UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934
Filed
by the Registrant ☒ 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 §240.14a-12 |
NexGel,
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):
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No
fee required. |
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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Title
of each class of securities to which transaction applies:
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(2) |
Aggregate
number of securities to which transaction applies:
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(3) |
Per
unit price or other underlying value of transaction computed pursuant to Exchange Act Rule
0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
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(4) |
Proposed
maximum aggregate value of transaction:
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(5) |
Total
fee paid:
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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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(1) |
Amount
previously paid:
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(2) |
Form,
Schedule or Registration Statement No.:
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Filing
party:
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Filed:
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NexGel,
Inc.
2150
Cabot Blvd West, Suite B
Langhorne,
Pennsylvania 19047
(215)
702-8550
,
2022
Dear
Stockholder:
You
are cordially invited to attend the Annual Meeting of Stockholders of NexGel, Inc. to be held at 10:00 a.m., Eastern Time, on August
30, 2022, at our corporate headquarters located at 2150 Cabot Blvd West, Suite B, Langhorne, Pennsylvania 19047.
We
are distributing our proxy materials to certain stockholders via the Internet under the U.S. Securities and Exchange Commission “Notice
and Access” rules. We believe this approach allows us to provide stockholders with a timely and convenient way to receive proxy
materials and vote, while lowering the costs of delivery and reducing the environmental impact of our Annual Meeting. We are mailing
to our stockholders a Notice of Internet Availability of Proxy Materials (the “Notice of Internet Availability”) beginning
on or about , 2022, rather than a paper copy of the Proxy Statement,
the proxy card and our 2021 Annual Report, which includes our annual report on Form 10-K for the fiscal year ended December 31, 2021,
as amended. The Notice of Internet Availability contains instructions on how to access the proxy materials, vote and obtain, if desired,
a paper copy of the proxy materials.
Your
vote is very important, regardless of the number of shares of our voting securities that you own. Whether or not you expect to be present
at the Annual Meeting, after receiving the Notice of Internet Availability please vote as promptly as possible to ensure your representation
and the presence of a quorum at the Annual Meeting. As an alternative to voting in person at the Annual Meeting, you may vote via the
Internet, by telephone, or by signing, dating and returning the proxy card that is mailed to those that request paper copies of the Proxy
Statement and the other proxy materials. If your shares are held in the name of a broker, trust, bank or other nominee, and you receive
these materials through your broker or through another intermediary, please complete and return the materials in accordance with the
instructions provided to you by such broker or other intermediary or contact your broker directly in order to obtain a proxy issued to
you by your nominee holder to attend the meeting and vote in person. Failure to do so may result in your shares not being eligible to
be voted by proxy at the meeting.
On
behalf of the Board of Directors, I urge you to submit your vote as soon as possible, even if you currently plan to attend the meeting
in person.
Thank
you for your support of our company. I look forward to seeing you at the Annual Meeting.
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Sincerely, |
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/s/
Steven Glassman |
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Steven
Glassman |
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Chairperson
of the Board of Directors |
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR
THE STOCKHOLDER MEETING TO BE HELD ON AUGUST 30, 2022:
Our
official Notice of Annual Meeting of Stockholders, Proxy Statement, Form of Proxy Card and
2022
Annual Report to Stockholders are available at:
www.proxyvote.com
NEXGEL,
INC.
2150
Cabot Blvd West, Suite B
Langhorne,
Pennsylvania 19047
(215)
702-8550
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
To
Be Held August 30, 2022
The
2022 Annual Meeting of Stockholders (the “Annual Meeting”) of NexGel, Inc., a Delaware corporation (the “Company”),
will be held on August 30, 2022, at 10:00 a.m. Eastern Time, at our corporate headquarters located at 2150 Cabot Blvd West, Suite B,
Langhorne, Pennsylvania 19047. We will consider and act on the following items of business at the Annual Meeting:
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(1) |
Election
of seven directors to serve as directors on our Board of Directors to serve until our 2023 Annual Meeting of Stockholders or until
successors have been duly elected and qualified. |
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(2) |
A
proposal to approve an amendment to our Restated Certificate of Incorporation (the “Charter”), in substantially the form
attached to the proxy statement as Annex A, reduce the total number of authorized shares of our common stock, par value $0.001
per share, each from 750,000,000 to 25,000,000. |
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(3) |
An
advisory vote on the compensation of the Company’s named executive officers as disclosed in the Proxy Statement accompanying
this notice. |
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(4) |
An
advisory vote on the frequency of future advisory votes on the compensation of the Company’s named executive officers. |
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(5) |
Ratification
of the appointment of Turner, Stone & Company, L.L.P., as our independent registered public accounting firm for the 2022 fiscal
year. |
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(6) |
Such
other business as may arise and that may properly be conducted at the Annual Meeting or any adjournment or postponement thereof. |
Stockholders
are referred to the proxy statement accompanying this notice (the “Proxy Statement”) for more detailed information with respect
to the matters to be considered at the Annual Meeting. After careful consideration, the Board of Directors recommends a vote “FOR”
the election of the nominees as directors (Proposal 1); “FOR” Proposals 2, 3, and 5; and “FOR” holding an advisory
vote every three years regarding approval of the compensation of the Company’s named executive officers (Proposal 4).
The
Board of Directors has fixed the close of business on July 6, 2022, as the record date (the “Record Date”) for the Annual
Meeting. A complete list of registered stockholders entitled to vote at the Annual Meeting will be available for inspection at the office
of the Company during regular business hours for the ten (10) calendar days prior to and during the Annual Meeting.
YOUR
VOTE AND PARTICIPATION IN THE COMPANY’S AFFAIRS ARE IMPORTANT.
If
your shares are registered in your name, even if you plan to attend the Annual Meeting or any postponement or adjournment of the
Annual Meeting in person, we request that you vote by telephone, over the Internet, or complete, date, sign and mail the enclosed form
of proxy in accordance with the instructions set out in the proxy card and in the Proxy Statement to ensure that your shares will be
represented at the Annual Meeting.
If
your shares are held in the name of a broker, trust, bank or other nominee, and you receive these materials through your broker or
through another intermediary, please complete and return the materials in accordance with the instructions provided to you by such broker
or other intermediary or contact your broker directly in order to obtain a proxy issued to you by your nominee holder to attend the Annual
Meeting and vote in person. Failure to do so may result in your shares not being eligible to be voted by proxy at the Annual Meeting.
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By
Order of the Board of Directors, |
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/s/
Steven Glassman |
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Steven
Glassman |
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Chairperson
of the Board of Directors |
,
2022
TABLE
OF CONTENTS
NEXGEL,
INC.
2150
Cabot Blvd West, Suite B
Langhorne,
Pennsylvania 19047
(215)
702-8550
PROXY
STATEMENT
FOR
ANNUAL
MEETING OF STOCKHOLDERS
To
Be Held August 30, 2022
Unless
the context otherwise requires, references in this Proxy Statement to “we,” “us,” “our,” “the
Company,” or “NexGel” refer to NexGel, Inc., a Delaware corporation, and its consolidated subsidiaries as a whole.
In addition, unless the context otherwise requires, references to “stockholders” are to the holders of our common stock,
par value $0.001 per share, each of whom is entitled to vote at the 2022 annual meeting of stockholders of the Company (the “Annual
Meeting”).
The
accompanying proxy is solicited by the Board of Directors (the “Board”) on behalf of NexGel, Inc. to be voted at the Annual
Meeting to be held on August 30, 2022, at the time and place and for the purposes set forth in the accompanying Notice of Annual Meeting
of Stockholders (the “Notice”) and at any adjournment(s) or postponement(s) of the Annual Meeting. This Proxy Statement and
accompanying form of proxy are dated , 2022 and are expected to be first
sent or given to stockholders on or about , 2022.
The
executive offices of the Company are located at, and the mailing address of the Company is 2150 Cabot Blvd West, Suite B, Langhorne,
Pennsylvania 19047.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS
FOR
THE STOCKHOLDER MEETING TO BE HELD ON August 30, 2022:
As
permitted by the “Notice and Access” rules of the U.S. Securities and Exchange Commission (the “SEC”), we are
making this Proxy Statement, the proxy card and our Annual Report available to stockholders electronically via the Internet at the following
website: www.proxyvote.com.
On
or about , 2022, we mailed to our stockholders a Notice of Internet Availability of Proxy
Materials (the “Notice of Internet Availability”) that contains instructions on how stockholders may access and review all
of the proxy materials and how to vote. Also on or about , 2022, we began mailing printed copies of the proxy materials to stockholders
that previously requested printed copies. If you received a Notice of Internet Availability by mail, you will not receive a printed copy
of the proxy materials in the mail unless you request a copy. If you received a Notice of Internet Availability by mail and would like
to receive a printed copy of our proxy materials, you should follow the instructions for requesting such materials included in the Notice
of Internet Availability.
ABOUT
THE ANNUAL MEETING
What
is a proxy?
A
proxy is another person that you legally designate to vote your stock. If you designate someone as your proxy in a written document,
that document is also called a “proxy” or a “proxy card.” If you are a “street name” holder, you
must obtain a proxy from your broker or nominee in order to vote your shares in person at the Annual Meeting.
What
is a proxy statement?
A
proxy statement is a document that regulations of the SEC require that we give to you when we ask you to sign a proxy card to vote your
stock at the Annual Meeting.
Why
did I receive a Notice of Internet Availability of Proxy Materials instead of paper copies of the proxy materials?
We
are using the SEC’s Notice and Access model (“Notice and Access”), which allows us to deliver proxy materials over
the Internet, as the primary means of furnishing proxy materials. We believe Notice and Access provides stockholders with a convenient
method to access the proxy materials and vote, while allowing us to conserve natural resources and reduce the costs of printing and distributing
the proxy materials. On or about , 2022, we began mailing to stockholders
a Notice of Internet Availability containing instructions on how to access our proxy materials on the Internet and how to vote online.
The Notice of Internet Availability is not a proxy card and cannot be used to vote your shares. If you received a Notice of Internet
Availability this year, you will not receive paper copies of the proxy materials unless you request the materials by following the instructions
on the Notice of Internet Availability.
What
is the purpose of the Annual Meeting?
At
our Annual Meeting, stockholders will act upon the matters outlined in the Notice, which include the following:
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(1) |
seven
directors to serve as directors on our Board of Directors to serve until our 2023Annual Meeting of Stockholders or until successors
have been duly elected and qualified (“Proposal 1”); |
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(2) |
A
proposal to approve an amendment to our Restated Certificate of Incorporation (the “Charter”), in substantially the form
attached to the proxy statement as Annex A, reduce the total number of authorized shares of our common stock, par value $0.001
per share, each from 750,000,000 to 25,000,000 (“Proposal 2”); |
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(3) |
an
advisory vote on the compensation of the Company’s named executive officers as disclosed in the Proxy Statement accompanying
this notice (“Proposal 3”); |
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(4) |
an
advisory vote on the frequency of future advisory votes on the compensation of the Company’s named executive officers (“Proposal
4”); |
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(5) |
ratification
of the appointment of Turner, Stone & Company, L.L.P. as our independent registered public accounting firm for the 2022 fiscal
year (“Proposal 5”); and |
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(6) |
such
other business as may arise and that may properly be conducted at the Annual Meeting or any adjournment or postponement thereof. |
What
should I do if I receive more than one set of voting materials?
You
may receive more than one Notice of Internet Availability (or, if you requested a printed copy of the proxy materials, this Proxy Statement
and the proxy card) or voting instruction card. For example, if you hold your shares in more than one brokerage account, you will receive
a separate voting instruction card for each brokerage account in which you hold shares. Similarly, if you are a stockholder of record
and hold shares in a brokerage account, you will receive a Notice of Internet Availability (or, if you requested a printed copy of the
proxy materials, a proxy card) for shares held in your name and a voting instruction card for shares held in “street name.”
Please follow the separate voting instructions that you received for your shares common stock held in each of your different accounts
to ensure that all of your shares are voted.
What
is the record date and what does it mean?
The
record date to determine the stockholders entitled to notice of and to vote at the Annual Meeting is the close of business on July 6,
2022 (the “Record Date”). The Record Date is established by the Board as required by Delaware law. On the Record Date, 5,572,234
shares of common stock were issued and outstanding.
Who
is entitled to vote at the Annual Meeting?
Our
common stock is the only class of security entitled to vote at our Annual Meeting.
What
are the voting rights of the stockholders?
Each
holder of common stock is entitled to one vote per share of common stock on all matters to be acted upon at the Annual Meeting.
The
presence, in person or by proxy, of the holders of a majority of the voting power of the issued and outstanding shares of stock entitled
to vote at the Annual Meeting is necessary to constitute a quorum to transact business. If a quorum is not present or represented at
the Annual Meeting, then either (i) chairperson of the meeting or (ii) the stockholders entitled to vote thereat, present in person or
represented by proxy, may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum
is present or represented.
What
is the difference between a stockholder of record and a “street name” holder?
If
your shares are registered directly in your name with Continental Stock Transfer & Trust Co., the Company’s stock transfer
agent, you are considered the stockholder of record with respect to those shares. The Notice of Internet Availability has been sent directly
to you by the Company.
If
your shares are held in a stock brokerage account or by a bank or other nominee, the nominee is considered the record holder of those
shares. You are considered the beneficial owner of these shares, and your shares are held in “street name.” The Notice of
Internet Availability has been forwarded to you by your nominee. As the beneficial owner, you have the right to direct your nominee concerning
how to vote your shares by using the voting instructions the nominee included in the mailing or by following such nominee’s instructions
for voting.
What
is a broker non-vote?
Broker
non-votes occur when shares are held indirectly through a broker, bank or other intermediary on behalf of a beneficial owner (referred
to as held in “street name”) and the broker submits a proxy but does not vote for a matter because the broker has not received
voting instructions from the beneficial owner and (i) the broker does not have discretionary voting authority on the matter or (ii) the
broker chooses not to vote on a matter for which it has discretionary voting authority. Under the rules of the Nasdaq Stock Market that
govern how brokers may vote shares for which they have not received voting instructions from the beneficial owner, brokers are permitted
to exercise discretionary voting authority only on “routine” matters when voting instructions have not been timely received
from a beneficial owner. Proposal 5 is considered a “routine matter.” Therefore, if you do not provide voting instructions
to your broker regarding such proposal, your broker will be permitted to exercise discretionary voting authority to vote your shares
on such proposal. In the absence of specific instructions from you, your broker does not have discretionary authority to vote your shares
with respect to Proposals 1, 3, or 4 but does have discretionary authority to vote your shares with respect to Proposals 2 and 5.
How
do I vote my shares?
If
you are a record holder, you may vote your shares at the Annual Meeting in person or by proxy. To vote in person, you must attend the
Annual Meeting and obtain and submit a ballot. The ballot will be provided at the Annual Meeting. To vote by proxy, you may choose one
of the following methods to vote your shares:
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Via
Internet: as prompted by the menu found at www.proxyvote.com, follow the instructions to obtain your records and submit an electronic
ballot. Please have your Stockholder Control Number, which can be found on the bottom of the Notice of Internet Availability, when
you access this voting site. You may vote via the Internet until 11:59 p.m., Eastern Time, on August 29, 2022. |
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Via
telephone: call 1-800-690-6903 and then follow the voice instructions. Please have your Stockholder Control Number, which can
be found on the bottom of the Notice of Internet Availability, when you call. You may vote by telephone until 11:59 p.m., Eastern
Time, on August 29, 2022. |
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Via
mail: if you requested printed proxy materials as provided in the Notice of Internet Availability and would like to vote by mail,
complete and sign the accompanying proxy card and return it in the postage-paid envelope provided. If you submit a signed proxy without
indicating your vote, the person voting the proxy will vote your shares according to the Board’s recommendation. |
The
proxy is fairly simple to complete, with specific instructions on the electronic ballot, telephone or card. By completing and submitting
it, you will direct the designated persons (known as “proxies”) to vote your stock at the Annual Meeting in accordance with
your instructions. The Board has appointed Adam Levy and Adam Drapczuk to serve as the proxies for the Annual Meeting.
Your
proxy will be valid only if you complete and return it before the Annual Meeting. If you properly complete and transmit your proxy but
do not provide voting instructions with respect to a proposal, then the designated proxies will vote your shares “FOR”
each proposal as to which you provide no voting instructions in accordance with the Board’s recommendation in the manner described
under “What if I do not specify how I want my shares voted?” below. We do not anticipate that any other matters will come
before the Annual Meeting, but if any other matters properly come before the meeting, then the designated proxies will vote your shares
in accordance with applicable law and their judgment.
If
you hold your shares in “street name,” your bank, broker or other nominee should provide to you a request for voting instructions
along with the Company’s proxy solicitation materials. By completing the voting instruction card, you may direct your nominee how
to vote your shares. If you partially complete the voting instruction but fail to complete one or more of the voting instructions, then
your nominee may be unable to vote your shares with respect to the proposal as to which you provided no voting instructions. See “What
is a broker non-vote?” Alternatively, if you want to vote your shares in person at the Annual Meeting, you must contact your nominee
directly in order to obtain a proxy issued to you by your nominee holder. Note that a broker letter that identifies you as a stockholder
is not the same as a nominee-issued proxy. If you fail to bring a nominee-issued proxy to the Annual Meeting, you will not be able
to vote your nominee-held shares in person at the Annual Meeting.
Who
counts the votes?
All
votes will be tabulated by a representative of Broadridge Financial Solutions, the inspector of election appointed for the Annual Meeting.
Each proposal will be tabulated separately.
Can
I vote my shares in person at the Annual Meeting?
Yes.
If you are a stockholder of record, you may vote your shares at the meeting by completing a ballot at the Annual Meeting.
If
you hold your shares in “street name,” you may vote your shares in person only if you obtain a proxy issued by your bank,
broker or other nominee giving you the right to vote the shares.
Even
if you currently plan to attend the Annual Meeting, we recommend that you also return your proxy or voting instructions as described
above so that your votes will be counted if you later decide not to attend the Annual Meeting or are unable to attend.
What
are my choices when voting?
In
the election of the nominees as directors (Proposal 1), stockholders may vote for the director nominees or may withhold their votes as
to one or more director nominees. With respect to the advisory vote on the frequency of future advisory votes on the compensation of
the Company’s named executive officers (Proposal 4), stockholders may vote to choose an advisory vote on executive compensation
every one, two or three years or to abstain from voting on the proposal. With respect to the approval of the amendment to the Charter
to reduce the number of authorized shares of common stock (Proposal 2), the advisory vote on executive compensation (Proposal 3) and
the ratification of the independent registered public accounting firm (Proposal 5), stockholders may vote for the proposal, against the
proposal, or abstain from voting on the proposal.
What
are the Board’s recommendations on how I should vote my shares?
The
Board recommends that you vote your shares as follows:
Proposal
1—FOR the election of the nominees as directors.
Proposal
2—FOR approval of the amendment to the Charter to reduce the number of authorized shares of common stock.
Proposal
3—FOR the approval of the executive compensation as disclosed in these materials.
Proposal
4—FOR an advisory vote on executive compensation every three years.
Proposal
5—FOR the ratification of the appointment of the independent registered public accounting firm.
What
if I do not specify how I want my shares voted?
If
you are a record holder who returns a completed proxy that does not specify how you want to vote your shares on one or more proposals,
the proxies will vote your shares for each proposal as to which you provide no voting instructions, and such shares will be voted in
the following manner:
Proposal
1—FOR the election of the nominees as directors.
Proposal
2—FOR the approval of the amendment to the Charter to reduce the number of authorized shares of common stock.
Proposal
3—FOR the approval of the executive compensation as disclosed in these materials.
Proposal
4—FOR an advisory vote on executive compensation every three years.
Proposal
5—FOR the ratification of the appointment of the independent registered public accounting firm.
If
you are a “street name” holder and do not provide voting instructions on one or more proposals, your bank, broker or other
nominee may be unable to vote those shares. See “What is a broker non-vote?” above.
Can
I change my vote?
Yes.
If you are a record holder, you may revoke your proxy at any time by any of the following means:
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Attending
the Annual Meeting and voting in person. Your attendance at the Annual Meeting will not by itself revoke a proxy. You must vote your
shares by ballot at the Annual Meeting to revoke your proxy. |
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Completing
and submitting a new valid proxy bearing a later date. |
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Giving
written notice of revocation to the Company addressed to Adam Drapczuk, Chief Financial Officer, at the Company’s address above,
which notice must be received before 5:00 p.m., Eastern Time, on August 29, 2022. |
If
you are a “street name” holder, your bank, broker or other nominee should provide instructions explaining how you may change
or revoke your voting instructions.
What
votes are required to approve each proposal?
Assuming
the presence of a quorum, with respect to Proposal 1, the affirmative vote of the holders of a plurality of the votes cast at the Annual
Meeting is required for the election of the director nominees, i.e., the seven director nominees who receive the most votes will
be elected.
Assuming
the presence of a quorum, approval of Proposal 2 and will require the affirmative vote of a majority of the number of votes entitled
to voter for or against the proposal.
Assuming
the presence of a quorum, the approval of the executive compensation (Proposal 3), and the ratification of the independent registered
public accounting firm (Proposal 5) will require the affirmative vote of the holders of a majority of the shares of our voting securities
represented in person or by proxy at the Annual Meeting entitled to vote on such proposal that voted for or against such proposal. For
the advisory vote on how frequently our stockholders should vote on the compensation of our named executive officers in (Proposal 4),
the number of years (1, 2 or 3) that receives the highest number of votes will be deemed to be preferred by our stockholders. Please
note that the vote on executive compensation (Proposal 3) and the vote on the frequency of future advisory votes on the compensation
of the Company’s named executive officers (Proposal 4) are non-binding advisory votes.
How
are abstentions and broker non-votes treated?
Abstentions
are included in the determination of the number of shares present at the Annual Meeting for determining a quorum at the meeting. Abstentions
will have no effect with respect to the election of the nominees as directors (Proposal 1), the advisory vote on executive compensation
(Proposal 3), the advisory vote on the frequency of future advisory votes on the compensation of the Company’s named executive
officers (Proposal 4) or the ratification of the independent registered public accounting firm (Proposal 5). Abstentions will have the
same effect as a vote against the proposal to approve the amendment to the Charter to reduce the number of authorized shares of common
stock (Proposal 2).
Broker
non-votes are included in the determination of the number of shares present at the Annual Meeting for determining a quorum at the meeting.
Broker non-votes will have no effect upon the election of the nominees as directors (Proposal 1), the advisory vote on executive compensation
(Proposal 3), and the advisory vote on the frequency of future advisory votes on the compensation of the Company’s named executive
officers (Proposal 4). With respect to the proposal to approve the amendment to the Charter to reduce the number of authorized shares
of common stock (Proposal 2) and the proposal to ratify the appointment of the independent registered public accounting firm (Proposal
5), broker-non-votes are not applicable because such proposal is considered a routine matter and therefore a broker holding shares for
a beneficial owner will have discretionary authority to vote those shares for such proposal in the absence of voting instructions from
the beneficial owner.
Do
I have any dissenters’ or appraisal rights with respect to any of the matters to be voted on at the Annual Meeting?
No.
None of our stockholders has any dissenters’ or appraisal rights with respect to the matters to be voted on at the Annual Meeting.
What
are the solicitation expenses and who pays the cost of this proxy solicitation?
Our
Board is asking for your proxy and we will pay all of the costs of asking for stockholder proxies. We will reimburse brokerage houses
and other custodians, nominees and fiduciaries for their reasonable out-of-pocket expenses for forwarding solicitation material to the
beneficial owners of common stock and collecting voting instructions. We may use officers and employees of the Company to ask for proxies,
as described below.
Is
this Proxy Statement the only way that proxies are being solicited?
No.
In addition to the solicitation of proxies by use of the Notice of Internet Availability, officers and employees of the Company may solicit
the return of proxies, either by mail, telephone, telecopy, e-mail or through personal contact. These officers and employees will not
receive additional compensation for their efforts but will be reimbursed for out-of-pocket expenses. Brokerage houses and other custodians,
nominees and fiduciaries, in connection with shares of the common stock registered in their names, will be requested to forward solicitation
material to the beneficial owners of shares of common stock.
Are
there any other matters to be acted upon at the Annual Meeting?
Management
does not intend to present any business at the Annual Meeting for a vote other than the matters set forth in the Notice and has no information
that others will do so. If other matters requiring a vote of the stockholders properly come before the Annual Meeting, it is the intention
of the persons named in the form of proxy to vote the shares represented by the proxies held by them in accordance with applicable law
and their judgment on such matters.
Where
can I find voting results?
We
expect to publish the voting results in a current report on Form 8-K, which we expect to file with the SEC within four business days
after the Annual Meeting.
Who
can help answer my questions?
The
information provided above in this “Question and Answer” format is for your convenience only and is merely a summary of the
information contained in this Proxy Statement. We urge you to carefully read this entire Proxy Statement, including the documents we
refer to in this Proxy Statement. If you have any questions, or need additional materials, please feel free to contact our Chief Financial
Officer, Adam Drapczuk, at (215) 702-8550.
PROPOSAL
1: ELECTION OF DIRECTORS
Nominees
for Election
The
Board currently is comprised of seven directors. Our Board, upon the recommendation of the Nominating and Corporate Governance Committee,
has nominated the following seven individuals to serve as directors (collectively, the “Company Nominees”):
| Name |
|
Age |
|
| Adam
Levy |
|
|
59 |
|
| Steven
Glassman |
|
|
57 |
|
| Yaakov
Spinrad |
|
|
32 |
|
| David
Stefansky |
|
|
50 |
|
| Nachum
Stein |
|
|
73 |
|
| Miranda
J. Toledano |
|
|
45 |
|
| Dr.
Jerome B. Zeldis, M.D., Ph.D. |
|
|
72 |
|
If
elected, respectively, these nominees will serve until our 2023 Annual Meeting of Stockholders or until successors have been duly elected
and qualified. Our board of directors believes that all of our current directors, including the seven nominees for election, possess
personal and professional integrity, good judgment, a high level of ability and business acumen.
If
a quorum is present, the Company Nominees will be elected by a plurality of the votes cast at the Annual Meeting. Abstentions and broker
non-votes have no effect on the vote. The seven Company Nominees receiving the highest number of affirmative votes will be elected directors
of the Company. Shares of voting stock represented by executed proxies will be voted, if authority to do so is not withheld, for the
election of the seven nominees named below. Should any Company Nominee become unable or unwilling to accept nomination or election, the
proxy holders may vote the proxies for the election, in his or her stead, of any other person the Board may nominate or designate. Each
Company Nominee has agreed to serve, if elected, and the Board has no reason to believe that any Company Nominee will be unable to serve.
The
Board and the Nominating and
Corporate Governance Committee continue to frequently evaluate the optimal size and composition of the Board to allow it to operate nimbly
and efficiently, while maintaining new ideas, expertise, experience and diversity among its membership. As of July 7, 2022, a female
comprises approximately 14% of our Board. We currently have no underrepresented minorities on our Board.
| Board
Diversity Matrix (as of July 7, 2022) |
| Total
Number of Directors |
7 |
| |
|
Female |
|
Male |
| Part
I: Gender Identity |
|
1 |
|
6 |
| Part
II: Demographic Background |
|
|
|
|
| White |
|
1 |
|
6 |
The
biographies of the Company Nominees are as follows:
Adam
Levy. Mr. Levy has served as our Chief Executive Officer and President since September 10, 2019 and was our Chief Financial Officer
from December 31, 2019 until June 1, 2021. Mr. Levy has also served on our Board since September 9, 2021. Mr. Levy is an investment banker
associated with Cova Capital and has been a capital markets specialist for the past six years. Prior to that, he was the president and
CEO of Warlock Records Inc. and its related companies from its inception in 1985. While at Warlock, he led the successful turn-around
of several financially distressed music companies as part of a roll up strategy. He has expertise in consumer products, marketing, television/radio
advertising and direct to consumer sales.
Steven
Glassman. Steven Glassman has served on our Board of Director since March 8, 2021. He is currently the Chief Operating Officer
for Nephila Advisors, LLC, a Nashville, TN based firm focused on catastrophic reinsurance and weather risk transfer markets in connection
with the capital markets. From January 2018 until now, Mr. Glassman focused on Global Business Initiatives at Nephila.
From 2010 to 2017, Mr. Glassman served as the Chief Management Officer of Nephila Capital Ltd. Prior to joining Nephila, Mr. Glassman
worked at Merrill Lynch in New York in their real estate principal investment group from 1986 to 2009. Mr. Glassman holds a
Bachelor of Arts in Economics from Vanderbilt University.
Yaakov
Spinrad, Director. Mr. Spinrad has served on our Board of Directors since September 9, 2021. Mr. Spinrad is currently a Venture
Partner at Cane Investment Partners, a private investment firm located in Chicago, Illinois. Mr. Spinrad also serves as Chief Executive
Officer of Vitae Health Systems, a multi-specialty healthcare solutions private company headquartered in Chicago, Illinois. Mr. Spinrad
currently serves on the Board of Directors of Key Autism Services, Third Eye Health, Vitae Health Systems, Relief Mental Health and Hampton
Social, all of which are private companies. Prior to Cane Investment Partners’ founding, he worked at a single-family office, where
he was both the director of acquisitions, and responsible for numerous portfolio operating companies, and real estate investments.
David
Stefansky, Director. Mr. Stefansky has served on our Board of Directors since September 10, 2019. Mr.
Stefansky is a principal at Bezalel Partners, LLC, a private company engaged in principal investments and advisory services for early
stage companies. He previously served in senior roles at investment banks and in executive and corporate director roles for private and
publicly traded companies.
Nachum
Stein, Director. Mr. Stein has served on our Board of Directors since September 10, 2019. Mr. Stein is managing partner of HSI
Partnership, an industrial and real estate investment family partnership. Mr. Stein previously served as Co-Chairperson of the Board
of Directors of Coleman Cable Co., a publicly traded company until its sale in 2014 for more than $700 million. In 1987, he founded American
European Group, a private insurance holding company (“AEG”). Mr. Stein is Chairperson and Chief Executive Officer of AEG.
Mr. Stein and his family currently own a majority of AEG. Mr. Stein is a former Chairperson of the Board of Directors of Beth Jacob of
Boro Park, the largest Jewish Community School for girls in the United States, and also a former member of the Board of Directors of
Machon Bais Yakov Hilda Birn High School, and a member of the Board of Trustees of Agudath Israel of America as well as active in various
community philanthropies, and committees of Jewish institutions of higher studies.
Miranda
J. Toledano, Director. Ms. Toledano has served on our Board of Directors since September 9, 2021. Since May 2022, she has served
as the Chief Business Officer, Chief Financial Officer and Head of Corporate Strategy of Entera Bio Ltd. (Nasdaq: ENTX), where she has
also served as member of the board of directors since September 2018. Since its founding in 2018, Ms. Toledano served as Chief Operating
Officer, Chief Financial Officer and Director at TRIGR Therapeutics, a private clinical stage immuno-oncology company focused on bispecific
antibodies which was acquired by Compass Therapeutics in June 2021. Ms. Toledano currently serves as a director of Compass Therapeutics
(Nasdaq: CMPX), Journey Medical (Nasdaq: DERM) and Lipomedix, a private company located in Israel. Additionally, Ms. Toledano served
on the executive management team of Sorrento Therapeutics (Nasdaq: SRNE) as EVP Corporate Development from September 2016 until August
2017. From 2012 to 2016, Ms. Toledano served as Head of Healthcare Investment Banking at MLV & Co. (acquired by B. Riley FBR &
Co.), where she completed equity capital market transactions totaling over $4 billion in aggregate value. Prior to joining MLV, from
2004 until 2010, Ms. Toledano served in the investment group of Royalty Pharma (Nasdaq: RPRX). From 1998 to 2003, Ms. Toledano led the
Life Sciences Corporate Finance group at Ernst & Young (Israel). Ms. Toledano holds a BA in Economics from Tufts University and an
MBA in Finance and Entrepreneurship from the NYU Stern School of Business.
Dr.
Jerome B. Zeldis, M.D., Ph.D., Director. Dr. Zeldis has served on our Board of Directors since April 1, 2020. Since
April 2020, Dr. Zeldis has been serving as the executive chairperson ViralClear Pharmaceuticals, Inc., a partially owned subsidiary of
BioSig Technologies, Inc. (NASDAQ: BSGM), a company for which Dr. Zeldis has also been a member of the Board of Directors since May 2019.
From 2016 to March 2019, Dr. Zeldis served as Chief Medical Officer and President of Clinical Research, Medical Affairs Drug Safety,
Quality, and Regulatory at Sorrento Therapeutics, Inc. From 2014 until 2016, Dr. Zeldis served as chief executive officer of Celgene
Global Health and chief medical officer of Celgene Corporation. Since June 2011, Dr. Zeldis has been a director of Soligenix, Inc. and
PTC Therapeutics, Inc. He attended Brown University for an AB, MS, followed by Yale University for an MPhil, MD, and PhD in Molecular
Biophysics and Biochemistry. Dr. Zeldis trained in Internal Medicine at the UCLA Center for the Health Sciences and in Gastroenterology
at the Massachusetts General Hospital and Harvard Medical School. He was Assistant Professor of Medicine at the Harvard Medical School,
Associate Professor of Medicine at University of California, Davis, Clinical Associate Professor of Medicine at Cornell Medical School
and Professor of Clinical Medicine at the Robert Wood Johnson Medical School in New Brunswick, New Jersey.
Family
Relationships
There
are no family relationships among any of NexGel’s directors or executive officers except that Mr. Stefansky is the uncle of Mr.
Spinrad.
Required
Vote and Board Recommendation
If
a quorum is present and voting, the seven Company Nominees receiving the highest number of votes will be elected as directors. If you
hold your shares in your own name and abstain from voting on the election of directors, your abstention will have no effect on the vote.
If you hold your shares through a broker and you do not instruct the broker on how to vote for the seven Company Nominees, your broker
will not have the authority to vote your shares. Abstentions and broker non-votes will each be counted as present for purposes of determining
the presence of a quorum but will not have any effect on the outcome of the vote.
| The
Board recommends that you vote “FOR” each Company Nominee. |
CORPORATE
GOVERNANCE
NexGel,
with the oversight of the Board and its committees, operates within a comprehensive plan of corporate governance for the purpose of defining
independence, assigning responsibilities, setting high standards of professional and personal conduct and assuring compliance with such
responsibilities and standards. We regularly monitor developments in the area of corporate governance.
Code
of Business Conduct and Ethics
We
have adopted a Code of Business Conduct and Ethics that applies to our officers, directors and employees, including our principal financial
officer and principal accounting officer. The Code of Business Conduct and Ethics addresses, among other things, conflicts of interest,
protection and proper use of Company assets, government relations, compliance with laws, rules and regulations and the process for reporting
violations of the Code of Business Conduct and Ethics, improper conflicts of interest or other violations. Our Code of Business Conduct
and Ethics is available on our website at www.NexGeltech.com in the “Governance Documents” section found under the “Investors”
tab. We intend to disclose any future amendments to certain provisions of the Code of Business Conduct and Ethics, or waivers of such
provisions granted to executive officers and directors, on this website within four business days following the date of any such amendment
or waiver.
Board
Composition
Our
Amended and Restated Certificate of Incorporation and our Amended and Restated Bylaws (“Bylaws”) provide that our Board will
consist of one or more members, such number of directors to be determined from time to time pursuant to a resolution adopted by a majority
of the total number of authorized directors. Vacancies or newly created directorships resulting from an increase in the authorized number
of directors elected by all of the stockholders having the right to vote as a single class may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director.
We
have no formal policy regarding Board diversity. Our Board believes that each director should have a basic understanding of the principal
operational and financial objectives and plans and strategies of the Company, our results of operations and financial condition and relative
standing in relation to our competitors. We take into consideration the overall composition and diversity of the Board and areas of expertise
that director nominees may be able to offer, including business experience, knowledge, abilities and customer relationships. Generally,
we will strive to assemble a Board that brings to us a variety of perspectives and skills derived from business and professional experience
as we may deem are in our and our stockholders’ best interests. In doing so, we will also consider candidates with appropriate
non-business backgrounds.
Director
Independence
We
are currently listed on the NASDAQ Capital Market and therefore rely on the definition of independence set forth in the NASDAQ Listing
Rules (“NASDAQ Rules”). Under the NASDAQ Rules, a director will only qualify as an “independent director” if,
in the opinion of our Board, that person does not have a relationship that would interfere with the exercise of independent judgment
in carrying out the responsibilities of a director. Based upon information requested from and provided by each director concerning his
background, employment, and affiliations, including family relationships, we have determined that each of Steven Glassman, Yaakov Spinrad,
Miranda J. Toledano and Dr. Jerome B. Zeldis has no material relationships with us that would interfere with the exercise of independent
judgment and is an “independent director” as that term is defined in the NASDAQ Listing Rules.
Board
Committees, Meetings and Attendance
During
2021, the Board held seven meetings. We expect our directors to attend Board meetings, meetings of any committees and subcommittees on
which they serve and each annual meeting of stockholders. During 2021, we had no incumbent director who attended fewer than 75% of the
total number of meetings held by the Board and Board committees of which such director was a member.
We
encourage our Board members to attend the annual meeting. This will be our first ever annual meeting.
The
Board delegates various responsibilities and authority to different Board committees. Committees regularly report on their activities
and actions to the full Board. Currently, the Board has established an Audit Committee, a Compensation Committee and a Nominating and
Corporate Governance Committee. Committee assignments are re-evaluated annually. Each of these committees operates under a charter that
has been approved by our Board.
As
of , 2022, the following table sets forth the membership of each of
the Board committees listed above.
| Name |
|
Audit
Committee |
|
Compensation
Committee |
|
Nominating
and
Corporate Governance
Committee |
| Adam
Levy |
|
|
|
|
|
|
| Steven
Glassman* |
|
Member |
|
Chairperson |
|
|
| Yaakov
Spinrad |
|
|
|
Member |
|
Member |
| David
Stefansky |
|
|
|
|
|
|
| Nachum
Stein |
|
|
|
|
|
|
| Miranda
J. Toledano |
|
Chairperson |
|
|
|
Member |
| Dr.
Jerome B. Zeldis, M.D., Ph.D. |
|
Member |
|
Member |
|
Chairperson |
| * |
Chairperson
of the Board of Directors |
Audit
Committee
Our
audit committee is currently comprised of Mr. Glassman, Ms. Toledano and Mr. Zeldis, each of whom our board has determined is financially
literate and qualifies as an independent director under Section 5605(a)(2) and Section 5605(c)(2) of the Nasdaq rules. Ms. Toledano is
the chairperson of our audit committee and Ms. Toledano qualifies as an audit committee financial expert, as defined in Item 407(d)(5)(ii)
of Regulation S-K.
Our
audit committee has adopted a written audit committee charter, viewable at https://nexgel.com/corporategovernance, that provides that
the functions of our audit committee include, among other things:
| |
● |
selecting
a qualified firm to serve as the independent registered public accounting firm to audit our financial statements; |
| |
|
|
| |
● |
helping
to ensure the independence and performance of the independent registered public accounting firm; |
| |
|
|
| |
● |
discussing
the scope and results of the audit with the independent registered public accounting firm, and reviewing, with management and the
independent accountants, our interim and year-end operating results; |
| |
|
|
| |
● |
developing
procedures for employees to submit concerns anonymously about questionable accounting or audit matters; |
| |
|
|
| |
● |
reviewing
our policies on risk assessment and risk management; |
| |
|
|
| |
● |
reviewing
and approving related party transactions; |
| |
|
|
| |
● |
obtaining
and reviewing a report by the independent registered public accounting firm, at least annually, that describes our internal quality-control
procedures, any material issues with such procedures, and any steps taken to deal with such issues when required by applicable law;
and |
| |
|
|
| |
● |
approving
(or, as permitted, pre-approving) all audit and all permissible non-audit services, other than de minimis non-audit services, to
be performed by the independent registered public accounting firm. |
Compensation
Committee
Our
compensation committee is currently comprised of Mr. Glassman, Mr. Spinrad and Mr. Zeldis. Our board has determined that each of Mr.
Glassman, Mr. Spinrad and Mr. Zeldis qualifies as an independent director under Section 5605(a)(2) of the Nasdaq rules and a “non-employee
director” for purposes of Section 16b-3 under the Exchange Act and does not have a material relationship with us that would affect
his ability to be independent from management in connection with the duties of a compensation committee member, as described in Section
5605(d)(2) of the Nasdaq rules. Mr. Glassman is the chairperson of our compensation committee.
Our
compensation committee has adopted a written compensation committee charter, viewable at https://nexgel.com/corporategovernance, that
provides that the functions of our compensation committee include, among other things:
| |
● |
reviewing
and approving, or recommending to our board of directors for approval, the compensation of our executive officers and any compensatory
arrangement with our executive officers; |
| |
|
|
| |
● |
reviewing
and recommending to our board of directors for approval the compensation of our directors and any changes to their compensation; |
| |
|
|
| |
● |
reviewing
and approving, or recommending to our board of directors for approval, and administering incentive compensation and equity incentive
plans; and |
| |
|
|
| |
● |
reviewing
and establishing general policies relating to compensation and benefits of our employees and reviewing our overall compensation philosophy. |
Nominating
and Corporate Governance Committee
Our
nominating and corporate governance committee is currently comprised of Mr. Spinrad, Ms. Toledano and Mr. Zeldis. Our board has determined
that each of Mr. Spinrad, Ms. Toledano and Mr. Zeldis qualifies as an independent director under Section 5605(a)(2) of the Nasdaq rules.
Mr. Zeldis is the chairperson of our nominating and corporate governance committee.
Our
nominating and corporate governance committee has adopted a written nominating and corporate governance committee charter, viewable at
https://nexgel.com/corporategovernance, that provides that the functions of our nominating and corporate governance committee include,
among other things:
| |
● |
identifying,
evaluating and selecting, or making recommendations to our board of directors regarding, nominees for election to our board of directors
and its committees; |
| |
|
|
| |
● |
overseeing
the evaluation and the performance of our board of directors and of individual directors; |
| |
|
|
| |
● |
considering
and making recommendations to our board of directors regarding the composition of our board of directors and its committees; |
| |
|
|
| |
● |
overseeing
our corporate governance practices; |
| |
|
|
| |
● |
contributing
to succession planning; and |
| |
|
|
| |
● |
developing
and making recommendations to our board of directors regarding corporate governance guidelines and matters. |
Director
Nominations
Our
Nominating and Corporate Governance Committee considers all qualified candidates identified by members of the Board, by senior management
and by stockholders. The Nominating and Corporate Governance Committee follows the same process and uses the same criteria for evaluating
candidates proposed by stockholders, members of the Board and members of senior management. We did not pay fees to any third party to
assist in the process of identifying or evaluating director candidates during 2021 nor during 2022 thus far.
Our
Bylaws contain provisions that address the process by which a stockholder may nominate an individual to stand for election to the Board
at our Annual Meeting. To recommend a nominee for election to the Board, a stockholder must submit his or her recommendation to our Secretary
at our corporate offices at 2150 Cabot Blvd West, Suite B, Langhorne, Pennsylvania 19047. Such nomination must satisfy the notice, information
and consent requirements set forth in our Bylaws and must be received by us prior to the date set forth under “Stockholder Proposals”
below. A stockholder’s recommendation must be accompanied by the information with respect to stockholder nominees as specified
in our Bylaws, including among other things, the name, age, address and occupation of the recommended person, the proposing stockholder’s
name and address, the ownership interests of the proposing stockholder and any beneficial owner on whose behalf the nomination is being
made (including the number of shares beneficially owned, any hedging, derivative, short or other economic interests and any rights to
vote any shares) and any material monetary or other relationships between the recommended person and the proposing stockholder and/or
the beneficial owners, if any, on whose behalf the nomination is being made.
In
evaluating director nominees, the Nominating and Corporate Governance Committee considers the following factors:
| |
● |
the
appropriate size and diversity of our Board; |
| |
|
|
| |
● |
our
needs with respect to the particular knowledge, skills and experience of nominees, including experience in corporate finance, technology,
business, administration and sales, in light of the prevailing business conditions and the knowledge, skills and experience already
possessed by other members of the Board; |
| |
|
|
| |
● |
experience
with accounting rules and practices, and whether such a person qualifies as an “audit committee financial expert” pursuant
to SEC rules; and |
| |
|
|
| |
● |
balancing
continuity of our Board with periodic injection of fresh perspectives provided by new Board members. |
Our
Board believes that each director should have a basic understanding of our principal operational and financial objectives and plans and
strategies, our results of operations and financial condition and our relative standing in relation to our competitors.
In
identifying director nominees, the Board will first evaluate the current members of the Board willing to continue in service. Current
members of the Board with skills and experience that are relevant to our business and who are willing to continue in service will be
considered for re-nomination.
If
any member of the Board does not wish to continue in service or if the Board decides not to re-nominate a member for re-election, the
Board will identify another nominee with the desired skills and experience described above. The Board takes into consideration the overall
composition and diversity of the Board and areas of expertise that director nominees may be able to offer, including business experience,
knowledge, abilities and customer relationships. Generally, the Board will strive to assemble a Board that brings to us a variety of
perspectives and skills derived from business and professional experience as it may deem are in our and our stockholders’ best
interests. In doing so, the Board will also consider candidates with appropriate non-business backgrounds.
Communications
with Directors
The
Board welcomes communication from our stockholders. Stockholders and other interested parties who wish to communicate with a member or
members of our Board or a committee thereof may do so by addressing correspondence to the Board member, members or committee, c/o Secretary,
NexGel, Inc., 2150 Cabot Blvd West, Suite B, Langhorne, Pennsylvania 19047. Our Secretary will review and forward correspondence to the
appropriate person or persons.
All
communications received as set forth in the preceding paragraph will be opened by our Secretary for the sole purpose of determining whether
the contents represent a message to our directors. Any contents that are not in the nature of advertising, promotions of a product or
service or patently offensive material will be forwarded promptly to the addressee(s). In the case of communications to the Board or
any group or committee of directors, our Secretary will make sufficient copies of the contents to send to each director who is a member
of the group or committee to whom the communication is addressed. If the amount of correspondence received through the foregoing process
becomes excessive, our Board may consider approving a process for review, organization and screening of the correspondence by our Secretary
or another appropriate person.
Involvement
in Certain Legal Proceedings
There
have been no material legal proceedings that would require disclosure under the federal securities laws that are material to an evaluation
of the ability or integrity of our directors or executive officers, or in which any director, officer, nominee or principal stockholder,
or any affiliate thereof, is a party adverse to us or has a material interest adverse to us.
DIRECTOR
COMPENSATION
During
the period of December 31, 2021, non-employee members of our board of directors were compensated as follows:
| Name | |
Fees
earned or
paid in
cash | | |
Stock
Award | | |
Option
Awards | | |
Non-equity
Incentive Plan
Compensation | | |
Nonqualified
Deferred
Compensation
Earnings | | |
All
other
Compensation | | |
Total | |
| Steve Glassman(1) | |
$ | — | | |
$ | — | | |
$ | 37,818 | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | 37,818 | |
| Yaakov Spinrad(3) | |
$ | — | | |
$ | — | | |
$ | 72,961 | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | 72,961 | |
| David Stefansky | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | |
| Nachum Stein | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | |
| Miranda J Toledano(3)
| |
$ | — | | |
$ | — | | |
$ | 72,961 | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | 72,961 | |
| Dr. Jerome B. Zeldis(2)
| |
$ | — | | |
$ | — | | |
$ | 50,424 | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | 50,424 | |
(1)
On March 8, 2021, the Company appointed Steven Glassman to the Board of Directors to serve for a term expiring at the next annual
meeting of stockholders or until his successor is duly elected and qualified. On March 8, 2021 and in consideration for his appointment
to the board of directors, the Company granted Mr. Glassman an option to purchase up to 14,286 shares of common stock at a per share
exercise price of $2.80 under the Company’s 2019 Long-Term Incentive Plan. This option award fully vested as of the date of grant.
(2)
On March 8, 2021, the Company granted Dr. Jerome Zeldis, a member of the Company Board, an option to purchase up to 19,050 shares
of the Company’s common stock at a per share exercise price of $2.10 under the Company’s 2019 Long-Term Incentive Plan. This
option award fully vested as of the date of grant.
(3)
On September 2, 2021, the Company appointed Yaakov Spinrad and Miranda J. Toledano to the Board of Directors to serve for a term
expiring at the next annual meeting of stockholders or until his successor is duly elected and qualified. On September 9, 2021 and in
consideration for each person’s appointment to the board of directors, the Company granted each of Mr. Spinrad and Ms. Toledano
an option to purchase up to 14,286 shares of common stock at a per share exercise price of $5.25 under the Company’s 2019 Long-Term
Incentive Plan. This option award vests in four equal calendar quarter installments beginning on October 1, 2021.
Equity
Compensation
For
fiscal 2022, we have not yet determined the compensation level for our non-employee members of the Board of Directors.
Indemnification
of Directors and Officers
Our
Certificate of Incorporation allows us to indemnify our present and former officers and directors and other personnel against liabilities
and expenses arising from their service to the full extent permitted by Delaware law. The persons indemnified include our (i) present
or former directors or officers, (ii) any person who while serving in any of the capacities referred to in clause (i) who served at our
request as a director, officer, partner, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, and (iii) any person nominated or designated by (or pursuant
to authority granted by) our Board of Directors or any committee thereof to serve in any of the capacities referred to in clauses (i)
or (ii).
STOCK
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth information about beneficial ownership of our common stock as of July 6, 2022, (unless otherwise noted) by
(i) each stockholder that has indicated in public filings that the stockholder beneficially owns more than five percent of the common
stock, (ii) each of the Company’s directors and named officers and (iii) all directors and officers as a group. Except as otherwise
noted, each person listed below, either alone or together with members of the person’s family sharing the same household, had,
to our knowledge, sole voting and investment power with respect to the shares listed next to the person’s name.
| Name and
address(1) | |
Number
of shares
beneficially
owned | | |
Percentage
of
ownership
(2) | |
| 5% stockholders | |
| | | |
| | |
| None | |
| - | | |
| - | |
| Directors and officers | |
| | | |
| | |
| Steven Glassman | |
| 129,378 | (3) | |
| 2.32 | % |
| Yaakov Spinrad | |
| 14,286 | (4) | |
| * | |
| David Stefansky (5) | |
| 291,472 | (6) | |
| 5.14 | % |
| Nachum Stein | |
| 586,504 | (7) | |
| 10.33 | % |
| Miranda J. Toledano | |
| 3,572 | (8) | |
| * | |
| Dr. Jerome Zeldis | |
| 116,600 | (9) | |
| 2.08 | % |
| Adam Levy | |
| 309,694 | (10) | |
| 5.54 | % |
| Adam E. Drapczuk | |
| 20,000 | | |
| * | |
| (All Directors and officers as a group 8 persons) | |
| 1,484,039 | (11) | |
| 25.31 | % |
*
Less than 1%.
| (1) |
Except
as indicated, the address of the person named in the table is c/o NexGel, Inc., 2150 Cabot Boulevard West, Suite B, Langhorne, PA
19667. |
| (2) |
In
computing the number of shares beneficially owned by a person and the percentage ownership of that person, shares of the common stock
subject to options or warrants held by that person that are currently exercisable or will become exercisable within 60 days after
July 6, 2022, are deemed outstanding, while the shares are not deemed outstanding for purposes of computing percentage ownership
of any other person. Except as otherwise indicated, and subject to applicable community property laws, the persons named in the table
have sole voting and investment power with respect to all shares of the common stock held by them. Applicable percentage ownership
is based on 5,572,234 shares of the common stock outstanding as of July 6, 2022. The inclusion in the table above of any shares deemed
beneficially owned does not constitute an admission of beneficial ownership of those shares. |
| (3) |
Consists
of (i) 115,092 shares of common stock and (ii) options to purchase 14,286 shares of common stock which are currently exercisable.
|
| (4) |
Consists
entirely of options that are either exercisable or will become exercisable within 60 days of July 6, 2022. |
| (5) |
Mr.
Stefansky is the spouse of Esther Friedman, who owns 178,572 shares of the Company’s common stock. Ms. Stefansky disclaims
beneficial ownership of all shares held by Ms. Friedman. |
| (6) |
Consists
of (i) 12,219 shares of common stock, (ii) 178,572 shares of common stock held through Bezalel Partners LLC, which is solely owned
and managed by Mr. Stefansky and (iii) options to purchase 100,681 shares of common stock that are currently exercisable. |
| (7) |
Consists
of (i) 481,358 shares of common stock and (ii) options or warrants to purchase 105,146 shares of common stock that are currently
exercisable. |
| (8) |
Consists
of (i) 1,819 shares of common stock and (ii) options to purchase 14,286 that are either exercisable or will become exercisable within
60 days of July 6, 2022. |
| (9) |
Consists
of (i) 88,028 shares of common stock and (ii) options to purchase 26,191 shares of common stock which are currently exercisable.
|
| (10) |
Consists
of (i) 295,408 shares of common stock and (ii) options to purchase 14,286 that are either exercisable or will become exercisable
within 60 days of July 6, 2022. |
| (11) |
Consists
of (i) 1,192,496 shares of common stock and (ii) options or warrants to purchase 291,543 shares of common stock that are either exercisable
or will become exercisable within 60 days of July 6, 2022. |
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
In
addition to the compensation arrangements with our directors and executive officers, including those discussed in the sections titled
“Management” and “Executive Compensation,” the following is a description of each transaction since January 1,
2019 and each currently proposed transaction in which:
| |
● |
we
have been or are to be a participant; |
| |
|
|
| |
● |
the
amount involved exceeded or exceeds the lesser of $120,000 or one percent of the average of our total assets at year-end for the
last two completed fiscal years (which was approximately $20,274); and |
| |
|
|
| |
● |
any
of our directors, executive officers or holders of more than 5% of our outstanding capital stock, or any immediate family member
of, or person sharing the household with, any of these individuals or entities, had or will have a direct or indirect material interest. |
On
May 29, 2020 (the “Closing Date”), we entered into a Membership Interest Purchase Agreement (the “Purchase Agreement”)
whereby we purchased all of the outstanding equity securities of Sport Defense LLC, a Delaware limited liability company (“Sports
Defense”), from the members of Sport Defense (the “Sellers”). Subsequent to the Closing Date, Sport Defense is a wholly-owned
subsidiary of the Company. Sport Defense is a marketing and distribution company that leverages the unique benefits of ultra-gentle,
high-water content hydrogels, manufactured by the Company, to build brands that treat various ailments of the skin caused by athletic
training, such as blisters, turf burns, scrapes and skin irritations.
Under
the terms of the Purchase Agreement, the purchase price paid to the Sellers was an aggregate of $375 thousand (the “Purchase Price”)
which was paid by the Company through the issuance of an aggregate of 267,858 shares of the Company’s common stock, par value $0.001
(the “Shares”), which equates to a per share purchase price of $1.40. The Shares are “restricted securities”
as such term is defined by Rule 144 promulgated under the Securities Act of 1933, as amended.
Adam
Levy, the Company’s Chief Executive Officer and Chief Financial Officer, and Nachum Stein, a member of the Company’s Board
of Directors (the “Board”), were each members of Sport Defense and part of the Sellers. Mr. Levy received 44,197 of the Shares
and Mr. Stein received 91,072 of the Shares. Due to the potential conflict of interest that existed because of Messrs. Levy and Stein’s
partial ownership of Sport Defense, the Board obtained an independent investment bank to prepare a valuation report with respect to Sport
Defense. This valuation report supported the Purchase Price. Also, Mr. Stein recused himself from the vote of the Board regarding the
approval to purchase Sport Defense.
Related-Party
Transaction Policy
Our
audit committee charter that gives our audit committee the primary responsibility for reviewing and approving or disapproving “related-party
transactions,” which are generally transactions between us and related persons in which the aggregate amount involved exceeds or
may be expected to exceed $120,000 and in which a related person has or will have a direct or indirect material interest. The written
charter of our audit committee provides that our audit committee shall review and approve in advance any related-party transaction.
In
approving or rejecting any related party transactions, our audit committee considers the relevant facts and circumstances available and
deemed relevant to our audit committee, including whether the transaction is on terms no less favorable than terms generally available
to an unaffiliated third party under the same or similar circumstances and the extent of the related person’s interest in the transaction.
Prior
to the formation of our audit committee, our entire board of directors has been responsible for approving related-party transactions.
The transactions described above were approved by our board of directors.
SECTION
16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section
16(a) of the Securities Exchange Act of 1934, as amended, requires our directors and officers, and persons who own more than ten percent
of our common stock, to file with the SEC initial reports of ownership and reports of changes in ownership of our common stock. To our
knowledge, based solely on a review of the copies of such reports furnished to us, during the fiscal year ended December 31, 2021, we
believe that all filing requirements applicable to our officers, directors and greater than ten percent stockholders were complied with
for the fiscal year ended December 31, 2021
EXECUTIVE
COMPENSATION
Compensation
Philosophy and Practices
We
believe that the performance of our executive officers significantly impacts our ability to achieve our corporate goals. We, therefore,
place considerable importance on the design and administration of our executive officer compensation program. This program is intended
to enhance stockholder value by attracting, motivating and retaining qualified individuals to perform at the highest levels and to contribute
to our growth and success. Our executive officer compensation program is designed to provide compensation opportunities that are tied
to individual and corporate performance.
Our
compensation packages are also designed to be competitive in our industry. The Compensation Committee from time-to-time consults with
other advisors in designing our compensation program, including in evaluating the competitiveness of individual compensation packages
and in relation to our corporate goals.
Our
overall compensation philosophy has been to pay our executive officers an annual base salary and to provide opportunities, through cash
and equity incentives, to provide higher compensation if certain key performance goals are satisfied.
The
main principles of our fiscal year 2021 compensation strategy included the following:
| |
● |
An
emphasis on pay for performance. A significant portion of our executive officers’ total compensation is variable and at
risk and tied directly to measurable performance, which aligns the interests of our executives with those of our stockholders; |
| |
|
|
| |
● |
Equity
as a key component to align the interests of our executives with those of our stockholders. Our Compensation Committee continues
to believe that keeping executives interests aligned with those of our stockholders is critical to driving toward achievement of
long-term goals of both our stockholders and the Company. |
Executive
Officers
The
following table sets forth the names, ages and positions of our executive officers and certain significant employees as of , December
31, 2021 and currently:
| Name |
|
Age |
|
Position |
| Adam
Levy |
|
59 |
|
Chief
Executive Officer, President and Director |
| Adam
E. Drapczuk III |
|
46 |
|
Chief
Financial Officer |
Executive
Officers
Adam
Levy, Chief Executive Officer, President and Director
Mr.
Levy has served as our Chief Executive Officer and President since September 10, 2019 and was our Chief Financial Officer from December
31, 2019 until June 1, 2021. Mr. Levy has also served on our Board since September 9, 2021. Mr. Levy is an investment banker associated
with Cova Capital and has been a capital markets specialist for the past six years. Prior to that, he was the president and CEO of Warlock
Records Inc. and its related companies from its inception in 1985. While at Warlock, he led the successful turn-around of several financially
distressed music companies as part of a roll up strategy. He has expertise in consumer products, marketing, television/radio advertising
and direct to consumer sales.
Adam
E. Drapczuk, Chief Financial Officer
Mr.
Drapczuk has served as our Chief Financial Officer since June 1, 2021. Mr. Drapczuk served as Financial Controller for R-Pharm US, a
private fully integrated specialty pharmaceutical company focused on commercial opportunities to treat cancer and chronic immune diseases
from September 2016 to April 2020 and has remained in a consulting role with the company since then. He also served as Vice President
of Finance, CFO, for Inpellis, Inc.; Controller and Director of Finance for Tris Pharma; and Director of Finance for West-Ward Pharmaceuticals
Corp. Mr. Drapczuk began his career in accounting and finance at KPMG LLP, servicing the firm’s assurance clients. He received
his B.S. in accounting at Susquehanna University in Selinsgrove, PA.
Summary
Compensation Table
The
following table summarizes all compensation received by our named executive officer December 31, 2021 and 2020:
| Name and
principal position | |
Year | | |
Salary
($) | | |
Bonus
($) | | |
Stock
Awards
($) | | |
Option
Awards
($) | | |
Nonequity
Incentive Plan
Compensation
($) | | |
Change
in
Pension
Value and
Nonqualified
Deferred
Compensation
Earnings ($) | | |
All
Other
Compensation
($) | | |
Total
($) | |
Adam Levy,
Chief Executive
Officer (1) | |
| 2021 | | |
| 180,000 | | |
| 50,000 | | |
| - | | |
| 72,961 | (2) | |
| - | | |
| - | | |
| - | | |
| 302,961 | |
| | |
| 2020 | | |
| 143,077 | | |
| - | | |
| 83,000 | | |
| - | | |
| - | | |
| - | | |
| - | | |
| 226,077 | |
| | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Adam E. Drapczuk III,
Chief Financial
Officer (3) | |
| 2021 | | |
| 36,332 | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| 36,332 | |
| | |
| 2020 | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
| |
(1) |
Mr.
Levy was appointed as our Chief Executive Officer and President on September 10, 2019 and our Chief Financial Officer on December
31, 2019. On June 1, 2021, Adam E. Drapczuk was appointed to replace Mr. Levy as our Chief Financial Officer. |
| |
(2) |
On
September 9, 2021, the Company granted a stock option of 14,286 shares of the Company’s common stock at a per share exercise
price of $5.25 under the Company’s 2019 Long-Term Incentive Plan to Mr. Levy for his service as a board of director. The shares
vest equally over four quarters, from October 1, 2021 through July 1, 2022. |
| |
(3) |
Mr.
Drapczuk was appointed our Chief Financial Officer on June 1, 2021. Mr. Drapczuk does not currently have an employment agreement
with the Company. |
Employment
Agreements
Prior
to November 4, 2021, Mr. Levy, our Chief Executive Officer, did not have an employment agreement with us. However, on November 4, 2021,
we entered into an executive employment agreement with Mr. Levy which became effective upon our common stock being initially listed for
trading on any tier of the NASDAQ Capital Market on December 27, 2021 (the “Initial Public Offering”). The term of the agreement
is for one year from the Initial Public Offering.
Pursuant
to the agreement, Mr. Levy is paid a base salary of $300,000 per year. Additionally, Mr. Levy is eligible for cash bonuses as follows:
(i) $33,000 in the event the we achieve net income for two consecutive fiscal calendar quarters for the period which is one year after
the Initial Public Offering (the “Net Income Bonus”) and (ii) $67,000 in the event the average closing price of our common
stock over any consecutive three month period during the first year subsequent to the Initial Public Offering equals or exceeds one hundred
and fifty percent (150%) the price per share at which our common stock is sold at the Initial Public Offering (the “Trading Price
Bonus”). Both the Net Income Bonus and the Trading Price Bonus may be earned if both thresholds are achieved or either the Net
Income Bonus or the Trading Price Bonus may be earned if only one of the thresholds is achieved. The Net Income Bonus and the Trading
Price Bonus survive the termination of Mr. Levy so long as the termination is not for cause (as defined in the agreement) and the applicable
thresholds are achieved within the one year period after the Initial Public Offering.
Mr.
Levy is also entitled receive a grant of shares of our common stock equal to $50,000 divided by the per share price at which our common
stock is sold at the Initial Public Offering (the “Equity Grant”). The Equity Grant vests in twelve equal monthly installments
(subject to any rounding adjustments) during the term of the agreement with the first installment vesting on the effective date. Mr.
Levy is also eligible to receive, from time to time, additional equity awards under our existing equity incentive plan, or any other
equity incentive plan we may adopt in the future, and the terms and conditions of such awards, if any, would be determined by our Board
of Directors or Compensation Committee, in their discretion. Mr. Levy is eligible to participate in any benefit plan or program we adopt.
Pursuant
to Mr. Levy’s agreement, if Mr. Levy’s employment is terminated upon his disability, Mr. Levy is entitled to receive, in
addition to other unpaid amounts owed to him (e.g., for base salary, accrued personal time and business expenses): (i) his then base
salary for a period of three months (in accordance with our general payroll policy) commencing on the first payroll period following
the fifteenth day after termination of employment and (ii) substantially similar coverage under our then-current medical, health and
vision insurance coverage for a period of three months. Additionally, if Mr. Levy’s employment is terminated for disability, the
vesting of any option grants would continue to vest pursuant to the schedule and terms previously established during the three month
severance period. Subsequent to the three month severance period the vesting of any option grants would immediately cease. The severance
benefits described above are collectively referred to in this registration statement as the “Severance Benefits”.
Pursuant
to Mr. Levy’s agreement and during the initial six months of the term of the agreement, if Mr. Levy resigns for good reason (as
defined in the agreement) or is terminated by us without cause (as defined in the agreement), Mr. Levy would be entitled to receive (i)
his then base salary (in accordance with our general payroll policy) commencing on the first payroll period following the fifteenth day
after termination of employment and (ii) substantially similar coverage under our then-current medical, health and vision insurance coverage
for a period of one year.
Pursuant
to Mr. Levy’s agreement and subsequent to the initial six months of the term of the agreement, if Mr. Levy resigns for good reason
or is terminated by us without cause or if we fail to enter into a new employment agreement with Mr. Levy at the end of term of the agreement
after bona fide and good faith negotiation between us and Mr. Levy, Mr. Levy would be entitled to receive Severance Benefits for a period
of one year less one month for each month (on a pro-rated basis) such termination or resignation occurs subsequent to the initial six
month anniversary of the term (the “Adjusted Severance Period”). For example, in the event Mr. Levy is terminated without
cause or resigns for good reason at the end of the eight month anniversary of the effective date, Mr. Levy would be entitled to an Adjusted
Severance Period of ten months.
If
we terminate Mr. Levy’s employment for cause or employment terminates as a result of Mr. Levy’s resignation (without good
reason) or death, Mr. Levy would only be entitled to any salary earned but unpaid prior to termination, all accrued but unused personal
time, and any business expenses that were incurred but not reimbursed as of the date of the termination. Vesting of any option grants
would immediately cease.
Mr.
Levy’s agreement also contains certain non-competition, non-solicitation, confidentiality, and assignment of inventions provisions
whereby Mr. Levy is subject to non-competition and non-solicitation restrictions for a period of one year and two years following termination
of his employment respectively.
We
do not have employment agreements with Mr. Drapczuk, our Chief Financial Officer, or any of our other employees, each of whom are employees-at-will.
Outstanding
Equity Awards at Fiscal Year-End
The
following table sets forth information regarding equity awards that have been previously awarded to each of the named executive officers
and which remained outstanding as of December 31, 2021.
| Name | |
Number
of securities
underlying unexercised
options (#) exercisable | | |
Number
of securities
underlying
unexercised options
(#) unexercisable | | |
Option
exercise
price ($) | | |
Option
expiration
date | | |
Number
of Shares or Units of Stock that have not Vested (#) | | |
Market
Value of Shares of Units That Have Not Vested ($) | | |
Equity
Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights that Have Not Vested (#) | | |
Equity
Incentive Plan Awards: Market of Payout Value of Unearned Shares, Units or Other Rights that Have Not Vested ($) | |
| Adam Levy | |
| 3,571 | | |
| 10,715 | | |
| 5.25 | | |
| 9/9/2031 | | |
| - | | |
| - | | |
| - | | |
| - | |
| Adam E. Drapczuk III | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
NexGel
2019 Long-Term Incentive Plan
On
March 8, 2019, our stockholders approved the 2019 Long-Term Incentive Plan (the “2019 Plan”), which was adopted by our board
of directors on March 8, 2019. The 2019 Plan provides for the granting of incentive stock options, nonqualified stock options, restricted
stock, stock appreciation rights, restricted stock units, performance awards, dividend equivalent rights, and other awards, which may
be granted singly, in combination, or in tandem, and which may be paid in cash, shares of our common stock, or a combination of cash
and shares of our common stock. We initially reserved a total of 57,143 shares of our common stock for awards under the 2019 Plan. Effective
as of May 26, 2020 and May 3, 2021, respectively, the 2019 Plan was amended to approve an increase of the number of authorized shares
of common stock reserved under the 2019 Plan from 57,143 shares of common stock to 485,715 shares of common stock and from 485,715 shares
of common stock to 571,429 shares of common stock, all of which may be delivered pursuant to incentive stock options. The maximum number
of shares of common stock that may be delivered pursuant to incentive stock options under the 2019 Plan is 571,429 shares and the maximum
number of shares of common stock with respect to which stock options or stock appreciation rights may be granted to an executive officer
during any calendar year is 14,286 shares of common stock.
Equity
Compensation Plan Information
The
following table provides certain information as of December 31, 2021, with respect to our equity compensation plans under which our equity
securities are authorized for issuance:
| Plan Category | |
Number
of securities
to be
issued upon exercise
of outstanding options (a) | | |
Weighted- average exercise price
of outstanding options (b) | | |
Securities
remaining available
for future issuance
under equity compensation
plans (excluding
securities reflected
in column (a)) (c) | |
| Equity compensation plan approved
by security holders | |
| 434,939 | | |
$ | 1.68 | | |
| 136,490 | |
| Equity compensation plan not approved by security
holders | |
| - | | |
$ | - | | |
| - | |
| Total | |
| 434,939 | | |
$ | 1.68 | | |
| 136,490 | |
AUDIT
COMMITTEE MATTERS
Audit
Committee Report
The
Audit Committee assists the Board in its general oversight of the Company’s financial reporting processes. The Audit Committee
Charter describes in greater detail the full responsibilities of the Audit Committee. During each fiscal year, the Audit Committee reviews
the Company’s financial statements, management reports, internal control over financial reporting and audit matters. In connection
with these reviews, the Audit Committee meets with management and independent public accountants at least once each quarter. The Audit
Committee schedules its meetings with a view to ensuring that it devotes appropriate attention to all of its tasks. These meetings include,
whenever appropriate, executive sessions in which the Audit Committee meets separately with the independent public accountants, financial
management personnel and legal counsel.
As
part of its review of audit matters, the Audit Committee supervises the relationship between the Company and its independent registered
public accountants, including: having direct responsibility for their appointment, compensation and retention; reviewing the scope of
their audit services; approving audit and non-audit services; and confirming the independence of the independent public accountants.
Together with senior members of the Company’s financial management team, the Audit Committee reviewed the overall audit scope and
plans of the independent public accountants, the results of external audit examinations, and evaluations by management of the Company’s
internal control over financial reporting and the quality of the Company’s financial reporting.
In
addition, the Audit Committee reviewed key initiatives and programs aimed at designing and maintaining an effective internal and disclosure
control structure. As part of this process, the Audit Committee continued to monitor the scope and adequacy of the steps taken to maintain
the effectiveness of internal procedures and controls.
In
performing all of these functions, the Audit Committee acts in an oversight capacity. The Audit Committee reviews and discusses the quarterly
and annual consolidated financial statements with management, and the Company’s independent public accountants prior to their issuance.
In its oversight role, the Audit Committee relies on the work and assurances of the Company’s management, which is responsible
for establishing and maintaining adequate internal control over financial reporting, preparing the financial statements and other reports
and maintaining policies relating to legal and regulatory compliance, ethics and conflicts of interest. Turner, Stone & Company,
L.L.P. is responsible for performing an independent audit of the consolidated financial statements and expressing an opinion on the conformity
of those financial statements with accounting principles generally accepted in the United States of America.
The
Audit Committee has reviewed with the independent public accountants the matters required to be discussed by the applicable requirements
of the Public Company Accounting Oversight Board and the SEC including a discussion with management and the independent public accountants
of the quality (and not merely the acceptability) of the Company’s accounting principles, the reasonableness of significant estimates
and judgments and the disclosures in the Company’s financial statements. In addition, the Audit Committee reviewed and discussed
with Turner, Stone & Company, L.L.P. matters related to its independence, including a review of audit and non-audit fees and the
written disclosures in the letter from Turner, Stone & Company, L.L.P. to the Audit Committee required by applicable requirements
of the Public Company Accounting Oversight Board regarding the independent public accountant’s communication with the Audit Committee
concerning independence. The Audit Committee concluded that Turner, Stone & Company, L.L.P. is independent from the Company and its
management.
Taking
all these reviews and discussions into account, the Audit Committee recommended to the Board that the audited financial statements be
included in NexGel’s Annual Report on Form 10-K for fiscal year 2021, for filing with the SEC.
AUDIT
COMMITTEE
Miranda
J. Toledano, Chairperson
Steven
Glassman
Dr.
Jerome B. Zeldis
The
Report of the Audit Committee set forth in this Proxy Statement shall not be deemed to be “soliciting material” or to be
“filed” with the SEC or subject to Regulation 14A or 14C under the Exchange Act or to the liabilities of Section 18 of the
Exchange Act. In addition, it shall not be deemed incorporated by reference by any statement that incorporates this Proxy Statement by
reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that the Company specifically
incorporates this information by reference.
Fees
to Independent Registered Public Accounting Firm
Since
2019, Turner, Stone & Company, L.L.P., Dallas, Texas (PCAOB ID 76), has acted as our independent registered public accounting firm.
For the years ended December 31, 2021 and 2020, Turner, Stone & Company, L.L.P. billed us the fees set forth below, including expenses,
in connection with services rendered by that firm to us.
| | |
Year
Ended December 31, | |
| | |
2021 | | |
2020 | |
| Audit Fees | |
$ | 75,745 | | |
$ | 49,107 | |
| Audit-Related Fees | |
| 46,200 | | |
| - | |
| Tax Fees | |
$ | - | | |
| | |
| All Other Fees | |
| - | | |
| | |
| TOTAL | |
$ | 121,945 | | |
$ | 49,107 | |
“Audit
Fees” consisted of fees billed for professional services rendered by the principal accountant for the audit of our annual financial
statements and review of the financial statements included in our Forms 10-K and 10-Q or services that are normally provided by the accountant
in connection with statutory and regulatory filings or engagements.
“Audit-Related
Fees” consisted of fees billed for assurance and related services by the principal accountant that were reasonably related
to the performance of the audit or review of our financial statements and are not reported under the paragraph captioned “Audit
Fees” above. During our fiscal year ended December 31, 2021, Tuner, Stone & Company, L.L.P. billed us $30,000 for services
related to consent procedures for the use of its audit opinion in the Company’s filing of a Registration Statement on Form S-1
(including all amendments) that incorporated by reference the Company’s audited financial statements for the fiscal years ended
December 31, 2020 and 2019 and also billed us $16,200 related to a underwriter “comfort” letter relating to the same Registration
Statement. During our fiscal year ended 2020, there were no such fees billed by Tuner, Stone & Company, L.L.P.
“Tax
Fees” consisted of fees billed for professional services rendered by the principal accountant for tax returns preparation.
During our fiscal years ended December 31, 2021 and 2020, there were no such fees billed by Tuner, Stone & Company, L.L.P.
“All
Other Fees” consisted of fees billed for products and services provided by the principal accountant, other than the services
reported above under other captions of this Item 14. During our fiscal years ended December 31, 2021 and 2020, there were no such fees
billed by Tuner, Stone & Company, L.L.P.
Pre-Approval
Policies and Procedures
The
audit committee’s policy is that all audit and non-audit services provided by its independent registered public accounting firm
shall either be approved before the independent registered public accounting firm is engaged for the particular services or shall be
rendered pursuant to pre-approval procedures established by the Audit Committee. These services may include audit services and permissible
audit-related services, tax services and other services. Pre-approval spending limits for audit services are established on an annual
basis, detailed as to the particular service or category of services to be performed and implemented by our financial officers. Any audit
or non-audit service fees that may be incurred by us during a quarter that fall outside the limits pre-approved by the Audit Committee
for a particular service or category of services must be reviewed and approved by the Chairperson of the Audit Committee prior to the
performance of services. On an annual basis, the Audit Committee reviews and itemizes all fees paid to its independent registered public
accounting firm in the prior quarter (including fees approved by the Chairperson of the Audit Committee between regularly scheduled meetings
and fees approved by our financial officers pursuant to the pre-approval policies described above) and further reviews and itemizes all
fees expected to be paid in the upcoming quarter. The Audit Committee may revise its pre-approval spending limits and policies at any
time. None of the fees paid to the independent registered public accounting firm were approved by the Audit Committee after the services
were rendered pursuant to the “de minimis” exception established by the SEC for the provision of non-audit services.
PROPOSAL
2: APPROVAL OF AMENDMENT TO THE CHARTER TO REDUCE
THE
NUMBER OF AUTHORIZED SHARES OF COMMON STOCK
Our
Charter currently authorizes the Company to issue a total of 755,000,000 shares of capital stock, consisting of 550,000,000 shares of
common stock, par value $0.001 per share, and 5,000,000 shares of preferred stock, par value $0.001 per share.
On
July 6, 2022, subject to stockholder approval, the Board of Directors approved an amendment to our Charter to effect an Authorized Share
Reduction to reduce the total number of shares of common stock that the Company is authorized to issue from 750,000,000 to 25,000,000
(the “Authorized Share Reduction”). The Authorized Share Reduction will not change the number of authorized shares of preferred
stock.
The
primary purpose of the Authorized Share Reduction is to reduce the total number of shares that we are authorized to issue so that we
do not have what some stockholders might view as an unreasonably high number of authorized shares of common stock that are unissued or
reserved for issuance. In addition, the Authorized Share Reduction is anticipated to decrease the amount of annual franchise taxes that
the Company is required to pay to the State of Delaware.
If
the Authorized Share Reduction proposal is approved by our stockholders, the Company intends to implement the Authorized Share Reduction
as soon as is practical. The text of the proposed amendments to the Company’s Charter to effect the Authorized Share Reduction
is included as Annex A to this proxy statement (the “Authorized Share Reduction Charter Amendment”). If the Authorized
Share Reduction proposal is approved by the Company’s stockholders, the Company will have the authority to file the Authorized
Share Reduction Charter Amendment with the Secretary of State of the State of Delaware, which will become effective upon its filing;
provided, however, that the Authorized Share Reduction Charter Amendment is subject to revision to include such changes as may be required
by the office of the Secretary of State of the State of Delaware and as the Board of Directors deems necessary and advisable. The Board
of Directors has determined that these amendments are advisable and in the best interests of the Company and its stockholders and has
submitted the amendments for consideration by our stockholders at the 2022 Annual Meeting.
Reasons
for the Authorized Share Reduction
The
primary purpose of the Authorized Share Reduction is to reduce the total number of shares that we are authorized to issue so that we
do not have what some stockholders might view as an unreasonably high number of authorized shares of common stock that are unissued or
reserved for issuance following the Reverse Stock Split. Accordingly, the implementation of the Authorized Share Reduction is expressly
conditioned on the approval of the Reverse Stock Split Proposal and the implementation of the Reverse Stock Split. In addition, the Authorized
Share Reduction is anticipated to decrease the amount of annual franchise taxes that the Company is required to pay to the State of Delaware.
Effects
of the Authorized Share Reduction; Risks Associated with the Authorized Share Reduction
If
the Authorized Share Reduction is implemented, it will reduce the total number of shares of common stock that we are authorized to issue
from 750,000,000 to 25,000,000. The Authorized Share Reduction would not have any effect on the rights of existing stockholders and the
par value per share of common stock will remain $0.001. The Authorized Share Reduction would not have any impact on the total number
of shares of preferred stock that the Company is authorized to issue, which will remain at 1,532,500 shares.
The
decrease in the number of authorized shares of common stock would result in fewer shares of authorized but unissued common stock being
available for future issuance for various purposes, including raising capital or making acquisitions. However, we currently expect that
the amount of authorized but unissued shares of common stock available for future issuances following Authorized Share Reduction will
be sufficient for our future needs.
The
Authorized Share Reduction is conditioned on the approval of the Reverse Stock Split Proposal and the implementation of the Reverse Stock
Split, but will not be effected in proportion to the Reverse Stock Split ratio. Accordingly, depending on the ratio of the Reverse Stock
Split and the total number of shares we have issued and outstanding following the Reverse Stock Split, the practical effect of the Reverse
Stock Split and the Authorized Share Reduction could be to proportionally increase or decrease the total number of shares of common stock
we are authorized to issue compared to the amount authorized by our Charter as in effect today.
Effective
Time of the Authorized Share Reduction
If
the Authorized Share Reduction proposal is approved by our stockholders, the Authorized Share Reduction would become effective when the
Authorized Share Reduction Amendment is accepted and recorded by the office of the Secretary of State of the State of Delaware.
Vote
Required
The
affirmative vote of the holders of a majority of the shares of our voting securities entitled to vote on such proposal is required for
the approval of the Authorized Share Reduction proposal.
| The
Board recommends that a vote FOR approval of the Authorized Share Reduction. |
PROPOSAL
3: ADVISORY VOTE ON EXECUTIVE COMPENSATION
The
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act, enables our stockholders to approve, on an
advisory basis, the compensation of our named executive officers as disclosed in this Proxy Statement in accordance with the SEC’s
rules. The proposal, commonly known as a “say-on-pay” proposal, is required under Section 14A of the Securities Exchange
Act of 1934, as amended (which was put in place by the Dodd-Frank Act) and gives our stockholders the opportunity to express their views
on the Company’s executive compensation. Because this vote is an advisory vote, this proposal is not binding upon the Company,
our board of directors or the compensation committee; however, the compensation committee, which is responsible for designing and administering
the Company’s executive compensation program, values the opinions expressed by stockholders in their vote on this proposal. To
the extent there is any significant vote against the compensation of our named executive officers as disclosed in this Proxy Statement,
we will consider our stockholders’ concerns and the compensation committee will evaluate whether any actions are necessary to address
these concerns.
As
described in detail under the heading “Compensation Philosophy and Practices,” the goals of our compensation program are
to ensure that executive compensation rewards management for helping us achieve our corporate goals (increased sales, profitability,
etc.) and align management’s overall goals and objectives with those of our stockholders. To achieve these goals, our board of
directors and, going forward, our compensation committee, aims to:
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provide
a competitive compensation package that enables us to attract and retain qualified management personnel; |
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provide
incentives that reward the achievement of performance goals that directly correlate to the enhancement of stockholder value and facilitate
executive retention; |
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reward
our officers fairly for their role in our achievements; and |
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align
executives’ interests with those of stockholders through long-term incentives linked to specific performance. |
We
are asking our stockholders to indicate their support for our named executive officer compensation program as described in this Proxy
Statement in accordance with the compensation disclosure rules of the SEC. This vote is not intended to address any specific item of
compensation, but rather the overall compensation of our named executive officers and the philosophy, policies and practices described
in this Proxy Statement. Accordingly, we ask our stockholders to vote “FOR” the following resolution at the Annual Meeting:
“RESOLVED,
that the stockholders approve, on an advisory basis, the compensation of the Company’s named executive officers as disclosed in
the Compensation Philosophy and Practices, the accompanying compensation tables, and the related narrative disclosure in the Company’s
proxy statement for the 2022 annual meeting.”
As
further described in “Proposal 4: Advisory Vote on the Frequency of Future Advisory Votes on Executive Compensation,” the
board of directors is asking the Company’s stockholders to vote at the Annual Meeting on a proposal regarding the frequency of
the vote on future Say-on-Pay proposals as required by Section 14A. Subject to adoption by the board of directors of a different frequency
for an advisory vote on executive compensation in accordance with the recommendation of the Company’s stockholders pursuant to
“Proposal No. 4 - Advisory Vote on the Frequency of Future Advisory Votes on Executive Compensation” or otherwise, we currently
expect to hold future advisory votes on executive compensation every three years, and the next “say-on-pay” vote is expected
to occur at the annual meeting of our stockholders in 2022.
Vote
Required
The
affirmative vote of the holders of a majority of the shares of our voting securities represented in person or by proxy at the Annual
Meeting entitled to vote on such proposal that vote for or against such proposal is required to approve the advisory vote on executive
compensation. This is a non-binding advisory vote.
| The
Board recommends a vote FOR the advisory vote on executive compensation disclosed in the Compensation Philosophy and Practices, the
accompanying compensation tables, and the related narrative disclosure. |
PROPOSAL
4: ADVISORY VOTE ON THE FREQUENCY OF FUTURE ADVISORY VOTES ON EXECUTIVE COMPENSATION
The
Dodd-Frank Act also provides that stockholders must be given the opportunity to vote, on a non-binding, advisory basis, for their preference
as to how frequently we should seek future advisory votes on the compensation of our named executive officers as disclosed in accordance
with the compensation disclosure rules of the SEC, which we refer to as an advisory vote on executive compensation. By voting with respect
to this proposal, stockholders may indicate whether they would prefer that we conduct future advisory votes on executive compensation
once every one, two, or three years. Stockholders also may, if they wish, abstain from casting a vote on this proposal.
The
board of directors believes that a frequency of “every three years” for the advisory vote on executive compensation is the
optimal interval for conducting and responding to a “say on pay” vote. In determining to recommend that stockholders vote
for a frequency of once every three years, the board considered how an advisory vote at this frequency will provide our stockholders
with sufficient time to evaluate the effectiveness of our overall compensation philosophy, policies and practices in the context of our
long-term business results for the corresponding period, while avoiding over-emphasis on short-term variations in compensation and business
results. An advisory vote occurring once every three years will also permit our stockholders to observe and evaluate the impact of any
changes to our executive compensation policies and practices that have occurred since the last advisory vote on executive compensation,
including changes made in response to the outcome of a prior advisory vote on executive compensation. We will continue to engage with
our stockholders regarding our executive compensation program during the period between advisory votes on executive compensation. Stockholders
who have concerns about executive compensation during the interval between “say on pay” votes are welcome to bring their
specific concerns to the attention of the board of directors. Please refer to “Corporate Governance—Communications with the
Board of Directors” in this Proxy Statement for information about communicating with the board.
Although
this advisory vote on the frequency of the “say on pay” vote is non-binding, the board of directors and the compensation
committee will take into account the outcome of the vote when considering the frequency of future advisory votes on executive compensation.
Vote
Required
For
the advisory vote on how frequently our stockholders should vote on the compensation of our named executive officers, the number of years
(1, 2 or 3) that receives the highest number of votes will be deemed to be preferred by our stockholders. This is a non-binding advisory
vote.
| The
Board recommends a vote FOR the option of “every three years” for future advisory votes on executive compensation. |
PROPOSAL
5: RATIFICATION OF THE APPOINTMENT OF TURNER, STONE & COMPANY, L.L.P. AS OUR
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM FOR THE 2022FISCAL YEAR
The
Audit Committee of the Board has selected Turner, Stone & Company, L.L.P. as our independent registered public accounting firm for
the fiscal year ending December 31, 2022, and the Board has directed that management submit the selection of independent registered public
accountants for ratification by the stockholders at the Annual Meeting.
Stockholder
ratification of the selection of Turner, Stone & Company, L.L.P. as our independent registered public accounting firm is not required
by our Bylaws or otherwise. However, the Board is submitting the selection of Turner, Stone & Company, L.L.P. to the stockholders
for ratification as a matter of good corporate practice. If the stockholders fail to ratify the selection, the Audit Committee will reconsider
whether or not to retain Turner, Stone & Company, L.L.P. Even if the selection is ratified, the Audit Committee, at its discretion,
may direct the appointment of a different independent registered public accounting firm at any time during the year if it determines
that such a change would be in the best interests of the Company and its stockholders.
Required
Vote and Board Recommendation
The
affirmative vote of a majority of the shares present cast for or against the proposal is required to ratify the appointment of Turner,
Stone & Company, L.L.P. as our independent registered public accounting firm for the fiscal year ending December 31, 2022. If your
shares are held by a broker and you do not give the broker specific instructions on how to vote your shares, your broker may vote your
shares at its discretion. Abstentions will have no effect on the outcome of the vote on this proposal.
| The
Board recommends a vote FOR the ratification of Turner, Stone & Company, L.L.P. as our independent registered public accounting
firm for the 2022 fiscal year. |
OTHER
BUSINESS
The
Board knows of no other business to be brought before the Annual Meeting. If, however, any other business should properly come before
the Annual Meeting, the persons named in the accompanying proxy will vote the proxy in accordance with applicable law and as they may
deem appropriate in their discretion, unless directed by the proxy to do otherwise.
SUBMISSION
OF FUTURE STOCKHOLDER PROPOSALS
Pursuant
to our Amended and Restated Bylaws (“Restated Bylaws”), stockholders who wish to submit proposals to be considered or to
nominate persons for election to the Board of Directors at the 2023 Annual Meeting must be a stockholder of record, both when they give
us notice and at the 2023 Annual Meeting, must be entitled to vote at the 2023 Annual Meeting, and must comply with the notice provisions
in our Restated Bylaws. A stockholder’s notice must be delivered to our Secretary at c/o NexGel, Inc., 2150 Cabot Blvd West, Suite
B, Langhorne, Pennsylvania 19047 not less than 45 nor more than 75 days before the anniversary date of the immediately preceding Annual
Meeting. For our 2023 Annual Meeting, the notice must be delivered between June 16, 2023 and July 16, 2023. However, if our 2023 Annual
Meeting is not within 30 days prior to or 60 days after August 30, 2023, the notice must be delivered no later than the close of business
on the 10th day following the earlier of the day on which the first public announcement of the date of the 2023 Annual Meeting or 120
days prior to such meeting but not later than 90 days prior to such meeting. The public announcement of an adjournment or postponement
of the 2023 Annual Meeting will not trigger a new time period (or extend any time period) for the giving of a stockholder notice as described
in this proxy statement. The stockholder’s notice must be updated and supplemented as set forth in our Restated Bylaws.
A
copy of our 2021 Annual Report on Form 10-K, as amended, is available without charge (except for exhibits, which are available upon payment
of a reasonable fee) upon written request to NexGel, Inc., Attention: Secretary, 2150 Cabot Blvd West, Suite B, Langhorne, Pennsylvania
19047.
ANNEX
A
CERTIFICATE
OF AMENDMENT TO THE
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION
NEXGEL,
INC.
NEXGEL,
Inc. (the “Corporation”), a corporation duly organized and existing under the laws of the State of Delaware,
by its duly authorized officer, does hereby certify that:
1.
The Board of Directors of the Corporation has duly adopted resolutions (i) authorizing the Corporation to execute and file with the Secretary
of State of the State of Delaware an amendment of the Corporation’s Amended and Restated Certificate of Incorporation, as amended
(the “Restated Certificate”), to decrease the number of authorized shares as set forth below and (ii) declaring such
amendment to be advisable and in the best interest of the Corporation.
2.
That, at an annual meeting of the Corporation’s stockholders held on August 30, 2022, a majority of all outstanding shares of stock
entitled to vote on the matter voted in favor of the following amendment to the Restated Certificate.
2.
Upon this Certificate of Amendment becoming effective, paragraph A of Article IV of the Restated Certificate is deleted in its entirety
and replaced with the following:
“The
total number of shares of all classes of stock which the Corporation shall have authority to issue is 30,000,000, consisting of 25,000,000
shares of Common Stock, $0.001 par value per share (the “Common Stock”), and 5,000,000 shares of Preferred Stock,
$0.001 par value per share (the “Preferred Stock”).
3.
This Certificate of Amendment has been duly approved by the Board of Directors and stockholders of the Corporation in accordance with
Sections 141(f), 222 and 242 of the General Corporation Law of the State of Delaware.
4.
This Certificate of Amendment shall become effective upon the filing of this Certificate of Amendment with the Secretary of State of
the State of Delaware.
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be executed by its duly authorized officer this day of ,
2022.
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NEXGEL,
INC., |
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a
Delaware corporation |
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By:
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Name: |
Adam
Levy |
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Title: |
Chief
Executive Officer |
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