UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
SCHEDULE
14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed
by the Registrant
|
[X]
|
|
|
Filed
by a Party other than the Registrant
|
[ ]
|
Check
the appropriate box:
|
[ ]
|
Preliminary
Proxy Statement
|
|
|
|
|
[ ]
|
Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
|
|
|
|
|
[X]
|
Definitive
Proxy Statement
|
|
|
|
|
[ ]
|
Definitive
Additional Materials
|
|
|
|
|
[ ]
|
Soliciting
Material Pursuant to §240.14a-12
|
PROPHASE
LABS, INC.
(Name
of Registrant as Specified in Its Charter)
Payment
of Filing Fee (Check the appropriate box):
|
[X]
|
No
fee required.
|
|
|
|
|
[ ]
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
|
|
(1)
|
Title
of each class of securities to which transaction applies:
|
|
|
|
|
(2)
|
Aggregate
number of securities to which transaction applies:
|
|
|
|
|
(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):
|
|
|
|
|
(4)
|
Proposed
maximum aggregate value of transaction:
|
|
|
|
|
(5)
|
Total
fee paid:
|
[ ]
|
Fee
paid previously with preliminary materials:
|
|
|
[ ]
|
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.
|
|
(1)
|
Amount
Previously Paid:
|
|
|
|
|
(2)
|
Form,
Schedule or Registration Statement No.:
|
|
|
|
|
(3)
|
Filing
Party:
|
|
|
|
|
(4)
|
Date
Filed:
|
April
16, 2020
Dear
Stockholder:
The
ProPhase Labs, Inc.’s Annual Meeting of Stockholders (the “Annual Meeting”) will be held on Wednesday, May 20,
2020, at 4:00 p.m. Eastern Time, at the offices of Hirsch CPA, 273 Merrick Road, Lynbrook, NY 11563. The meeting will start promptly
at 4:00 p.m. Eastern Time.
Stockholders
are invited to attend the Annual Meeting. However, in light of the ongoing outbreak of Coronavirus (COVID-19), you are strongly
encouraged to stay home and instead vote your shares in advance of the Annual Meeting by completing, dating, signing and returning
the enclosed proxy or voting instruction form, or vote your shares online or by telephone, as instructed in the enclosed proxy
or voting instruction form. Whether or not you plan to attend the Annual Meeting in person, your vote is important. Please vote
your shares by proxy in advance of the Annual Meeting. Even if you have voted by proxy, you may still vote in person if you attend
the Annual Meeting. Please note, however, that if your shares are held of record by a bank, broker or similar institution and
you wish to vote at the Annual Meeting, you must obtain a proxy issued in your name from that record holder.
Details
of the business to be conducted at the Annual Meeting are included in the attached Notice of 2020 Annual Meeting of Stockholders
and Proxy Statement.
|
Very
truly yours,
|
|
|
|
/s/
Ted Karkus
|
|
Ted
Karkus
|
|
Chairman
of the Board of Directors
|
|
and
Chief Executive Officer
|
ProPhase
Labs, Inc.
621
N. Shady Retreat Road
Doylestown,
PA 18901
NOTICE
OF 2020 ANNUAL MEETING OF STOCKHOLDERS
to
be held May 20, 2020
TO
THE STOCKHOLDERS OF PROPHASE LABS, INC.:
NOTICE
IS HEREBY GIVEN that the 2020 Annual Meeting of Stockholders (the “Annual Meeting”) of ProPhase Labs, Inc. (the “Company”),
a Delaware corporation, will be held at the offices of Hirsch CPA, 273 Merrick Road, Lynbrook, NY 11563, on Wednesday, May 20,
2020, at 4:00 p.m., Eastern Time, for the following purposes:
|
(1)
|
To
elect as directors the four nominees named in the proxy statement to serve as our board of directors for the ensuing year
until the next Annual Meeting of Stockholders and until their respective successors have been duly elected and qualified (Proposal
1);
|
|
|
|
|
(2)
|
To
ratify the appointment of EisnerAmper LLP as our independent registered public accounting firm for the fiscal year ending
December 31, 2020 (Proposal 2); and
|
|
|
|
|
(3)
|
To
transact such other business as may properly come before the Annual Meeting and any adjournments or postponements thereof.
|
|
|
|
These
items of business are more fully described in the proxy statement accompanying this Notice.
YOUR
BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR EACH OF THE DIRECTOR NOMINEES AND IN FAVOR OF PROPOSAL 2.
The
record date for the Annual Meeting is April 9, 2020. Only stockholders of record at the close of business on that date
may vote at the Annual Meeting or any adjournment or postponement thereof.
|
By
Order of the Board of Directors
|
|
|
|
/s/
Ted Karkus
|
|
Ted
Karkus
|
|
Chairman
of the Board of Directors
|
|
and
Chief Executive Officer
|
Doylestown,
PA
April
16, 2020
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE STOCKHOLDERS’ MEETING TO BE HELD ON MAY 20, 2020
The
Notice of 2020 Annual Meeting of Stockholders, Proxy Statement and 2019 annual report to stockholders are available at:
http://www.astproxyportal.com/ast/07814
|
ProPhase
Labs, Inc.
621
N. Shady Retreat Road
Doylestown,
PA 18901
PROXY
STATEMENT
ANNUAL
MEETING OF STOCKHOLDERS
to be held May 20, 2020
TABLE
OF CONTENTS
ProPhase
Labs, Inc.
621
N. Shady Retreat Road
Doylestown,
PA 18901
PROXY
STATEMENT
QUESTIONS
AND ANSWERS ABOUT THESE PROXY MATERIALS AND THE 2020 ANNUAL MEETING OF STOCKHOLDERS
Q:
|
Why
am I receiving these materials?
|
|
|
A:
|
The
Board of Directors (the “Board”) of ProPhase Labs, Inc. (the “Company,” “we,” “our,”
or “us,” as the context requires) is providing this proxy statement (this “Proxy Statement”) to solicit
your proxy in connection with the Company’s 2020 Annual Meeting of Stockholders (the “Annual Meeting”),
which will be held at the offices of Hirsch CPA, 273 Merrick Road, Lynbrook, NY 11563, on Wednesday, May 20, 2020,
at 4:00 p.m., Eastern Time. The Board is requesting your vote on the proposals described in this Proxy Statement. This Proxy
Statement and the accompanying proxy card, or voting instruction form, as applicable, are being mailed to stockholders on
or about April 20, 2020.
|
|
|
Q:
|
Who
is soliciting the proxies?
|
|
|
A:
|
We
are soliciting proxies in the form enclosed on behalf of the Board. Our Board has selected
the persons named on the enclosed proxy card or voting instruction form (the “Named
Proxies”) to vote all shares for which the Company has been appointed to act as
proxy at the Annual Meeting. The Named Proxies will vote any properly executed proxy,
if received in time and not revoked, at the Annual Meeting in accordance with your directions.
The Named Proxies will vote any signed proxy that fails to specify a choice on any proposal
to be acted upon at the Annual Meeting in accordance with the Board’s voting recommendations
(as described below in “What are the Board’s voting recommendations?”),
and, in the Named Proxies’ discretion, FOR or AGAINST such other business as may
properly come before the Annual Meeting or any adjournment or postponement thereof.
|
|
|
Q:
|
What
information is contained in these materials?
|
|
|
A:
|
This
Proxy Statement contains information related to the proposals to be voted on at the Annual Meeting, the voting process, the
compensation of the Company’s executive officers and directors, and other required information. We have also enclosed
for your review the Company’s Annual Report on Form 10-K for the fiscal year ending December 31, 2019 (the “2019
Annual Report”), which contains financial and other information about our business during our last fiscal year.
|
|
|
Q:
|
What
proposals will be voted on at the Annual Meeting?
|
|
|
A:
|
There
are two matters on which a vote is scheduled at the Annual Meeting:
|
|
●
|
The
election of the four director nominees named in this Proxy Statement to the Board (Proposal 1); and
|
|
|
|
|
●
|
The
ratification of the appointment of EisnerAmper LLP as the Company’s independent registered public accounting firm for
the fiscal year ending December 31, 2020 (Proposal 2).
|
We
will also consider and vote upon any other business properly brought before the Annual Meeting, or any adjournment or postponement
thereof. However, our Secretary has not received timely and proper notice from any stockholder of any other matter to be presented
at the meeting.
Q:
|
What
are the Board’s voting recommendations?
|
|
|
A:
|
The
Board recommends that you vote your shares:
|
|
●
|
FOR
the election of each of the four director nominees named in this Proxy Statement to the Board (Proposal 1); and
|
|
|
|
|
●
|
FOR
the ratification of the appointment of EisnerAmper LLP as the Company’s independent registered public accounting firm
for the fiscal year ending December 31, 2020 (Proposal 2).
|
Q:
|
What
shares may I vote?
|
|
|
A:
|
You
may vote all shares of the Company’s Common Stock, par value $0.0005 per share (“Common Stock”), that you
owned as of the close of business on April 9, 2020 (the “Record Date”). These shares include:
|
|
1.
|
those
held directly in your name as the stockholder of record; and
|
|
|
|
|
2.
|
those
held for you as the beneficial owner through a bank, broker, or similar institution at the close of business on the Record
Date.
|
Each
share of Common Stock is entitled to one vote. On the Record Date, there were 11,591,648 shares of Common Stock issued and outstanding.
There was no other class of voting securities of the Company outstanding on the Record Date.
Q:
|
What
is the difference between holding shares as a stockholder of record and as a beneficial owner?
|
|
|
A:
|
Most
Company stockholders hold their shares through a bank, broker or similar institution rather than directly in their own name.
As summarized below, there are some distinctions between shares held of record and those owned beneficially.
|
Stockholder
of Record
If
your shares are registered directly in your name with the Company’s transfer agent, American Stock Transfer & Trust
Company LLC (the “Transfer Agent”), you are considered, with respect to those shares, the stockholder of record and
we are sending these proxy materials directly to you. As the stockholder of record, you have the right to vote your shares in
person at the Annual Meeting or to grant a proxy to vote your shares to the Company or any other person who will appear in person
at the Annual Meeting, and any adjournment or postponement thereof, and vote your shares on your behalf. However, in light of
the ongoing outbreak of Coronavirus (COVID-19), you are strongly encouraged to stay home and complete, date, sign and return the
enclosed form of proxy (in the prepaid envelope provided for this purpose), giving the Company the right to vote your shares for
you at the Annual Meeting, as you direct, or vote your shares online in advance of the Annual Meeting as instructed
in the enclosed proxy card.
Beneficial
Owner
If
you hold shares in a stock brokerage account or through a bank or similar institution, you are considered the beneficial owner
of shares held in street name, and your bank, broker or nominee is forwarding these proxy materials to you. Your bank, broker,
or nominee is considered, with respect to those shares, the stockholder of record. As the beneficial owner, you have the right
to direct your bank, broker, or other nominee on how to vote your shares, but because you are not the stockholder of record, you
may not vote these shares in person at the Annual Meeting unless you obtain a signed proxy from the record holder giving you the
right to vote the shares. However, in light of the ongoing outbreak of Coronavirus (COVID-19), you are strongly encouraged to
stay home and instead direct your bank, broker or other nominee to vote your shares on your behalf at the Annual Meeting, and
any adjournment or postponement thereof. Your bank, broker, or nominee has enclosed a voting instruction form for you to use.
Q:
|
May
I attend the Annual Meeting in person?
|
|
|
A:
|
If
you are a stockholder of record, you are invited to attend the Annual Meeting. However, in light of the ongoing outbreak
of Coronavirus (COVID-19), you are strongly encouraged to stay home and instead complete, date, sign and return the enclosed
form of proxy (in the prepaid envelope provided for this purpose), giving the Company the right to vote your shares for
you at the Annual Meeting, as you direct, or vote your shares online in advance of the Annual Meeting
as instructed in the enclosed proxy card.
If
you are a beneficial owner, you may not vote your shares in person at the Annual Meeting unless you obtain a signed proxy
from your bank, broker or other nominee giving you the right to vote the shares in person at the Annual Meeting. However,
in light of the ongoing outbreak of Coronavirus (COVID-19), you are strongly encouraged to stay home and instead direct
your bank, broker or other nominee to vote your shares on your behalf at the Annual Meeting, and any adjournment or postponement
thereof.
All
stockholders attending the Annual Meeting will be asked to present a form of photo identification, such as a driver’s
license, in order to be admitted to the meeting. By attending the Annual Meeting, stockholders agree to abide by the agenda
and procedures for the Annual Meeting, copies of which will be distributed to attendees at the meeting.
|
Q:
|
How
can I vote my shares in person at the Annual Meeting?
|
|
|
A:
|
If
you are a stockholder of record, you may vote shares you hold directly in your name at the Annual Meeting. If you choose to
attend the Annual Meeting, please bring the enclosed proxy card. Voting in person at the Annual Meeting will revoke any proxy
you submitted earlier.
|
If
you are the beneficial owner of shares held in street name and your bank, broker, or nominee is forwarding these proxy materials
to you, you may vote the shares in person at the Annual Meeting only if you have obtained a signed proxy from your bank, broker,
or nominee (i.e., the record holder) giving you the right to vote the shares.
Even
if you plan to attend the Annual Meeting, we recommend that you also submit your proxy as described below so that your vote will
be counted if you later decide not to attend the Annual Meeting. Submitting your proxy now will not prevent you from voting your
shares in person at the Annual Meeting if you desire to do so, as your proxy is revocable at your option.
Q:
|
How
can I vote my shares without attending the Annual Meeting?
|
|
|
A:
|
Whether
you hold shares directly as the stockholder of record or beneficially in street name, you may direct your vote without attending
the Annual Meeting. If you hold your shares directly, you may vote by granting a proxy. If you hold your shares in street
name, you may submit voting instructions to your bank, broker, or other nominee. Please refer to the summary instructions
below and those included on your proxy card or, for shares held in street name, the voting instruction form included by your
broker or nominee.
|
By
Mail—You may vote by mail by signing your proxy card or, for shares held in street name, the voting instruction
form provided by your bank, broker or nominee, and mailing it in the enclosed, postage prepaid and addressed envelope. If you
provide specific voting instructions, your shares will be voted as you instruct at the Annual Meeting. If you sign but do not
provide instructions, your shares will be voted as described below in “How are votes counted?”
On
the Internet— If you hold your shares directly in your name as the stockholder of record you may vote online at
www.voteproxy.com by following the online instructions (have your proxy card available when you access the website). If
you hold your shares in street name and the firm that holds your shares offers online voting, your broker voting instruction form
will contain instructions on how to vote online. If you vote online, you do not need to mail in your proxy card.
By
Telephone—If you hold your shares in street name and the firm that holds your shares offers voting by telephone,
your broker voting instruction form will contain instructions on how to vote by telephone. If you vote by telephone, you do not
need to mail in your proxy card. If you hold your shares directly in your name as the stockholder of record you may not vote by
telephone.
Q:
|
May
I change or revoke my vote?
|
|
|
A:
|
Yes,
you may change or revoke your proxy instructions at any time prior to the vote at the Annual Meeting.
|
If
you hold your shares directly and returned your proxy by mail, you must (a) provide written notice of revocation to the Secretary
of the Company, (b) timely deliver a valid, later-dated proxy, or (c) vote in person at the Annual Meeting. Your attendance at
the Annual Meeting will not by itself revoke your previously granted proxy unless you give written notice of revocation to the
Secretary of the Company before the Annual Meeting or you vote at the Annual Meeting. Any proxy submitted by a stockholder of
record may be revoked at any time prior to its exercise at the Annual Meeting.
For
shares you own beneficially, you may change your vote by submitting new voting instructions to your bank, broker or nominee. If
you voted on the Internet or by telephone, you may change your vote by following the instructions for voting by either method
until the cut-off time stated in the proxy instructions.
Q:
|
How
are votes counted?
|
|
|
A:
|
For
Proposal 1 (the election of directors), you may vote “FOR ALL NOMINEES,” “WITHHOLD AUTHORITY FOR ALL NOMINEES,”
or “FOR ALL EXCEPT” one or more of the nominees. Votes that are withheld will not be included in the vote tally
for the election of directors and will not affect the results of that vote.
|
For
Proposal 2 (the ratification of our independent registered public accounting firm for the fiscal year ending December 31, 2020),
you may vote “FOR”, “AGAINST” or “ABSTAIN.” For abstentions, see “What happens if
I abstain from voting?” below.
If
you specify a voting choice, the shares will be voted in accordance with that choice. If you vote your shares, but do not indicate
your voting preferences, the Named Proxies will vote your shares in accordance with the recommendations of the Board.
If
you are a beneficial owner and you have not provided voting instructions to your broker, your broker may exercise discretion to
vote your shares only with respect to the ratification of our independent registered public accounting firm (Proposal 2). Your
broker does not have discretionary authority to vote your shares in the election of directors (Proposal 1), resulting in a “broker-non-vote”
with respect to this proposal. See “What is a broker non-vote?” for more information.
Q:
|
What
is the quorum requirement for the Annual Meeting?
|
|
|
A:
|
The
quorum requirement for holding the Annual Meeting and transacting business is a majority of the outstanding shares of Common
Stock and entitled to vote (the “Shares”). The Shares may be present in person or represented by proxy at the
Annual Meeting. Abstentions and “broker non-votes” (described below) will be counted as present and entitled to
vote for purposes of determining a quorum at the Annual Meeting.
|
|
|
Q:
|
What
is the voting requirement to approve each of the proposals?
|
|
|
A:
|
In
the election of directors (Proposal 1), the four nominees for director who receive the highest number of votes cast “FOR”
their election will be elected as directors. This is called a plurality vote.
|
Approval
of the ratification of our independent registered public accounting firm (Proposal 2) will require the affirmative vote of a majority
of the votes cast on such proposal by the Shares present in person or represented by proxy at the Annual Meeting and entitled
to vote thereon.
In
each case, a quorum must be present at the Annual Meeting for a valid vote.
Q:
|
What
happens if I abstain from voting?
|
|
|
A:
|
If
an executed proxy card or voting instruction form is returned and the stockholder has explicitly abstained from voting on
any proposal, the Shares represented by the proxy will be considered present at the Annual Meeting for the purpose of determining
a quorum. Abstentions will not be counted as votes cast and therefore they will have no effect on the outcome of either proposal.
|
Q:
|
What
is a “broker non-vote”?
|
|
|
A:
|
A
“broker non-vote” occurs when a broker submits a proxy that does not indicate a vote for one or more of the proposals
because the broker has not received instructions from the beneficial owner on how to vote on such proposal and does not have
discretionary authority to vote in the absence of instructions. Brokers have discretionary authority to vote on matters that
are deemed “routine,” such as the ratification of our independent registered public accounting firm (Proposal
2). Brokers do not have discretionary authority to vote on matters that are deemed “non-routine,” such as the
election of directors (Proposal 1). Broker non-votes will be counted for the purposes of determining whether a quorum exists
at the Annual Meeting, but because they are not votes that are cast, they will have no effect on the outcome of Proposal 1.
|
|
|
Q:
|
Will
I have dissenters’ rights?
|
|
|
A:
|
No
dissenters’ rights are available under the General Corporation Law of the State of Delaware, our certificate of incorporation,
or our bylaws to any stockholder with respect to any of the proposals.
|
|
|
Q:
|
What
does it mean if I receive more than one proxy card or voting instruction form?
|
|
|
A:
|
It
means your Shares are registered differently or are held in more than one account. Please provide voting instructions for
all proxy cards and voting instruction forms you receive.
|
|
|
Q:
|
Where
can I find the voting results of the Annual Meeting?
|
|
|
A:
|
We
will announce preliminary voting results at the Annual Meeting and publish final results in a Current Report on Form 8-K following
the Annual Meeting.
|
PROPOSAL
1 - ELECTION OF BOARD OF DIRECTORS
The
directors of the Company are elected annually and hold office for the ensuing year until the next Annual Meeting of Stockholders
and until their successors have been duly elected and qualified. The directors are elected by a plurality of the votes cast by
stockholders. The Company’s bylaws state that the number of directors constituting the entire Board will be determined by
resolution of the Board. The number of directors currently fixed by the Board is four.
No
proxy may be voted for more people than the number of nominees listed below. Shares represented by all proxies received by the
Board and not marked to vote against or to withhold authority to vote for any individual director will be voted “FOR”
the election of each of the nominees named below (unless one or more nominees becomes unable or unwilling to serve). All of the
nominees have indicated their willingness to serve if elected, but if any should become unable or unwilling to stand for election,
proxies may be voted for a substitute nominee designated by the Board. No nominations for directors were received from stockholders
and no other candidates are eligible for election as directors at the Annual Meeting.
The
following table and the paragraphs following the table set forth information regarding the current ages, positions, and business
experience of the four nominees for election to the Board as of the date of this Proxy Statement:
Name
|
|
Position
|
|
Age
|
|
Initial
Year in Office
|
Ted
Karkus
|
|
Chairman
of the Board and Chief Executive Officer
|
|
60
|
|
2009
|
Jason
Barr
|
|
Director
|
|
40
|
|
2015
|
Louis
Gleckel, MD
|
|
Director
|
|
64
|
|
2009
|
Warren
Hirsch
|
|
Director
|
|
62
|
|
2019
|
TED
KARKUS has been the Chairman of the Board and the Chief Executive Officer of the Company since June 2009. Mr. Karkus was instrumental
in assisting the turnaround of ID Biomedical, an influenza vaccine manufacturer, which in 2005 was sold to GlaxoSmithKline plc
for over $1.4 billion. Mr. Karkus has twenty-five years of experience in securities and capital markets including two years with
Fahnestock & Co. Inc., a full-service brokerage firm, where he was Senior Vice President, Director of Institutional Equities,
and four years at S.G. Warburg, an investment bank, where he was an institutional equity salesman and developed a large network
of institutional investors. Mr. Karkus graduated with an MBA from Columbia University Graduate School of Business in 1984 where
he received Beta Gamma Sigma honors. He graduated Magna Cum Laude from Tufts University in 1981.
Mr.
Karkus brings extensive financial structuring as well as operational and marketing strategy experience to our Board, including
successful restructuring and turn-around scenarios in the pharmaceutical industry. Among his accomplishments, in 2010/2011 he
led the restructuring and streamlining of our operations, which resulted in improved sales and margins of our Cold-EEZE brand,
and in 2017 succeeded in selling the Cold-EEZE brand for $50 million to Mylan, a multibillion-dollar pharmaceutical company. These
skills, as well as Mr. Karkus’ experience as our Chairman and Chief Executive Officer, along with his deep knowledge of
and genuine interest in our Company, management skills and business savvy, and his performance as a Board member of the Company,
led the Board to conclude that he should be nominated to serve another term as a director.
JASON
M. BARR has been a member of our Board since June 2015 and currently serves as a member of the Governance and Nominating Committee
and the Audit Committee and as the chairman of the Compensation Committee. Mr. Barr is currently the Deputy General Counsel and
Secretary of TRU Kids Inc., a global brand licensing company commercializing Toys R Us affiliated intellectual property, having
served in these roles since January 2019. Prior to this and beginning in February 2018, Mr. Barr held various roles with Toys
R. Us, Inc., the global toys and baby products retailer, including Vice President, Corporate Counsel and Secretary and the Senior
Vice President, General Counsel and Secretary for Wayne Services Legacy Inc., the winddown agent of the Toys R Us, Inc. U.S. operations.
He previously was the Senior Vice President, Chief Legal Officer and Secretary of LiveStyle, Inc. (f/k/a SFX Entertainment, Inc.),
a global live events and media company, from March 2016 to October 2017, and since August 2013 served in various other legal and
commercial roles. Prior to his employment with LiveStyle, Mr. Barr was a corporate and securities attorney at Reed Smith LLP in
New York City from 2007 to 2013. He served from December 2015 to June 2018 as a member of the board of directors of Susquehanna
Polling & Research, Inc. (SP&R), a firm offering research and analysis services to businesses, trade associations, PR
and lobbying agencies, and political campaigns across the United States. Mr. Barr graduated from Suffolk University Law School
in 2007 and received his bachelor’s degree from Dickinson College in 2002.
Mr.
Barr brings to our Board knowledge and expertise with corporate finance, commercial law, brand development, risk management, litigation
and regulatory matters including reporting compliance with the Securities and Exchange Commission (the “SEC”), corporate
governance, and mergers and acquisitions. This legal background, business experience, independence, and his knowledge of the Company
from his experience as its counsel, and his performance as a Board member and chairman of the Compensation Committee, led the
Board to conclude that he should be nominated to serve as a director.
LOUIS
GLECKEL, MD, has been a member of our Board since June 2009 and currently serves as a member of our Compensation Committee
and chairman of our Governance and Nominating Committee. In 1997, Dr. Gleckel co-founded ProHealth Care Associates, a comprehensive
state of the art multi-specialty physician group practice with offices in Long Island and Bronx, New York. At ProHealth, he is
the Division Chief of Cardiology and Internal Medicine specializing in Preventative Cardiology, Metabolic Syndrome and Internal
Medicine with particular emphasis on high-risk patients with complications from diabetes and heart disease. He was named to New
York Magazine’s Best Doctors list for three years, New York Metro Area Best Doctors list for 14 years and the 2008 Nassau
County Best Doctors list. For over ten years Dr. Gleckel has been a team physician for the New York Jets and New York Islanders
as well as for the tennis players at the US Open. Dr. Gleckel also served as Chairman of the Board of Invicta Corporation, a development
stage company that designed, manufactured and marketed photochromic eyeglass lenses, for approximately four years until his resignation
in February 2005.
Dr.
Gleckel brings to the Board extensive knowledge of the medical, pharmaceutical and related industries as a distinguished doctor,
as well as experience in successful business development and board service. This experience, as well as his independence and his
performance as a Board member, member of our Compensation Committee, and chairman of our Governance and Nominating Committee,
led the Board to conclude that he should be nominated to serve another term as a director.
WARREN
HIRSCH has over 35 years of experience as a Certified Public Accountant. Mr. Hirsch owns and operates Warren Hirsch, CPA,
which offers a full range of accounting, tax and small business consulting services. From 2000 to May 2019, Mr. Hirsch served
as a registered representative of Royal Alliance, a national financial advisory firm. Mr. Hirsch graduated with a bachelor’s
degree in accounting from Hofstra University in 1980.
Mr.
Hirsch has extensive knowledge and background related to accounting and financial reporting rules and regulations as well as the
evaluation of financial results, internal controls and business processes. Based on these qualifications, our Board has determined
that Mr. Hirsch should be nominated to serve another term as a director.
Required
Vote
Directors
are elected by a plurality of the votes cast, in person or by proxy, at the Annual Meeting.
Recommendation
of the Board of Directors
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE ELECTION OF EACH OF THE FOUR DIRECTOR NOMINEES NAMED IN THIS PROXY
STATEMENT. PROXIES SOLICITED BY THE BOARD WILL BE VOTED “FOR” EACH NOMINEE UNLESS STOCKHOLDERS SPECIFY A CONTRARY
VOTE.
Corporate
Governance
Director
Independence
As
required by Nasdaq listing standards, a majority of the members of our Board must qualify as “independent,” as affirmatively
determined by our Board. Our Board consults with our legal counsel to ensure that its determinations are consistent with all relevant
securities and other laws and regulations regarding the definition of “independent,” including those set forth in
the applicable Nasdaq listing standards.
Based
on these standards, upon the recommendation of our Governance and Nominating Committee, the Board has affirmatively determined
that each of our current non-employee directors is “independent,” as defined by the applicable listing standards of
Nasdaq. Thus, three of our four current directors are independent under the listing standards of Nasdaq. Mr. Karkus is not considered
independent because he is an employee of the Company.
Board
of Directors Leadership Structure
Our
governance structure combines the roles of principal executive officer and Board Chairman. Mr. Karkus has served as both Chairman
and Chief Executive Officer of the Company since June 2009. The Board believes there are important advantages to Mr. Karkus serving
in both roles at this time, and may revisit this structure at its discretion in the future. Mr. Karkus is the director most familiar
with our Company’s business and industry and is best situated to propose the Board’s agendas and lead Board discussions
on important matters. Mr. Karkus provides a strong link between management and the Board, which promotes clear communication and
enhances strategic planning and implementation of corporate strategies. Another advantage is the clarity of leadership provided
by one person representing the Company to employees, stockholders and other stakeholders. The Board has not named a lead independent
director.
Risk
Oversight
Our
Board is actively involved in oversight of risks that could affect us. This oversight is conducted primarily by our full Board,
which has responsibility for general oversight of risks, and through delegation to the Audit Committee. Our Board satisfies this
responsibility through full reports by each committee chair regarding the committee’s considerations and actions, as well
as through regular reports directly from officers responsible for oversight of particular risks within our Company. The Board
believes that full and open communication between management and the Board is essential for effective risk management and oversight.
In
addition, our Board monitors our exposure to a variety of risks through our Audit Committee. Our Audit Committee Charter gives
the Audit Committee responsibilities and duties that include discussing with management, the internal audit department and the
independent registered public accounting firm, our major financial risk exposures and the steps management has taken to monitor
and control such exposures, including our risk assessment and risk management policies. Pursuant to the Audit Committee Charter,
such discussions should also include our exposure to counterparties or other institutions which we believe are at risk of significant
financial distress.
Committees
of the Board of Directors
The
Board has established three committees: the Audit Committee, the Compensation Committee, and the Governance and Nominating Committee
(the “Nominating Committee”).
Audit
Committee
The
current members of the Audit Committee are Jason Barr, Louis Gleckel and Warren Hirsch. Mr. Hirsch serves as Chairman of the Audit
Committee. The Audit Committee has been established in accordance with Section 3(a)(58)(A) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). The Board has determined that each of Messrs. Barr and Hirsch and Dr. Gleckel meets
the independence requirements of the Nasdaq listing standards for audit committee members. Additionally, our Board has affirmatively
determined that each of Messrs. Barr and Hirsch and Dr. Gleckel is “independent” as defined by the applicable SEC
rules regarding audit committee independence. Our Board has determined that Mr. Hirsch qualifies as an “audit committee
financial expert” as defined by the rules of the SEC.
The
Audit Committee reviews, analyzes and makes recommendations to the Board with respect to the Company’s accounting policies,
internal controls and financial statements, consults with the Company’s independent registered public accountants, and reviews
filings containing financial information of the Company to be made with the SEC.
The
Audit Committee met five times during 2019. The Audit Committee operates under a written charter adopted by the Board which is
available on our website at www.ProPhaseLabs.com under “Investor Relations — Corporate Governance and Policies
— Audit Committee Charter.”
Compensation
Committee
The
current members of the Compensation Committee are Jason Barr, Louis Gleckel and Warren Hirsch. Mr. Barr serves as chairman of
the Compensation Committee. The Board has determined each of Messrs. Barr and Hirsch and Dr. Gleckel meets the independence requirements
of the Nasdaq listing standards for compensation committee members.
The
Compensation Committee reviews and approves the salary and all other compensation of officers of the Company, including non-cash
benefits, incentive-based awards and equity-based awards. The Compensation Committee also administers the Company’s Amended
and Restated 2010 Equity Compensation Plan and the 2010 Directors’ Equity Compensation Plan. The Compensation Committee
may form subcommittees and delegate authority to such subcommittees or to one or more of its members when appropriate. The Compensation
Committee has the authority to engage consultants.
The
Compensation Committee met two times during 2019. The Compensation Committee operates under a written charter adopted by the Board
which is available on our website at www.ProPhaseLabs.com under “Investor Relations — Corporate Governance
and Policies — Compensation Committee Charter.”
Nominating
Committee
The
members of the Nominating Committee are Jason Barr, Louis Gleckel and Warren Hirsch. Dr. Gleckel serves as chairman of the Nominating
Committee. The Board has determined each of Messrs. Barr and Hirsch and Dr. Gleckel meets the independence requirements of the
Nasdaq listing standards for nominating committee members.
The
Nominating Committee is responsible for developing and recommending criteria for selecting new directors and oversees evaluations
of the Board and committees of the Board. The Nominating Committee has the responsibility to oversee the Company’s Corporate
Governance Guidelines and propose changes to such guidelines from time to time as may be appropriate.
The
Nominating Committee met two times during 2019. The Nominating Committee operates under a written charter adopted by the Board
which is available on our website at www.ProPhaseLabs.com under “Investor Relations — Corporate Governance
and Policies — Governance and Nominating Committee Charter.”
Meetings
of the Board of Directors in 2019
For
the fiscal year ended December 31, 2019, there were four meetings of the Board. Each of the directors attended, in person or by
telephone, more than 75% of the meetings of the Board and the committees on which he served.
The
independent members of the Board met in executive session once during 2019.
Each
director is expected to make reasonable efforts to attend Board meetings, meetings of committees of which such director is a member
and the Annual Meeting of Stockholders. All of our directors attended the 2019 Annual Meeting of Stockholders in person.
Director
Nominations
In
selecting candidates for appointment or re-election to the Board, the Nominating Committee considers the following criteria:
|
●
|
Personal
and professional ethics and integrity, including a reputation for integrity and honesty in the business community.
|
|
|
|
|
●
|
Experience
as an executive officer of companies or as a senior leader of complex organizations, including scientific, government, educational,
or large not-for-profit organizations. The Nominating Committee may also seek directors who are widely recognized as leaders
in the fields of medicine or the biological sciences and manufacturing or business generally, including those who have received
awards and honors in their field.
|
|
|
|
|
●
|
Financial
knowledge, including an understanding of finance, accounting, the financial reporting process, and company measures for operating
and strategic performance.
|
|
|
|
|
●
|
Possess
the fundamental qualities of intelligence, perceptiveness, fairness, and responsibility.
|
|
|
|
|
●
|
Ability
to critically and independently evaluate business issues, contributing a diverse perspectives or viewpoints, and making practical
and mature judgments.
|
|
|
|
|
●
|
A
genuine interest in the Company, and the ability to spend the time required to make substantial contributions as a director.
|
|
|
|
|
●
|
No
conflict of interest or legal impediment that would interfere with the duty of loyalty to the Company and its stockholders.
|
|
|
|
|
●
|
Current
ownership of Common Stock of the Company, or a willingness to acquire shares of Common Stock, to further align the interests
of non-employee directors with the interests of the Company’s stockholders.
|
Directors
should have varied educational and professional experiences and backgrounds that, collectively, provide meaningful guidance and
counsel to management. Diversity of background, including gender, race, ethnic or national origin, age, and experience in business,
government, education, international experience and other areas relevant to the Company’s business are factors considered
in the selection process. As a company, we are committed to creating and sustaining a culture of inclusion and fairness. In addition,
the Nominating Committee reviews the qualifications of the directors to be appointed to serve as members of the Audit Committee
to ensure that they meet the financial literacy and sophistication requirements under applicable Nasdaq rules and that at least
one of them qualifies as an “audit committee financial expert” under the applicable SEC rules.
The Nominating Committee will consider written proposals from stockholders
for nominees for director. Any such nominations must be submitted to the Nominating Committee in accordance with Article 2.15 of
the Company’s Bylaws to the Secretary at the Company’s principal executive office. For a stockholder to make any nomination
of a person or persons for election to the Board at an annual meeting, the stockholder must provide timely notice and certain information
about the stockholder and the nominee. To be timely, a stockholder’s notice must be delivered to, or mailed and received
at, the principal executive office of the Company not less than 90 days nor more than 120 days prior to the one-year anniversary
of the preceding year’s annual meeting; provided, however, that if the date of the annual meeting is more than 30 days before
or more than 60 days after such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received,
not later than the 90th day prior to such annual meeting, or, if such meeting is announced later than the 90th day prior to the
date of such meeting, not later than the 10th day following the day on which public disclosure (as defined in Article 2.15 of the
Bylaws) of the date of such annual meeting was first made.
Information
must be provided for (i) the stockholder providing the notice of the nomination proposed to be made at the meeting, (ii) the beneficial
owner or beneficial owners, if different, on whose behalf the notice of the nomination proposed to be made at the meeting is made,
(iii) any affiliate or associate of such stockholder or beneficial owner, and (iv) any other person with whom such stockholder
or such beneficial owner (or any of their respective affiliates or associates) is acting in concert. Each such person must provide
(A) the name and address of such person (including, if applicable, the name and address that appear on the Company’s books
and records); and (B) the class or series and number of shares of the Company that are, directly or indirectly, owned of record
or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act), by such person, except that such person shall
in all events be deemed to beneficially own any shares of any class or series of the Company as to which such person has a right
to acquire beneficial ownership at any time in the future. In addition, each person must provide information relating to their
derivative and short positions in the Company’s securities, as set out in the Company’s Bylaws.
In
addition, each director nominee must provide the same information, as well as all information relating to such proposed nominee
that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of
proxies for election of directors in a contested election pursuant to Section 14(a) under the Exchange Act (including such proposed
nominee’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), a
description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during
the past three years, and any other material relationships, between or among any nominating stockholder, on the one hand, and
each proposed nominee, his or her respective affiliates and associates and any other persons with whom such proposed nominee (or
any of his or her respective affiliates and associates) is acting in concert, on the other hand, including, without limitation,
all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such nominating stockholder
were the “registrant” for purposes of such rule and the proposed nominee were a director or executive officer of such
registrant, and a completed and signed questionnaire, provided by the Company’s Secretary relating to any voting commitments.
The Company may require any proposed nominee to furnish such other information (A) as may reasonably be required by the Company
to determine the eligibility of such proposed nominee to serve as an independent director of the Company or (B) that could be
material to a reasonable stockholder’s understanding of the independence or lack of independence of such proposed nominee.
Governance
Policies and Procedures
Code
of Conduct
We
have adopted a code of conduct that applies to all members of our Board and all employees of the Company, including our principal
executive officer, principal financial officer and other senior financial officers. The Code of Conduct is available on our website
at www.ProPhaseLabs.com under “Investor Relations — Corporate Governance and Policies — Code of Conduct.”
We have not granted any waivers under this policy to any of our directors or executive officers. Any waiver will be disclosed
in accordance with Nasdaq requirements.
Corporate
Governance Guidelines
The
Board has adopted Corporate Governance Guidelines to promote effective governance of the Company. The Corporate Governance Guidelines
are available on our website at www.ProPhaseLabs.com under “Investor Relations — Corporate Governance and Policies
— Governance Overview.”
Whistleblower
Policy
The
Company has established a whistleblower policy by which confidential complaints may be raised anonymously within the Company.
Employees that wish to submit complaints confidentially should submit an anonymous written complaint directly to the Compliance
Officer (as described in the policy). Complaints submitted through this confidential process that involve the Company’s
accounting, auditing, and internal auditing controls and disclosure practices will be presented to the Audit Committee. The policy
is available on our website at www.ProPhaseLabs.com under “Investor Relations — Corporate Governance and Policies
— Whistleblower Policy”.
Insider
Trading Policy
The
Company maintains an insider trading policy that provides that the Company’s personnel may not buy, sell or engage in other
transactions in the Company’s stock while aware of material non-public information and that restricts trading in Company
securities for a limited group of Company employees (including executive officers and directors) to defined window periods that
follow our quarterly earnings releases. The policy is available on our website at www.ProPhaseLabs.com under “Investor
Relations — Corporate Governance and Policies — Securities Trades.”
Procedures
for Contacting Directors
The
Company has adopted a procedure by which stockholders may send communications to one or more members of the Board by writing to
such director(s) or to the whole Board, care of the Corporate Secretary, ProPhase Labs, Inc., 621 N. Shady Retreat Road, Doylestown,
PA 18901. The mailing envelope should contain a clear notation indicating that the enclosed letter is a “Board Communication”
or “Director Communication.” All such letters must clearly state whether the intended recipients are all members of
the Board or just certain specified individual directors. The Secretary will make copies of all such letters and circulate them
to the appropriate director or directors.
Certain
Relationships and Related Transactions
In
accordance with the terms of the charter of our Audit Committee, the Audit Committee must review and approve the terms and conditions
of all related party transactions. “Related party transactions,” as described in Item 404(a) of Regulation S-K promulgated
by the SEC generally refer to any transaction, arrangement or other relationship, or any series of similar transactions, arrangements
or relationships in which we were or are to be a participant, where the amount involved exceeds the lesser of (i) $120,000 and
(ii) one percent (1%) of the average of our total assets at year-end for the prior two fiscal years (which was $165,000), and
in which any director, executive officer or holder of more than five percent (5%) of our voting securities (or affiliates or immediate
family members of such persons) had or will have a material interest.
There
have been no related party transactions since January 1, 2018.
EXECUTIVE
OFFICERS
The
following table and the paragraphs following the table set forth information regarding the current ages, positions, and business
experience of the current executive officers of the Company:
Name
|
|
Position
|
|
Age
|
Ted
Karkus
|
|
Chairman
of the Board and Chief Executive Officer
|
|
60
|
Monica
Brady
|
|
Chief
Financial Officer
|
|
42
|
See
“Proposal 1 – Election of Board of Directors” for Mr. Karkus’s biography.
MONICA
BRADY has served as our Chief Financial Officer since January 16, 2019. Prior to serving as our Chief Financial Officer, Ms.
Brady served as our Chief Accounting Officer beginning September 2017 and our Director of Finance from 2009 to September 2017.
EXECUTIVE
AND DIRECTOR COMPENSATION
The
following summary compensation table sets forth the total compensation paid or accrued for the years ended December 31, 2019 and
2018 to our Chief Executive Officer and our Chief Financial Officer. We refer to these officers as our “named executive
officers.”
Summary
Compensation Table (2019 and 2018)
Name and Principal Position
|
|
Year
|
|
Salary($)
|
|
|
Bonus(1) ($)
|
|
|
Option Awards(2) ($)
|
|
|
All Other Compensation (3)($)
|
|
|
Total($)
|
|
Ted Karkus
|
|
2019
|
|
|
125,000
|
|
|
|
100,000
|
|
|
|
—
|
|
|
|
24,000
|
|
|
|
249,000
|
|
Chairman of the Board and
|
|
2018
|
|
|
209,672
|
|
|
|
100,000
|
|
|
|
1,554,251
|
|
|
|
26,000
|
|
|
|
1,889,923
|
|
Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Monica Brady
|
|
2019
|
|
|
142,000
|
|
|
|
35,000
|
|
|
|
76,144
|
|
|
|
10,557
|
|
|
|
263,701
|
|
Chief Financial Officer
|
|
2018
|
|
|
132,000
|
|
|
|
30,000
|
|
|
|
65,654
|
|
|
|
11,480
|
|
|
|
239,134
|
|
|
(1)
|
For
Mr. Karkus, the amount reported for 2019 consists of a $100,000 discretionary bonus paid to Mr. Karkus in December 2019 for
his 2019 contributions to the Company. For Ms. Brady, the amount reported for 2019 consists of a $35,000 discretionary bonus
paid to Ms. Brady in December 2019 for her 2019 contributions to the Company.
|
|
|
|
|
(2)
|
Represents the aggregate grant date fair value of the option award
granted to Ms. Brady in 2019, determined in accordance with FASB ASC Topic 718. For a discussion of the assumptions and methodologies
used to value the option award granted, see Note 5 “Transactions Affecting Stockholders’ Equity” to the financial
statements included in our 2019 Annual Report.
|
|
|
|
|
(3)
|
For
Mr. Karkus, the amount reported for 2019 consists of a $15,000 vehicle allowance and a $9,000 matching contribution to the
Company’s 401(k) defined contribution plan. For Ms. Brady, the amount reported for 2019 consists of a $5,000 vehicle
allowance and a $5,557 matching contribution in the Company’s 401(k) defined contribution plan.
|
Compensation
Philosophy
Our
Compensation Committee believes that the most effective compensation program should:
|
●
|
attract
and retain talented executives who will lead us through the challenges that we may face and put us in a position to grow and
succeed;
|
|
|
|
|
●
|
motivate
our executives to achieve short-term, medium-term and long-term financial and strategic goals;
|
|
|
|
|
●
|
reward
our executives for the achievement of individual and corporate objectives; and
|
|
|
|
|
●
|
align
the interests of management with those of our stockholders by providing incentives for superior performance that improves
shareholder value.
|
There
is no pre-established policy or target for the allocation between either cash and non-cash or short-term, medium-term and long-term
incentive compensation. This approach provides our Compensation Committee the ability to evaluate the compensation package from
year to year with the flexibility to configure allocations and amounts in a manner that aligns closely with stockholder interests.
The Compensation Committee considers our corporate performance, individual performance, and the economic environment in general
and in our industry when it makes compensation decisions. The Compensation Committee uses these factors, in conjunction with its
overall compensation philosophy, when it determines compensation to be awarded to our executive officers during a fiscal year.
While
we do not have any policy for the proportion of compensation that should be allocated as cash or non-cash, or short or long-term,
we have historically paid our executive officers a greater percentage of their total compensation as base salary. This is due
to market factors in our industry and the specific situations facing our Company. It is important for us to retain the services
of our talented and experienced executive team through market fluctuations. To do so, we believe that it is important to provide
a certain amount of fixed compensation that will give our executive officers some assurance as to the level of compensation they
will earn.
We
have utilized annual bonus awards to reward results or extraordinary efforts, which motivates our executive officers to produce
positive short-term results. We grant stock options and other stock-based awards which align the long-term interests of our executive
officers to the interests of our stockholders by making our executive officers stakeholders in the Company and tying their long-term
interests to our success.
Our
Compensation Committee does not specifically benchmark the compensation of our executives to the pay of other executives in companies
of similar size in our industry, given the unique challenges that are faced by other companies of our size in our industry. However,
we have historically compared the level of our executives’ compensation against the compensation of other companies in our
industry in general, and believe that the level of compensation our executives receive is within the range of compensation paid
to other executives in our industry. We use these compensation checks to ensure that our executives are being appropriately rewarded
and to discourage their departure to any competitor.
Regarding
most compensation matters, the Chief Executive Officer’s responsibility is to provide recommendations to the Compensation
Committee based on an analysis of market standards and trends and an evaluation of the contribution of each executive officer
to the Company’s performance. Our Compensation Committee considers, but retains the right to accept, reject or modify such
recommendations. Neither the Chief Executive Officer nor any other member of management is present during executive sessions of
the Compensation Committee. Moreover, the Chief Executive Officer is not present when decisions with respect to his compensation
are made.
Consideration
of 2019 Advisory Stockholder Vote on Executive Compensation
On
May 22, 2019, at our annual meeting of stockholders, our stockholders overwhelmingly approved, on a non-binding advisory basis,
the compensation of the Company’s named executive officers, including the Company’s compensation practices and principles
and their implementation, as discussed and disclosed in the compensation tables and related narrative disclosure contained in
our 2019 Proxy Statement (the “2019 Say on Pay Vote”). The Compensation Committee appreciates and values the views
of our stockholders. In light of the strong level of support of the overall pay practices, and of the general effectiveness of
our long standing compensation policies, the Board and the Compensation Committee have not made any specific changes to our executive
compensation program.
At
the annual meeting on May 22, 2019, our stockholders expressed a preference that our Say on Pay Vote continue to occur every three
years. In accordance with the results of this vote, the Board determined to continue its practice of holding a Say-on-Pay Vote
every three years. Therefore, the next Say on Pay Vote will be held at our 2022 annual meeting of stockholders. The next required
vote on the frequency of Say on Pay Votes, which is required to be held at least every six years, will be held at our 2025 annual
meeting of stockholders.
Elements
of Compensation
Subject
to variation where appropriate, the elements of compensation to our named executive officers include:
|
●
|
base
salary, which is determined on an annual basis and is generally set forth in employment agreements with our executives;
|
|
|
|
|
●
|
annual
cash incentive compensation, which is awarded by our Compensation Committee on a discretionary basis, determined based on
the Company and individual performance in the applicable fiscal year; and
|
|
|
|
|
●
|
long-term
incentive compensation in the form of options and other stock-based awards.
|
Base
Salary and Annual Bonus
Base
salaries are an integral component of our total compensation program, and setting base salaries at competitive levels helps us
to attract and retain senior executives. Base salary is the only fixed component of compensation for our executives. The base
salaries for our named executive officers were determined based on the Compensation Committee’s evaluation of the competitive
marketplace, the salaries of our other executives, and the scope of each named executive officer’s responsibilities. The
base salaries of our named executive officers were set at the level deemed necessary to secure their employment for an extended
period and to appropriately reward them for the multiple roles they played for our Company.
Our
annual bonus opportunity is intended to incentivize the achievement of our short-term goals. On an annual basis, generally in
mid-December, our Compensation Committee assesses the individual performance of each of our executive officers and the performance
of the Company and determines the appropriate annual bonus award, if any, for our executive officers. We do not use pre-established
targets for the annual bonus award because market factors that affect our Company’s performance are unpredictable, and thus
it would be difficult to set goals at the beginning of the fiscal year that would appropriately motivate our executive officers
throughout the year. By basing the annual incentive on assessments made at the end of the year of the performance of the individual
executives and the Company, and occasionally making mid-year determinations where the circumstances warrant an immediate reward,
we can take all market factors into account and reward our executive officers appropriately for their performance.
Equity-Based
Awards
Our
Compensation Committee believes that equity-based participation provides our executive officers a strong economic interest in
maximizing stock price appreciation over the long term and aligns their interests with the interests of our stockholders. Equity-based
awards are made pursuant to the Company’s equity incentive plans. The ProPhase Labs, Inc. Amended and Restated 2010 Equity
Compensation Plan (the “2010 Plan”) currently authorizes us to issue up to 3,900,000 shares of Common Stock (subject
to adjustments described in the 2010 Plan) to eligible employees, directors, consultants, advisors and other service providers
of the Company or any of our affiliates.
The
2010 Plan has served as a key retention tool. Retention serves as a very important factor in our determination of the type of
award to grant and the number of underlying shares that are granted in connection with that award. In addition, our Compensation
Committee considers cost to the Company in determining the form of award, as well as our desire to have equity awards drive and
reward performance over an extended period of time in order to promote long-term value for our stockholders, and to be an integral
part of a competitive compensation program. Our Compensation Committee believes that stock options, restricted shares and stock
grants are the best forms of award to achieve these goals, as stock options are designed to deliver value to executives only if
our stock price increases over the value at the time of grant, and restricted shares and stock grants provide compensation that
fluctuates with our stock price.
In
determining the size of an option, restricted stock or stock grant to a named executive officer, both upon initial hire and on
an ongoing basis, our Compensation Committee considers competitive market factors, the size of the equity incentive plan pool,
cost to the Company, the level of equity held by the executive and by other officers, and individual contribution to corporate
performance.
Although
there is no set target level for holding options or stock ownership, our Compensation Committee recognizes that the equity-based
component ensures additional focus by our executive officers on stock price performance, enhances executive retention, and aligns
the interests of our executive officers with the interests of our stockholders. Accordingly, the exercise price of stock options
is tied to the fair market value of our Common Stock on the date of grant. A grant of stock options typically will vest over a
two to three year period, although the Compensation Committee may at times determine that a fully vested award is appropriate.
There
is no set formula for the granting of awards to individual executives or employees. The number of options awarded may vary up
or down from prior year awards, based on the Compensation Committee’s review and consideration of the above-listed goals
and factors.
In
keeping with our executive compensation program and philosophy for incentivizing the performance of our executive officers, as
noted above, our Compensation Committee has used grants of stock, including restricted stock. Such grants are intended to reinforce
the alignment of interests of our named executive officers with those of our stockholders, as the value of the awards granted
thereunder is linked to the value of our Common Stock, which, in turn, is indirectly attributable to the individual performance
of our executive officers.
Defined
Contribution Plan
In
1999, we implemented a 401(k) defined contribution plan for our employees. The 401(k) plan is the Company’s primary retirement
benefit for its employees, including its executives. For executive officers, as well as all other employees, the Company makes
a contribution to the plan annually based on the amount of the employee’s 401(k) plan contributions and compensation. The
contribution to the plan by the Company consists of a 50% match of the employee’s contribution, up to $11,400 per person,
per annum. The Company’s total contribution to the 401(k) plan in 2019 for its named executive officers, in the aggregate,
was approximately $14,557. Company contributions to the Company’s 401(k) plan are included in the Summary Compensation Table
as “Other Compensation.”
The
Company does not provide its executive officers with any type of defined benefit retirement benefit or the opportunity to defer
compensation pursuant to a non-qualified deferred compensation plan.
Perquisites
and Other Personal Benefits
The
Company provides executives with limited personal benefits. The Compensation Committee reviews annually the levels of personal
benefits provided to the executives. Medical and dental insurance is provided to each executive, along with all other eligible
employees, subject to the same terms and conditions, including premium payments that apply to all other eligible employees. Life
and disability insurance is provided to each executive at no cost to the executive. All such welfare benefits terminate at the
time each executive is no longer employed with the Company or as otherwise provided in the applicable employment agreement (except
as otherwise required by continuation coverage laws).
Employment
Agreements
Amended
and Restated CEO Employment Agreement
On
February 16, 2018, the Board approved the Amended and Restated 2015 Executive Employment Agreement with Mr. Karkus (the “CEO
Employment Agreement”), which became effective February 23, 2018 (the “Effective Date”), subject to stockholder
approval, which was subsequently attained at the Company’s special meeting of stockholders held on April 12, 2018.
Under
the CEO Employment Agreement, Mr. Karkus agreed to reduce his base salary from a rate of not less than $675,000 per annum to a
base salary of not less than $125,000 per annum for the period from the Effective Date through February 22, 2021, after which
time Mr. Karkus’ base salary will return to $675,000 per annum. As consideration for his agreement to accept a reduced base
salary, Mr. Karkus was granted a stock option (the “2018 CEO Option”) under the Company’s 2018 Stock Incentive
Plan on February 23, 2018 to purchase 2,300,000 shares of Common Stock of the Company at an initial exercise price of $3.00
per share, which is exercisable in 35 equal monthly installments of 63,888 shares on the 1st day of each month beginning
on March 1, 2018 (the “Initial Vesting Date”), and one monthly installment of 63,920 shares on the 1st day of the
36th month following the Initial Vesting Date, subject to Mr. Karkus’ continued employment with the Company. The 2018 CEO
Option is subject to accelerated vesting in the event Mr. Karkus’ employment is terminated for any reason other than by
the Company for Cause or by Mr. Karkus without Good Reason (as such terms are defined in the CEO Employment Agreement).
The 2018 Stock Incentive
Plan requires certain proportionate adjustments to be made to the stock options granted under the plan upon the occurrence of
certain events, including special distributions (whether in the form of cash, shares, other securities, or other property) in
order to maintain parity. Accordingly, the Compensation Committee of the board of directors adjusted the exercise price of the
2018 CEO Option on May 7, 2018, such that the exercise price of the CEO Option was reduced from $3.00 per share to $2.00 per share,
effective as of June 5, 2018, the date a special $1.00 cash dividend was paid to the Company’s stockholders, from $2.00
to $1.75 per share, effective as of January 24, 2019, the date a special $0.25 cash dividend was paid to the Company’s stockholders,
and from $1.75 to $1.50 per share, effective as of December 12, 2019, the date another special $0.25 cash dividend was paid to
the Company’s stockholders.
The
Board and Mr. Karkus determined that it was in the best interests of the Company and its stockholders to reduce the cash compensation
payable to Mr. Karkus in order to further align Mr. Karkus’ interests with the interests of the Company and its stockholders,
and to provide more liquidity to the Company so that the Company could continue to expand its research and development efforts
for its over-the-counter dietary supplement initiatives, to develop ProPhase Digital Media and to pursue potential business opportunities
outside of the consumer products industry.
Mr.
Karkus is eligible to receive a bonus in the sole discretion of the Compensation Committee, and is also eligible to receive regular
benefits routinely provided to other senior executives of the Company.
Under
the terms of the CEO Employment Agreement, in the event of a termination of Mr. Karkus’ employment by the Company for “Cause”
or due to his voluntary resignation without a “Good Reason” (as such terms are defined in the CEO Employment Agreement)
(each an “Ineligible Termination”), no severance benefits will become payable to Mr. Karkus. If, however, Mr. Karkus’
employment is terminated by the Company for any reason other than termination for Cause or due to his voluntary resignation without
Good Reason (as defined in the agreements), then Mr. Karkus will be entitled to receive the benefits and payments set forth below.
Termination
of Employment Prior to February 22, 2021
Under
the terms of the CEO Employment Agreement, for the time period from the Effective Date until February 22, 2021, Mr. Karkus will
be eligible to receive a combination of accelerated vesting of the 2018 CEO Option and a cash severance payment upon a termination
of his employment other than an Ineligible Termination as set forth in the chart below.
Month in which Mr. Karkus’ employment
is terminated other than an Ineligible Termination
|
|
Ratio of 2018 CEO Option
subject to acceleration
of vesting
|
|
Cash severance
payment (based
upon a
total potential cash
severance payment of
$1,687,500)
|
|
February 2018
|
|
1
|
|
$
|
0
|
|
March 2018
|
|
35/36
|
|
$
|
46,875
|
|
April 2018
|
|
34/36
|
|
$
|
93,750
|
|
May 2018
|
|
33/36
|
|
$
|
140,625
|
|
June 2018
|
|
32/36
|
|
$
|
187,500
|
|
July 2018
|
|
31/36
|
|
$
|
234,375
|
|
August 2018
|
|
30/36
|
|
$
|
281,250
|
|
September 2018
|
|
29/36
|
|
$
|
328,125
|
|
October 2018
|
|
28/36
|
|
$
|
375,000
|
|
November 2018
|
|
27/36
|
|
$
|
421,875
|
|
December 2018
|
|
26/36
|
|
$
|
468,750
|
|
January 2019
|
|
25/36
|
|
$
|
515,625
|
|
February 2019
|
|
24/36
|
|
$
|
562,500
|
|
March 2019
|
|
23/36
|
|
$
|
609,375
|
|
April 2019
|
|
22/36
|
|
$
|
656,250
|
|
May 2019
|
|
21/36
|
|
$
|
703,125
|
|
June 2019
|
|
20/36
|
|
$
|
750,000
|
|
July 2019
|
|
19/36
|
|
$
|
796,875
|
|
August 2019
|
|
18/36
|
|
$
|
843,750
|
|
September 2019
|
|
17/36
|
|
$
|
890,625
|
|
October 2019
|
|
16/36
|
|
$
|
937,500
|
|
November 2019
|
|
15/36
|
|
$
|
984,375
|
|
December 2019
|
|
14/36
|
|
$
|
1,031,250
|
|
January 2020
|
|
13/36
|
|
$
|
1,078,125
|
|
February 2020
|
|
12/36
|
|
$
|
1,125,000
|
|
March 2020
|
|
11/36
|
|
$
|
1,171,875
|
|
April 2020
|
|
10/36
|
|
$
|
1,218,750
|
|
May 2020
|
|
9/36
|
|
$
|
1,265,625
|
|
June 2020
|
|
8/36
|
|
$
|
1,312,500
|
|
July 2020
|
|
7/36
|
|
$
|
1,359,375
|
|
August 2020
|
|
6/36
|
|
$
|
1,406,250
|
|
September 2020
|
|
5/36
|
|
$
|
1,453,125
|
|
October 2020
|
|
4/36
|
|
$
|
1,500,000
|
|
November 2020
|
|
3/36
|
|
$
|
1,546,875
|
|
December 2020
|
|
2/36
|
|
$
|
1,593,750
|
|
January 2021 – February 22, 2021
|
|
1/36
|
|
$
|
1,640,625
|
|
Termination
of Employment On or After February 23, 2021
Under
the terms of the CEO Employment Agreement, on or after February 23, 2021, Mr. Karkus will be eligible to receive the following
benefits and cash payments upon a Termination of Employment other than an Ineligible Termination:
|
●
|
A cash severance payment equal to 2.5 times his then current base
salary (i.e., 250% of his then current base salary). Such cash severance payment will be paid as follows: (x) one-half of
the cash severance payment will be paid in a lump sum within five business days following the effective date of the termination;
and (y) the remaining one-half of the cash severance payment will be paid in 12 equal, consecutive, monthly installments commencing
on the first business day of the month following the effective date of the termination; and
|
|
|
|
|
●
|
All
of his outstanding and unvested stock options and/or restricted stock will automatically vest concurrently upon such termination
of employment, regardless of any prior existing vesting schedules.
|
If
Mr. Karkus’s employment terminates by reason of his death or disability, then the cash payments described above under will
be paid only to the extent of the proceeds payable to the Company through a “key man” life, disability or similar
insurance relating to the death or disability of Mr. Karkus.
In
the event that Mr. Karkus has received a cash payment described above in connection with his termination of employment and it
is determined that his employment termination was in connection with a Change in Control, then Mr. Karkus will be entitled to
receive an additional payment as described below, less the amount of payments previously received in connection with the termination
of employment.
In the event Mr. Karkus’ employment terminates due to a reason
other than an Ineligible Termination, death or disability, and if such termination occurs within (i) 18 months following a Change
in Control, or (ii) prior to a Change in Control but in contemplation of a Change in Control which a Change in Control actually
occurs, then, in lieu of the cash payments described above, Executive will instead receive a one-time payment in cash equal to
$2,500,000. In addition, in such event, all of Mr. Karkus’ stock options and/or restricted stock will automatically vest
concurrently upon such termination of employment, regardless of any prior existing vesting schedule.
The involuntary termination of Mr. Karkus’ employment due
to a reason other than an Ineligible Termination, death or disability within 180 days preceding a Change of Control will be deemed
to have been a termination of employment in contemplation of a Change in Control.
In determining whether a termination of Mr. Karkus’ employment
occurring more than 180 days preceding a Change of Control (due to a reason other than an Ineligible Termination, death or disability)
constitutes a termination of employment in contemplation of a Change in Control, the court or other tribunal making such determination
will consider the totality of facts and circumstances surrounding such termination of employment.
In
addition, Mr. Karkus, and his eligible dependents, will be entitled to Company-paid COBRA continuation coverage premiums under
the Company’s welfare plans, for a period of up to 18 months. Notwithstanding the above, if a termination of employment
occurs as a result of death or disability, then any cash severance payment will only be made to the extent that the proceeds are
payable to the Company through a “key man” life, disability or similar insurance policy.
No
Excise Tax Gross-Up
The
CEO Employment Agreement does not provide for tax reimbursement payments or gross-ups related to any change in control. Under
the terms of his CEO Employment Agreement, if any payments payable or benefits provided to Mr. Karkus become subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code or to any similar tax imposed by state or local law, then the aggregate
amount of payments payable to Mr. Karkus will be reduced to the aggregate amount of payments that could be made without incurring
such excise tax, provided that such reduction will only be imposed if the aggregate after-tax value of the payments retained by
Mr. Karkus (after giving effect to such reduction) is equal to or greater than the aggregate after-tax value (after giving effect
to the excise tax) of the payments without any such reduction.
Clawback
Provision
The
CEO Employment Agreement includes a clawback provision. In the event the following events occur:
|
●
|
a
mandatory restatement of the Company’s financial results occurs while the Company remains publicly traded and is attributable
to misconduct or wrongdoing by Mr. Karkus;
|
|
|
|
|
●
|
Mr. Karkus received a payment of a cash bonus or was issued any
Company shares as a bonus within three years preceding the mandatory restatement; and
|
|
|
|
|
●
|
the
amount of such cash bonus or share grant was calculated and awarded pursuant to a specific financial formula, and the cash
bonus or share grant would have been diminished based on the restated financial results had the financial formula been applied
using the restated financial results;
|
then
Mr. Karkus will be required to remit to the Company the amount by which the original cash bonus or share grant would have been
diminished, net of taxes originally paid. However, if the net effect of the restatement is effectively neutral to the Company
over the applicable time periods, then no clawback amount will be due from Mr. Karkus.
Compensation
Arrangement with Monica Brady
On
September 26, 2017, the board of directors appointed Monica Brady as the Company’s Chief Accounting Officer, effective October
2, 2017. In connection with Ms. Brady’s appointment as Chief Accounting Officer, Ms. Brady’s annual base salary was
increased to $132,000.
In
January 2019, the board of directors appointed Monica Brady as Chief Financial Officer. In connection with Ms. Brady’s appointment
as Chief Financial Officer, Ms. Brady’s annual base salary was increased to $142,000.
Outstanding
Equity Awards at 2019 Fiscal Year End
|
|
Option Awards
|
Name
|
|
Number of Securities Underlying Unexercised Options Exercisable
|
|
|
Equity Incentive Plan Awards Number of Securities Underlying Unexercised Unearned Options
|
|
|
Option Exercise
Price ($)
|
|
|
Option
Expiration Date
|
Ted Karkus
|
|
|
1,405,536
|
|
|
|
894,464
|
(1)
|
|
|
1.50
|
|
|
2/22/2023
|
|
|
|
150,000
|
|
|
|
300,000
|
(2)
|
|
|
2.00
|
|
|
4/27/2024
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Monica Brady
|
|
|
18,750
|
(3)
|
|
|
6,250
|
(3)
|
|
|
2.15
|
|
|
9/26/2024
|
|
|
|
12,500
|
(4)
|
|
|
37,500
|
(4)
|
|
|
3.18
|
|
|
12/3/2025
|
|
|
|
25,000
|
(5)
|
|
|
75,000
|
(5)
|
|
|
2.01
|
|
|
11/19/2026
|
(1)
|
Award
of 2,300,000 options was granted on February 23, 2018 and vests in 35 equal monthly installments of 63,888 shares on the first
day of each month beginning on March 1, 2018, and one monthly installment of 63,920 shares on the first day of the 36th month
following the Initial Vesting Date.
|
|
|
(2)
|
Award
of 600,000 options was granted on April 27, 2017 and vests in four equal annual installments beginning April 26, 2018. As
of December 31, 2019, Mr. Karkus had exercised 150,000 shares pursuant to this option.
|
|
|
(3)
|
Award
of 25,000 options was granted on September 26, 2017, with 6,250 shares vested as of the grant date and the remaining 18,750
shares vesting in three equal annual installments beginning September 26, 2018.
|
|
|
(4)
|
Award
of 50,000 options was granted on December 4, 2018 and vests in four equal annual installments beginning December 04, 2019.
|
|
|
(5)
|
Award
of 100,000 options was granted on November 20, 2019 and vests in four equal annual installments beginning on November 20,
2019.
|
Director
Compensation for 2019
Name (1)
|
|
Fees Earned or
Paid in Cash
($)
|
|
|
All Other
Compensation
($)
|
|
|
Total
($)
|
|
Jason Barr
|
|
$
|
45,000
|
(2)
|
|
|
—
|
|
|
$
|
45,000
|
|
Louis Gleckel, MD
|
|
$
|
45,000
|
(2)
|
|
|
—
|
|
|
$
|
45,000
|
|
Warren Hirsch
|
|
$
|
27,445
|
|
|
|
—
|
|
|
$
|
27,445
|
|
|
(1)
|
Our
employee directors do not receive director fees. Accordingly, Mr. Ted Karkus, a director and the Chairman of the Board and
the Chief Executive Officer of the Company, is not entitled to, and did not receive, any compensation for his service on the
Board in 2019.
|
|
|
|
|
(2)
|
Dr.
Gleckel elected to receive shares of common stock in lieu of cash payment for his quarterly director fees in 2019 reflected
in this column and was issued a total of 19,602 shares. Mr. Barr elected to receive shares of common stock in lieu of cash
payment for 50% of his quarterly director fees in 2019 reflected in this column and was issued a total of 14,152 shares.
|
In
setting director compensation, the Company considers the significant amount of time that directors expend in fulfilling their
duties to the Company. Each non-employee director received a quarterly Board fee of $11,250, paid promptly following the close
of each quarter, pro-rated for partial service. Non-employee directors do not receive additional fees for attendance at Board
or committee meetings.
We
reimburse each non-employee member of our Board for out-of-pocket expenses incurred in connection with attending Board and Committee
meetings. Non-employee directors do not participate in any Company nonqualified deferred compensation plan and we do not pay any
life insurance policies for the directors. Any director who is an employee of the Company is not entitled to compensation for
service as a Board member.
EQUITY
COMPENSATION PLAN INFORMATION
The
table below sets forth information with respect to shares of common stock that may be issued under our equity compensation plans
issued as of December 31, 2019:
Plan Category
|
|
Number of Securities
to be Issued Upon
Exercise of
Outstanding
Options, Warrants
and Rights
|
|
|
Weighted-Average
Exercise Price of
Outstanding
Options, Warrants
and Rights
|
|
|
Number of Securities
Remaining Available
for Future Issuance
Under Equity
Compensation Plans
(Excluding
Securities Reflected
in Column (a))
|
|
|
|
(a)
|
|
|
(b)
|
|
|
(c)
|
|
Equity compensation plans approved by security holders(1)(2)(3)
|
|
|
3,082,000
|
|
|
$
|
1.67
|
|
|
|
887,445
|
|
Equity compensation plans not approved by security holders
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Total
|
|
|
3,082,000
|
|
|
$
|
1.67
|
|
|
|
887,445
|
|
(1)
|
On
May 5, 2010, our stockholders approved the 2010 Plan which, was subsequently amended and restated and approved by stockholders
on April 24, 2011, further amended and approved by stockholders on May 6, 2013, further amended and restated and approved
by stockholders on May 24, 2016, and further amended and restated and approved by stockholders on May 23, 2018. The 2010 Plan
provides that the total number of shares of Common Stock that may be issued under the 2010 Plan is equal to 3,900,000 shares.
At December 31, 2019, we had outstanding 782,000 stock options, subject to vesting, under the 2010 Plan. At December 31, 2019,
there were 528,659 shares of Common Stock that were available for issuance pursuant to the 2010 Plan.
|
|
|
(2)
|
On
May 5, 2010, our stockholders approved the 2010 Directors’ Equity Compensation Plan, which was subsequently amended
and approved by our stockholders on May 6, 2013, and further amended and restated and approved by stockholders on May 23,
2018. The 2010 Directors’ Equity Compensation Plan provides that the total number of shares of Common Stock that may
be issued under the 2010 Directors’ Equity Compensation Plan is equal to 675,000. At December 31, 2019, there were no
shares of our Common Stock outstanding pursuant to awards under the 2010 Directors’ Equity Compensation Plan. At December
31, 2019, there were 359,786 shares of Common Stock that were available for issuance pursuant to the 2010 Directors Equity
Compensation Plan.
|
|
|
(3)
|
On
April 12, 2018, our stockholders approved the 2018 Stock Incentive Plan. Subject to certain adjustments described therein,
the maximum number of shares of the Company’s common stock that may be issued pursuant to stock options awarded under
the 2018 Stock Incentive Plan is 2,300,000 shares. All shares of common stock authorized for issuance under the 2018 Stock
Incentive Plan have been reserved for the stock option granted to Mr. Karkus on February 2018.
|
SECURITY
OWNERSHIP
The
following table sets forth information regarding ownership of our Common Stock as of April 9, 2020 by (a) each person known
to the Company to own more than 5% of the outstanding shares of our Common Stock, (b) each director and nominee for director of
the Company, (c) the named executive officers and (d) all directors and executive officers as a group. Unless otherwise indicated,
the address of each person or entity listed below is the Company’s principal executive office.
Name of Beneficial Owners
|
|
Common Stock
Beneficially
Owned(1)
|
|
|
Percent of Class
|
|
Officers and Directors
|
|
|
|
|
|
|
|
|
Ted Karkus(2)
|
|
|
4,638,392
|
|
|
|
33.8
|
%
|
Monica Brady(3)
|
|
|
63,678
|
|
|
|
*
|
|
Jason Barr
|
|
|
25,514
|
|
|
|
*
|
|
Louis Gleckel, MD
|
|
|
215,962
|
|
|
|
1.6
|
%
|
Warren Hirsch
|
|
|
-
|
|
|
|
*
|
|
ALL DIRECTORS AND EXECUTIVE OFFICERS
|
|
|
2,798,432
|
|
|
|
36.0
|
%
|
(Five Persons)
|
|
|
|
|
|
|
|
|
*
Less than 1%
(1)
|
Beneficial
ownership has been determined in accordance with Rule 13d-3 (“Rule 13d-3”)
under the Exchange Act, and unless otherwise indicated, represents shares for which the
beneficial owner has sole voting and investment power. The percentage of class is calculated
in accordance with Rule 13d-3 based on 11,591,648 shares outstanding on April 9,
2020 and includes options or other rights to subscribe for shares of Common Stock
which are exercisable within 60 days of April 9, 2020.
|
|
|
(2)
|
Includes
2,549,528 shares and options to purchase 2,088,864 shares that are vested or will vest within 60 days of April 9, 2020.
|
|
|
(3)
|
Includes
7,428 shares and options to purchase 56,250 shares that are vested or will vest within 60 days of April 9, 2020.
|
DELINQUENT
SECTION 16(a) REPORTS
Section
16(a) of the Securities Exchange Act of 1934, as amended, requires the Company’s officers, directors and persons who own
more than ten percent of a registered class of the Company’s equity securities to file reports of ownership and changes
in ownership with the SEC. Officers, directors and greater than ten-percent stockholders are required by the SEC’s regulations
to furnish the Company with copies of all Section 16(a) forms they file. The Company is not aware of any reports of ownership
or changes in ownership of its officers, directors and greater than ten-percent stockholders that were filed or required to be
filed during 2019 other than a late Form 4 filed by Dr. Gleckel on January 15, 2019, reporting the issuance to him of 3,583 shares
of Company common stock in lieu of director fees on January 2, 2019, a late Form 4 filed by Dr. Gleckel on August 16, 2019, reporting
the issuance to him of 4,727 shares of Company common stock in lieu of director fees on July 1, 2019, and a late Form 3 filed
by Mr. Hirsch on December 17, 2019.
Audit
COMMITTEE Report
The
members of the Audit Committee are Mr. Barr, Dr. Gleckel and Warren Hirsch (Chairman), who are independent directors and meet
the eligibility standards for audit committee service under the rules of Nasdaq.
Management
is responsible for the preparation, presentation and integrity of the Company’s consolidated financial statements and the
Company’s internal control over financial reporting. The independent registered public accounting firm of EisnerAmper LLP
is responsible for performing an independent audit of the Company’s consolidated financial statements. Under the guidance
of a written charter adopted by the Board, the purpose of the Audit Committee is to oversee the accounting and financial reporting
processes of the Company and audits of its financial statements. The responsibilities of the Audit Committee include appointing
and providing for the compensation of the registered public accounting firm.
In
this context, the Audit Committee reports as follows:
|
1.
|
The
Audit Committee has reviewed and discussed with management the Company’s audited financial statements for the year ended
December 31, 2019;
|
|
|
|
|
2.
|
The
Audit Committee has discussed with representatives of EisnerAmper LLP the matters required to be discussed by the applicable
requirements of the Public Company Accounting Oversight Board and the SEC;
|
|
|
|
|
3.
|
The
Audit Committee also has received and reviewed the written disclosures and the letter from EisnerAmper LLP required by applicable
requirements of the Public Company Accounting Oversight Board regarding such firm’s communications with the Audit Committee
concerning independence, and has discussed with such firm its independence;
|
|
|
|
|
4.
|
The
Audit Committee also has considered whether the provision by EisnerAmper LLP of non-audit services to the Company is compatible
with maintaining EisnerAmper LLP’s independence; and
|
|
|
|
|
5.
|
The
Audit Committee also has instructed the registered public accounting firm that the Audit Committee expects to be advised if
there are any subjects that require special attention.
|
Based
on the review and discussions referred to above, the Audit Committee recommended to the Board that the Company’s audited
financial statements referred to above be included in the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2019 for filing with the SEC.
|
Audit
Committee
|
|
|
|
Jason
Barr
|
|
Louis
Gleckel
Warren
Hirsch (Chairman)
|
The
foregoing report of the Audit Committee shall not be deemed filed with the SEC under the Securities Act of 1933 or the Securities
Exchange Act of 1934, nor shall such report be incorporated by reference by any general statement incorporating by reference this
Proxy Statement or future filings into any filing under such Acts except to the extent that the Company specifically incorporates
such report by reference.
Audit
and NON-Audit
Fees
The
table set forth below lists the fees billed to the Company by EisnerAmper LLP for audit services rendered in connection with the
audits of our consolidated financial statements for the years ended December 31, 2019 and 2018, and fees billed for other services
rendered by EisnerAmper LLP during these periods.
Description
|
|
2019
|
|
|
2018
|
|
Audit fees(1)
|
|
$
|
180,000
|
|
|
$
|
256,500
|
|
Audit related fees Tax fees
|
|
|
—
|
|
|
|
—
|
|
All other fees
|
|
|
—
|
|
|
|
—
|
|
Total
|
|
$
|
180,000
|
|
|
$
|
256,500
|
|
(1)
|
Comprised
of the audit of our annual financial statements and reviews of our quarterly financial statements.
|
The
Audit Committee reviews and pre-approves all audit and non-audit services to be provided by the independent auditor (other than
with respect to the de minimis exceptions permitted under applicable law). This duty may be delegated to one or more designated
members of the Audit Committee with any such pre-approval reported to the Audit Committee at its next regularly scheduled meeting.
PROPOSAL
2 - RATIFICATION OF THE APPOINTMENT OF INDEPENDENT AUDITORS
Upon
the recommendation of our Audit Committee, the Board has appointed EisnerAmper LLP as the Company’s independent public auditor
for the fiscal year ending December 31, 2020. Although the selection of auditor does not require ratification, the Board has directed
that the appointment of EisnerAmper LLP be submitted to stockholders for ratification due to the significance of their appointment
to the Company. A representative of EisnerAmper LLP is expected to be present at the Annual Meeting. Such representative will
have an opportunity to make a statement if so desired and will be available to respond to appropriate questions from stockholders.
Required
Vote
Approval
of the ratification of our independent registered public accounting firm will require the affirmative vote of a majority of the
votes cast on such proposal by the Shares present in person or represented by proxy at the Annual Meeting and entitled to vote
thereon. A quorum must be present at the Annual Meeting for a valid vote.
Recommendation
of the Board of Directors
THE
BOARD OF DIRECTORS, UPON THE RECOMMENDATION OF THE AUDIT COMMITTEE, RECOMMENDS A VOTE “FOR” THE RATIFICATION
OF THE APPOINTMENT OF EISNERAMPER LLP AS INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE COMPANY FOR THE FISCAL YEAR ENDING
DECEMBER 31, 2020. PROXIES SOLICITED BY THE BOARD WILL BE VOTED “FOR” RATIFICATION OF EISNERAMPER LLP AS THE
COMPANY’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM UNLESS STOCKHOLDERS SPECIFY A CONTRARY VOTE.
OTHER
INFORMATION
Attending
the Annual Meeting
The
Annual Meeting will take place at the offices of Hirsch CPA, 273 Merrick Road, Lynbrook, New York 11563, on Wednesday,
May 20, 2020, at 4:00 p.m., Eastern Time. If you have questions about attending the Annual Meeting, please contact Investor Relations
by phone at (215) 345-0919.
Stockholder
Proposals
The Company’s Bylaws provide that advance notice of a stockholder’s
proposal must be delivered to the Secretary of the Company at the Company’s principal executive offices not less than 90
days nor more than 120 days prior to the one-year anniversary of the preceding year’s annual meeting; provided, however,
that if the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered, or mailed and received, not later than the 90th day prior to such annual meeting,
or, if such meeting is announced later than the 90th day prior to the date of such meeting, the 10th day following the day on which
public disclosure of the date of such annual meeting was first made.
Other
than a proposal made pursuant to Rule 14a-8, each stockholder making a proposal must provide, (A) the name and address of such
person (including, if applicable, the name and address that appear on the Company’s books and records); and (B) the class
or series and number of shares of the Company that are, directly or indirectly, owned of record or beneficially owned (within
the meaning of Rule 13d-3 under the Exchange Act) by such person, except that such person shall in all events be deemed to beneficially
own any shares of any class or series of the Company as to which such person has a right to acquire beneficial ownership at any
time in the future. In addition, each person must provide information relating to their derivative and short positions in the
Company’s securities, as set out in the Company’s Bylaws.
Other
than with respect to a proposal made pursuant to Rule 14a-8, as to each item of business that the stockholder proposes to bring
before the annual meeting, such stockholder must provide (A) a reasonably brief description of the business desired to be brought
before the annual meeting, the reasons for conducting such business at the annual meeting and any material interest in such business
of the stockholder, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration),
and (C) a reasonably detailed description of all agreements, arrangements and understandings (x) between or among any of the proposing
stockholders or (y) between or among any proposing stockholder and any other record or beneficial holder of the shares of any
class or series of the Company (including their names) in connection with the proposal of such business by such stockholder.
A
copy of the full text of the provisions of the Company’s Bylaws dealing with stockholder proposals is available to stockholders
from the Secretary of the Company upon written request and an electronic copy of which is available at the SEC’s website
located at www.sec.gov. For business or nominations intended to be brought to the 2021 Annual Meeting of Stockholders,
the notice deadline is prior to February 19, 2021 but not earlier than January 20, 2021. Stockholder proposals or director nominations
submitted outside these dates may not be presented at the 2021 Annual Meeting of Stockholders.
Under
the rules of the SEC, stockholders who wish to submit proposals for inclusion in the Proxy Statement for the 2021 Annual Meeting
of Stockholders must submit such proposals to the Company by December 21, 2020. Please address such proposals to: Secretary, ProPhase
Labs, Inc., 621 N. Shady Retreat Road, Doylestown, PA 18901.
Expenses
and Solicitation
All
expenses in connection with this solicitation will be borne by the Company. In addition to the use of the mail, proxy solicitation
may be made by telephone, telegraph and personal interview by officers, directors and employees of the Company. The Company will,
upon request, reimburse brokerage houses and persons holding shares in the names of their nominees for their reasonable expenses
in sending soliciting material to their principals.
Householding
of Proxy Materials
In
some cases, only one copy of this Proxy Statement and our 2019 Annual Report is being delivered to multiple stockholders sharing
an address. However, this delivery method, called “householding,” is not being used if the Company has received contrary
instructions from one or more of the stockholders. The Company will deliver promptly, upon written or oral request, a separate
copy of this Proxy Statement and our 2019 Annual Report to a stockholder at a shared address to which a single copy of the documents
were delivered. To obtain a separate copy of our Proxy Statement and our 2019 Annual Report, send such request Monica Brady, Chief
Financial Officer, at our offices located at 621 N. Shady Retreat Road, Doylestown, Pennsylvania 18901.
Other
Business
The
Board knows of no business that will be presented for consideration at the meeting other than those items stated above. If any
other business should come before the Annual Meeting, votes may be cast pursuant to Proxies in respect to any such business in
the best judgment of the person or persons acting under the Proxies. The final results of the balloting at the 2020 Annual Meeting
will appear in the Company’s Current Report on Form 8-K within four business days of the meeting.
This
Proxy Statement, the Notice of 2020 Annual Meeting of Stockholders and the Company’s 2019 Annual Report are available online
at: http://www.astproxyportal.com/ast/07814/.
YOUR
VOTE IS IMPORTANT!
You
are cordially invited to attend the Annual Meeting. However, to ensure that your shares are represented at the meeting, please
submit your Proxy or voting instructions by mail. Please see the instructions on the Proxy and voting instruction card. Submitting
a proxy or voting instructions will not prevent you from attending the Annual Meeting and voting in person, if you so desire,
but will help the Company secure a quorum and reduce the expense of additional proxy solicitation.
ProPhase Labs (NASDAQ:PRPH)
Historical Stock Chart
From Mar 2024 to Apr 2024
ProPhase Labs (NASDAQ:PRPH)
Historical Stock Chart
From Apr 2023 to Apr 2024