding annual meeting
or special meeting in lieu thereof and must contain specified information and
conform to certain requirements set forth in the Company’s Bylaws. The Company
will accept from stockholders recommendations for nominees for director to be
considered in connection with the 2011 Annual Meeting no later than March 27,
2011. In addition, any persons recommended should at a minimum meet the criteria
and qualifications referred to in the Nominating Committee’s charter, a copy of
which may be obtained from the Company by written request sent to its principal
executive offices. The Nominating Committee may refuse to acknowledge the
nomination of any person not made in compliance with the procedures set forth
herein or in the Company’s Bylaws.
Incorporation
by Reference
To the
extent that this Proxy Statement has been or will be specifically incorporated
by reference into any filing by the Company under the Securities Act of 1933, as
amended, or the Exchange Act, the section of the Proxy Statement entitled “Audit
Committee Report” shall not be deemed to be so incorporated, unless specifically
otherwise provided in any such filing.
Annual
Report on Form 10-K
Additional
copies of the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2009, and as filed with the SEC, are available to stockholders
without charge upon written request addressed to Clerk, Pressure BioSciences,
Inc., 14 Norfolk Avenue, South Easton, MA 02375.
PROXY
PRESSURE
BIOSCIENCES, INC.
The
undersigned hereby appoints Richard T. Schumacher and Joseph Damasio, acting
singly, with full power of substitution, attorneys and proxies to represent the
undersigned at the 2010 Special Meeting in Lieu of Annual Meeting of
Stockholders of Pressure BioSciences, Inc. to be held on Friday, June 25, 2010
and at any adjournment(s) or postponement(s) thereof, with all power which the
undersigned would possess if personally present, and to vote all shares of stock
which the undersigned may be entitled to vote at said meeting upon the matters
set forth in the Notice of and Proxy Statement for the Meeting in accordance
with the following instructions and with discretionary authority upon such other
matters as may come before the Meeting. All previous proxies are hereby
revoked.
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. IT WILL BE VOTED AS
DIRECTED BY THE UNDERSIGNED AND IF NO DIRECTION IS INDICATED, IT WILL BE VOTED
FOR THE ELECTION OF THE NOMINEES AS DIRECTOR AND FORTHE AMENDMENT TO THE
COMPANY’S 2005 EQUITY INCENTIVE PLAN.
(IMPORTANT
- - TO BE SIGNED AND DATED ON THE REVERSE SIDE)
x Please indicate your vote below, as
in this example.
Election
of Directors - The Board of Directors recommends a vote FOR the election of the
nominees as directors.
1. To elect the following nominees as
Class II Directors:
|
|
|
For
|
Withhold
|
|
01
-
|
J.
Donald Payne
|
¨
|
¨
|
|
|
|
|
|
|
|
|
For
|
Withhold
|
|
02
-
|
Alan
D. Rosenson
|
¨
|
¨
|
2.
To amend the Company’s 2005 Equity Incentive Plan to increase the number of
shares of common stock available for issuance under the plan from 1,500,000 to
1,800,000.
|
|
|
¨
|
|
FOR
|
|
¨
|
|
AGAINST
|
|
¨
|
|
ABSTAIN
|
|
|
|
|
|
o
|
|
MARK
HERE FOR ADDRESS CHANGE AND NOTE SUCH CHANGE AT
LEFT
|
(Signatures
should be the same as the name printed hereon. Executors, administrators,
trustees, guardians, attorneys, and officers of corporations should add their
titles when signing).
|
Signature:
|
|
|
|
Title:
|
|
|
|
Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature:
|
|
|
|
Title:
|
|
|
|
Date:
|
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|