PART
III
ITEM 10 – DIRECTORS, EXECUTIVE OFFICERS
AND CORPORATE GOVERNANCE
Directors and Executive Officers
Set forth below is the name, age, position and
brief biographies of each of our executive officers and directors as of April 21, 2022.
| |
|
|
| Name |
Age |
Position |
| |
|
|
| Mr. Jeffrey Eisenberg |
56 |
Chief Executive Officer and Director |
| Dr. Curtis Lockshin |
61 |
Chief Scientific Officer |
| Mr. James Parslow |
57 |
Chief Financial Officer and Corporate Secretary |
| Dr. Grigory Borisenko |
53 |
Director |
| Dr. James Callaway |
65 |
Director (1), (2), (3) |
| Mr. Firdaus Jal Dastoor, FCS |
69 |
Director (1), (2) |
| Dr. Roger Kornberg |
74 |
Director (3) |
| Mr. Adam Logal |
44 |
Director (1), (2), (3) |
| Dr. Alexey Vinogradov |
51 |
Director |
__________________
| |
(1) |
Member of the Audit Committee |
|
| |
(2) |
Member of the Compensation Committee |
|
| |
(3) |
Member of the Nominating and Corporate Governance Committee |
|
Jeffrey Eisenberg was appointed
our Chief Executive Officer on October 26, 2017, after serving as Chief Operating Officer since December 2, 2016, and has served as a
member of our Board since July 2016. Mr. Eisenberg previously worked at Noven Pharmaceuticals, Inc. (“Noven”), a subsidiary
of Hisamitsu Pharmaceutical, Inc., where he held various positions of increasing responsibility, most recently serving from 2009-2016
as Noven’s president, chief executive officer and as a member of its board of directors. Mr. Eisenberg previously served as an independent
director for Mabvax Therapeutics Holdings, Inc. from February 2016 until his resignation in July 2018. Mr. Eisenberg obtained his J.D.
at Columbia University Law School and a B.S. in Economics from the Wharton School, University of Pennsylvania. We believe Mr. Eisenberg’s
significant life science executive experience and leadership experience in the areas of R&D, operations, manufacturing/quality, business
development, strategic partnering, product development, commercialization, and human resources provides him with the appropriate set of
skills to serve as a member of our Board.
Dr. Curtis Lockshin initially joined
us on a part-time basis in March 2014 as our Vice President of Research & Operations and was appointed our Chief Scientific Officer
effective January 1, 2017. Dr. Lockshin has held several management positions at development and commercial stage biotechnology companies,
with experience including discovery, preclinical and clinical development, as well as commercial manufacturing. Since May 2013, he has
held the position of president and chief executive officer of Guardum Pharmaceuticals LLC (“Guardum”), a wholly owned subsidiary
of PJSC Pharmsynthez, a position which he continues to hold in addition to his position with us. Dr. Lockshin does not receive a salary
for these services but did receive medical benefits and was covered under Guardum’s health plan through July 31, 2018. In addition,
Dr. Lockshin has served as an officer or consultant of several biotechnology companies on a part-time basis, including as an officer of
a series of related companies following multiple mergers beginning as chief executive officer and director of SciVac Therapeutics, Inc.
and its subsidiary SciVac, Ltd., from September 2014 until July 2016. After SciVac Therapeutics, Inc.’s merger with VBI Vaccines,
Inc. in July 2016, Dr. Lockshin served as chief technical officer of the merged company until December 2016. Dr. Lockshin is currently
serving as a member of the board of directors of Phio Pharmaceuticals Corporation, a publicly traded clinical-stage RNAi company focused
on immune-oncology, a position he has held since April 2013. Dr. Lockshin has an S.B. in Life Sciences and a Ph.D. in Biological Chemistry
from the Massachusetts Institute of Technology. Since April 2004, Dr. Lockshin has also served as a member of the board of directors of
the Ruth K. Broad Biomedical Research Foundation, a Duke University Support Corporation that supports basic research related to Alzheimer’s
disease and neurodegeneration via intramural, extramural and international grants.
James Parslow was appointed
our Chief Financial Officer on April 3, 2017. Mr. Parslow most recently served as Chief Financial Officer, Treasurer and Secretary of
World Energy Solutions, Inc., a publicly-traded business-to-business e-commerce company brokering energy and environmental commodities,
from 2006 until its acquisition by EnerNOC, Inc. in 2015. From 2015 until 2017, he served as an independent consultant providing interim
chief financial officer services to multiple emerging technology companies. Mr. Parslow is a Certified Public Accountant with over 30
years of experience serving private and public companies in the biotech, clean tech, e-commerce, and high-tech manufacturing industries.
He holds an A.B. in Economics and Accounting from the College of the Holy Cross and an M.B.A. with a concentration in Finance from Bentley
University.
Grigory Borisenko, PhD, was
appointed to the Board in September 2019. Dr. Borisenko has over 20 years of scientific, management and strategic experience in the
life science field. Mr. Borisenko has served as an Investment Director of RUSNANO Management Company LLC, a venture capital &
private equity management company in Russia, and has specialized in investment projects in life sciences from 2012 through March 31,
2022. From 2009 through 2012, he was a head of the pharmaceutical sector of the Department of Science and Technology Expertise at
the state corporation, RUSNANO. Mr. Borisenko currently serves on the board of directors of Novamedica LLC and RusnanoMedInvest LLC.
Prior to that he served on the board of directors of Atea Pharmaceuticals, Inc., Adastra Pharmaceuticals, Inc., and Nearmedic Pharm
LLC. Prior to his investment career, Mr. Borisenko held academic appointments with the University of Pittsburgh, Russian State
Medical University and Institute of Medico-Biological Problems. He has co-authored over fifty peer-reviewed publications in leading
biochemistry and cell biology journals. Mr. Borisenko received his M.S. and Ph.D. from the Russian State Medical University, and is
a recipient of Fogarty International and International Fellowship Awards from NIH. We believe Mr. Borisenko’s extensive
background in the life sciences and biotechnology industries provide him with the appropriate set of skills to serve as a member of
our Board.
James Callaway, PhD was appointed
to the Board on August 14, 2017. Dr. Callaway has over 30 years of experience in the execution of product development operations for biotherapeutics
and currently serves as an independent board member of KalGene Pharmaceuticals (“KalGene”) and Nuravax. Dr. Callaway is a
seasoned CEO within the venture-backed biotech community and over the course of his career he has built and operated several companies,
transforming each from research companies to clinical stage operating entities. He also serves as a Corporate Strategy Consultant to the
biotech community at Callaway Innovations. Dr. Callaway has served as CEO of privately-held biotech companies including KalGene, a company
focused on disease-modifying therapies in Alzheimer’s Disease, ArmaGen, Inc., a BBB transport company, and CEBIX, Inc., a diabetic
neuropathy company. Prior to these efforts, Dr. Callaway held multiple senior leadership positions at Elan Pharmaceuticals, including
simultaneously acting as Head of Development and overseeing the complex partnership with Wyeth Pharmaceuticals in the Alzheimer’s
disease immunotherapy program. He has developed antibodies for a wide-range of therapeutic applications over the past two decades, including
treatments of multiple sclerosis (Tysabri®: pharmaceutical development), Alzheimer’s disease (bapineuzumab: Program Executive),
and blood brain barrier transport, and has worked with the United States Food and Drug Administration on multiple orphan drug development
programs. We believe Dr. Callaway’s significant life sciences executive, leadership and strategic experience in the area of biotherapeutics
provides him with the appropriate set of skills to serve as a member of our Board.
Firdaus Jal Dastoor, FCS, was
initially appointed as a member of our Board in January 2014 pursuant to terms of the agreement of our acquisition of Xenetic U.K. He
has been employed by the Cyrus Poonawalla Group, a conglomerate in India with interests in horse breeding, biotech and life sciences,
and financial services, in business development strategies and operational roles since October 1981. Mr. Dastoor is currently a Group
Director in charge of Finance and Corporate Affairs and Company Secretary of the Serum Institute of India Private Limited at the Cyrus
Poonawalla Group. He has been a Fellow Member of The Institute of Company Secretaries of India since 1990. Mr. Dastoor is on the board
of several private companies operating in the fields of life sciences and biotech, international trade, financial services and quality
standards certifications. Mr. Dastoor received a B.A. in Commerce from the University of Poona. We believe Mr. Dastoor’s knowledge
of investments in the life sciences and biotechnology industries, and his finance and business development background provide him with
the appropriate set of skills to serve as a member of our Board.
Dr. Roger Kornberg has served
as a member of our Board since February 2016. Dr. Kornberg is a member of the U.S. National Academy of Sciences and the Winzer Professor
of Medicine in the Department of Structural Biology at Stanford University. He earned his B.S. in chemistry from Harvard University in
1967 and his Ph.D. in chemical physics from Stanford in 1972. He became a postdoctoral fellow at the Laboratory of Molecular Biology in
Cambridge, England and then an assistant professor of biological chemistry at Harvard Medical School in 1976, before moving to his present
position as professor of structural biology at Stanford Medical School in 1978. In 2006, Dr. Kornberg was awarded the Nobel Prize in Chemistry
in recognition for his studies of the molecular basis of Eukaryotic Transcription, the process by which DNA is copied to RNA. Dr. Kornberg
is also the recipient of several awards, including the 2001 Welch Prize, the highest award granted in the field of chemistry in the United
States, and the 2002 Leopald Mayer Prize, the highest award granted in the field of biomedical sciences from the French Academy of Sciences.
Dr. Kornberg has served as a director of Cocrystal Pharma, Inc. (NasdaqCM: COCP) since April 2020. We believe Dr. Kornberg’s prior
experience serving on the boards of directors of large organizations as well as his scientific background provides him with the appropriate
set of skills to serve as a member of our Board.
Adam Logal was appointed to the
Board in August 2017. Mr. Logal has 20 years of experience in the biopharmaceuticals industry. Since April 2014, Mr. Logal has served
as Senior Vice President, Chief Financial Officer, Chief Accounting Officer and Treasurer of OPKO Health, Inc., a publicly-traded company,
and from March 2007 until April 2014 served as OPKO’s Vice President of Finance, Chief Accounting Officer and Treasurer. Mr. Logal
served as a director of VBI Vaccines, Inc., a publicly-traded company, from May 2015 through October 2018 and served as its Audit Committee
Chairman. Prior to joining OPKO, Mr. Logal served in various financial management roles at Nabi Biopharmaceuticals, a commercial
stage biopharmaceutical company. Mr. Logal is a strategic finance executive with extensive experience in SEC compliance and reporting,
domestic and international finance, strategic planning, cash flow management, budgeting, taxation, treasury and business development.
We believe Mr. Logal’s extensive financial experience with public companies in the life sciences industry provides him with the
appropriate set of skills to serve as a member of our Board.
Alexey Vinogradov has served as
a member of our Board since July 2019. Mr. Vinogradov currently serves as Business Development Director and Operations Director at Cantreva
LLC, a Russian company with extensive specialized experience of delivering services in the field of renewable energy (solar, wind, hydro
power), performing works on a “turnkey” basis since September 2017. Mr. Vinogradov previously served as General Manager at
Togas Middle East LLC in Dubai, UAE from May 2015 to May 2017. Prior to that, Mr. Vinogradov served as branch manager at Togas Group LLC
in Russia from March 2012 to November 2016. We believe Mr. Vinogradov’s experience in business communication, international business
development and financial analytics provides him with the appropriate set of skills to serve as a member of our Board.
There are no family relationships among any of
our directors and executive officers and, to the best of our knowledge, none of our directors or executive officers has, during the past
ten years, been involved in any legal proceedings which are required to be disclosed pursuant to the rules and regulations of the SEC.
Board Role in Risk Oversight and Board Leadership
Our management is principally responsible for
defining the various risks facing the Company, formulating risk management policies and procedures, and managing our risk exposures on
a day-to-day basis. The Board’s principal responsibility in this area is to ensure that sufficient resources, with appropriate technical
and managerial skills, are provided throughout the Company to identify, assess and facilitate processes and practices to address material
risk and to monitor our risk management processes by informing itself concerning our material risks and evaluating whether management
has reasonable controls in place to address the material risks. The involvement of the Board in reviewing our business strategy is an
integral aspect of the Board’s assessment of management’s tolerance for risk and its determination of what constitutes an
appropriate level of risk for the Company.
We separate the roles of Chief Executive Officer
and Board Chair in recognition of the differences between the two roles. The Board of Directors is currently chaired by independent director,
Adam Logal, and our Chief Executive Officer, Jeffrey Eisenberg, is our only employee-director. The Chief Executive Officer is responsible
for setting the strategic direction for the Company and the day to day leadership and performance of the Company, while the Board Chair
is responsible for leading the Board in the execution of its fiduciary duties. The Board Chair presides over meetings of the full Board.
While we recognize that different board leadership structures may be appropriate for companies in different situations, we believe our
current leadership structure is the optimal structure for the Company at this time.
Our Board of Directors
During fiscal year 2021, the following served
as a member of the Company’s Board of Directors: Jeffrey Eisenberg, Dr. Grigory G. Borisenko, Dr. James Callaway, Firdaus Jal Dastoor,
Dr. Roger Kornberg, Dr. Dmitry Genkin, Adam Logal and Mr. Alexey Vinogradov. On July 15, 2021, Dr. Dmitry Genkin resigned as a member
of the Board. On August 25, 2021, the Directors voted to set the size of the Board to seven members. Directors shall hold office for a
one-year term or until their successors have been duly elected and qualified. Vacancies on the Board resulting from death, resignation,
disqualification, removal, or other causes can be filled by the affirmative vote of a majority of the directors then in office. Any director
so elected, shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until
such director’s successor shall have been duly elected and qualified.
Committees of the Board
The Board has three standing committees: an Audit
Committee, a Compensation Committee, and a Nominating and Corporate Governance Committee. The Board also has one special committee: the
Financing Committee, which was formed in August 2020. The Company has adopted charters to govern the conduct, authority and responsibilities
of each of the Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee, which are available to stockholders
on the Company’s website at http://ir.xeneticbio.com/. The information on our website is not incorporated by reference into, or
a part of, this Amendment or the Original Filing.
Audit Committee
The Audit Committee of the Board of Directors
was established by the Board in accordance with Section 3(a)(58)(A) of the Exchange Act to oversee the Company’s corporate accounting
and financial reporting processes and audits of its financial statements. For this purpose, the Audit Committee performs several functions.
The Audit Committee evaluates the performance of and assesses the qualifications of the independent auditors; determines and approves
the engagement of the independent auditors; determines whether to retain or terminate the existing independent auditors or to appoint
and engage new independent auditors; reviews and approves the retention of the independent auditors to perform any proposed permissible
non-audit services; monitors the rotation of partners of the independent auditors on the Company’s audit engagement team as required
by law; reviews and approves or rejects transactions between the Company and any related persons; confers with management and the independent
auditors regarding the effectiveness of internal control over financial reporting; establishes procedures, as required under applicable
law, for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls
or auditing matters and the confidential and anonymous submission by employees of concerns regarding questionable accounting or auditing
matters; and meets to review the Company’s annual audited financial statements and quarterly financial statements with management
and the independent auditor, including a review of the Company’s disclosures under the “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” section of the Company’s Annual Report to Stockholders on Form
10-K.
For the fiscal year 2021, the Audit Committee
was composed of three directors: Mr. Dastoor, Dr. Callaway, and Mr. Logal (chair). The Audit Committee met five times during fiscal year
2021. The Board has adopted a written Audit Committee charter that is available to stockholders on the Company’s website at http://ir.xeneticbio.com/.
The information on our website is not incorporated by reference into, or a part of, this Amendment or the Original Filing.
The Board of Directors reviews the Nasdaq Stock
Market LLC (“Nasdaq”) listing standards definition of independence for Audit Committee members on an annual basis and has
determined that all current members of our Audit Committee are independent (as independence is currently defined in Rule 5605(c)(2)(A)(i)
and (ii) of the Nasdaq listing standards).
The Board of Directors has also determined that
Mr. Logal qualifies as an “audit committee financial expert,” as defined in applicable SEC rules. The Board made a qualitative
assessment of Mr. Logal’s level of knowledge and experience based on a number of factors, including his formal education and experience
as a chief financial officer.
Director Nominations
No material changes have been made to the procedures by which stockholders
may recommend nominees to our Board.
Code of Business Conduct and Ethics
We have adopted the Xenetic Biosciences, Inc.
Code of Business Conduct and Ethics that applies to all of our employees, officers and directors, including our principal executive officer,
principal financial officer and principal accounting officer. The Code of Business Conduct and Ethics is available on our website, www.xeneticbio.com,
under “Investors” at “Corporate Governance.” If we make any substantive amendments to the Code of Business Conduct
and Ethics or grant any waiver from a provision of the Code of Business Conduct and Ethics to any executive officer or director, we intend
to promptly disclose the nature of the amendment or waiver on our website, to the extent required by the applicable rules and exchange
requirements. The information on our website is not incorporated by reference into, or a part of, this Amendment or the Original Filing.
ITEM 11 – EXECUTIVE COMPENSATION
Summary Compensation Table – 2020 - 2021
The following table sets forth, for the years
ended December 31, 2021 and 2020, the compensation information for Jeffrey Eisenberg, our Chief Executive Officer, Dr. Curtis Lockshin,
our Chief Scientific Officer, and James Parslow, our Chief Financial Officer. We refer to Messrs. Eisenberg, Lockshin, and Parslow herein,
collectively, as our “named executive officers.”
| Name and Principal Position |
|
|
Year |
|
|
Salary
($) |
|
|
|
|
Option
Awards (1)
($) |
|
|
Non-Equity Incentive Plan Compensation (2) ($) |
|
|
All Other
Compensation
($) |
|
|
Total
($) |
|
| Jeffrey F. Eisenberg, |
|
|
2021 |
|
|
$ |
367,500 |
|
|
|
|
$ |
234,052 |
|
|
$ |
119,438 |
|
|
$ |
29,241 |
(3) |
|
$ |
750,231 |
|
| Chief Executive Officer |
|
|
2020 |
|
|
$ |
350,000 |
|
|
|
|
$ |
– |
|
|
$ |
68,250 |
|
|
$ |
28,107 |
|
|
$ |
446,357 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| James Parslow, |
|
|
2021 |
|
|
$ |
299,250 |
|
|
|
|
$ |
117,026 |
|
|
$ |
68,079 |
|
|
$ |
36,454 |
(4) |
|
$ |
520,809 |
|
| Chief Financial Officer |
|
|
2020 |
|
|
$ |
285,000 |
|
|
|
|
$ |
– |
|
|
$ |
38,900 |
|
|
$ |
35,512 |
|
|
$ |
359,412 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Dr. Curtis Lockshin, |
|
|
2021 |
|
|
$ |
299,250 |
|
|
|
|
$ |
117,026 |
|
|
$ |
68,079 |
|
|
$ |
23,965 |
(5) |
|
$ |
508,320 |
|
| Chief Scientific Officer |
|
|
2020 |
|
|
$ |
285,000 |
|
|
|
|
$ |
– |
|
|
$ |
38,900 |
|
|
$ |
23,303 |
|
|
$ |
347,203 |
|
_______________
| (1) |
The amounts represent the aggregate grant date fair value of stock options granted in the applicable fiscal year, computed in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 718, excluding the effect of estimated forfeitures. Assumptions used in the calculation of this amount are set forth in Note 11 to our audited consolidated financial statements included in Item 8 of the Original Filing. Mr. Eisenberg, Mr. Parslow, and Dr. Lockshin were granted options to purchase 100,000 shares, 50,000 shares and 50,000 shares of common stock, respectively, during 2021. |
| (2) |
Represents incentive compensation payments earned. |
| (3) |
Includes $17,641 for health and welfare plans and $11,600 employer matching 401(k) contribution. |
| (4) |
Includes $24,854 for health and welfare plans and $11,600 employer matching 401(k) contribution. |
| (5) |
Includes $22,540 for health and welfare plans and $1,425 employer matching 401(k) contribution. |
401(k) Plan
The Company provides all full-time employees,
including our named executive officers, with the opportunity to participate in a defined contribution 401(k) plan. Our 401(k) plan is
intended to qualify under Section 401 of the Internal Revenue Code so that employee pre-tax contributions and income earned on such contributions
are not taxable to employees until withdrawn. Employees may elect to defer up to 80 percent of their eligible compensation (not to exceed
the statutorily prescribed annual limit) in the form of elective deferral contributions to our 401(k) plan. Our 401(k) plan also has a
“catch-up contribution” feature for employees aged 50 or older (including those who qualify as “highly compensated”
employees) who can defer amounts over the statutory limit that applies to all other employees. The 401(k) plan matches 100% of employee
contributions up to a maximum of 4% of employees’ salary. Matching contributions are fully vested at the time of contribution.
Outstanding Equity Awards at Fiscal Year-End
– 2021
The following table sets forth certain information
with respect to outstanding equity awards held by our named executive officers at December 31, 2021.
| |
|
|
Option Awards |
|
|
Stock Awards |
|
| Name |
|
|
Number of
Securities Underlying Unexercised Options, Exercisable |
|
|
Number
of Securities Underlying Unexercised Options, Unexercisable |
|
|
|
Option
Exercise Price (4) |
|
|
Option
Expiration Date |
|
|
Number
of Shares or Units of Stock That Have Not Vested |
|
|
Market Value
of Shares or Units of Stock That Have Not Vested ($) |
|
| Jeffrey F. Eisenberg |
|
|
19,168 |
(1) |
|
– |
|
|
|
40.92 |
|
|
12/2/2026 |
|
|
– |
|
|
– |
|
| |
|
|
10,417 |
(2) |
|
– |
|
|
|
25.32 |
|
|
10/26/2027 |
|
|
– |
|
|
– |
|
| |
|
|
153,33 |
(3) |
|
76,667 |
(3) |
|
|
1.31 |
|
|
12/4/2029 |
|
|
– |
|
|
– |
|
| |
|
|
– |
(4) |
|
100,000 |
(4) |
|
|
2.60 |
|
|
3/18/2031 |
|
|
– |
|
|
– |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| James Parslow |
|
|
14,584 |
(5) |
|
– |
|
|
|
54.84 |
|
|
4/3/2027 |
|
|
– |
|
|
– |
|
| |
|
|
53,333 |
(6) |
|
26,667 |
(6) |
|
|
1.31 |
|
|
12/4/2029 |
|
|
– |
|
|
– |
|
| |
|
|
– |
(7) |
|
50,000 |
(7) |
|
|
2.60 |
|
|
3/18/2031 |
|
|
– |
|
|
– |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Curtis Lockshin |
|
|
1,213 |
(8) |
|
– |
|
|
|
55.08 |
|
|
12/31/2024 |
|
|
– |
|
|
– |
|
| |
|
|
1,263 |
(9) |
|
– |
|
|
|
55.08 |
|
|
9/6/2025 |
|
|
– |
|
|
– |
|
| |
|
|
14,584 |
(10) |
|
– |
|
|
|
51.60 |
|
|
1/1/2027 |
|
|
– |
|
|
– |
|
| |
|
|
60,000 |
(11) |
|
30,000 |
(11) |
|
|
1.31 |
|
|
12/4/2029 |
|
|
|
|
|
|
|
| |
|
|
– |
(12) |
|
50,000 |
(12) |
|
|
2.60 |
|
|
3/18/2031 |
|
|
– |
|
|
– |
|
________________
| (1) |
392 shares vested 100% on the date of grant. Remainder vested one-third upon the first anniversary of the grant date, one-third of the remaining amount upon the second anniversary of the grant date and one-third of the remaining amount on the third anniversary of the grant date. |
| (2) |
Vested one-third upon the first anniversary of the grant date, one-third upon the second anniversary of the grant date and one-third upon the third anniversary of the grant date. |
| (3) |
Vests one-third upon the first anniversary of the grant date, one-third upon the second anniversary of the grant date and one-third upon the third anniversary of the grant date. |
| (4) |
Vests one-third upon the first anniversary of the grant date and the remaining two-thirds over eight equal quarterly installments commencing June 18, 2022 and ending on March 18, 2024. |
| (5) |
Vested one-third upon the first anniversary of the grant date, one-third upon the second anniversary of the grant date and one-third upon the third anniversary of the grant date. |
| (6) |
Vests one-third upon the first anniversary of the grant date, one-third upon the second anniversary of the grant date and one-third upon the third anniversary of the grant date. |
| (7) |
Vests one-third upon the first anniversary of the grant date and the remaining two-thirds over eight equal quarterly installments commencing June 18, 2022 and ending on March 18, 2024. |
| (8) |
Vested one-third upon March 3, 2015, one-third upon March 15, 2016 and one-third upon March 15, 2017. |
| (9) |
Vested one-third upon the first anniversary of the grant date, one-third upon the second anniversary of the grant date and one-third upon the third anniversary of the grant date. |
| (10) |
Vested one-third upon the first anniversary of the grant date, one-third upon the second anniversary of the grant date and one-third upon the third anniversary of the grant date. |
| (11) |
Vests one-third upon the first anniversary of the grant date, one-third upon the second anniversary of the grant date and one-third upon the third anniversary of the grant date. |
| (12) |
Vests one-third upon the first anniversary of the grant date and the remaining two-thirds over eight equal quarterly installments commencing June 18, 2022 and ending on March 18, 2024. |
Employment Agreements with our Named Executive
Officers
Employment Agreement with Mr. Eisenberg
We entered into an employment agreement with Mr.
Eisenberg effective as of December 1, 2016 for him to serve as Chief Operating Officer (the “Original Agreement”). The Original
Agreement was for an initial term of one year, and automatically renewed for successive one year periods unless either party gave notice
to the other no later than 90 days prior to the expiration of the then-applicable term; provided, however, that we could terminate the
Original Agreement at any time. Mr. Eisenberg’s annual salary under the Original Agreement was $300,000, and was subject to annual
review and upward adjustment only by the Compensation Committee of the Board. Mr. Eisenberg was also eligible to receive a bonus equal
to 35% of his annual salary based on the attainment of certain individual and/or Company goals established by the Board or a committee
thereto. Mr. Eisenberg was also eligible to participate in our employee benefit, welfare and other plans, as may be maintained by us from
time to time, on a basis no less favorable than those provided to other similarly situated executives of the Company. Mr. Eisenberg was
also subject to certain customary confidentiality, non-solicitation and non-competition provisions.
Under the Original Agreement, if Mr. Eisenberg’s
employment was terminated by us without “Cause” (as defined in the Original Agreement) or if he resigned for “Good Reason”
(as defined in the Original Agreement), he was entitled to receive (i) six months of his then current base salary, paid over time in accordance
with our payroll practices then in effect if he had been employed by us for six months or less, (ii) 12 months of his then current base
salary, paid over time in accordance with our payroll practices then in effect if he had been employed by us for more than six months,
(iii) a pro-rated annual bonus and (iv) payment of premiums for continued health benefits under COBRA for up to six months.
On October 26, 2017, the Company amended and restated
the Original Agreement in order to employ Mr. Eisenberg as the Chief Executive Officer of the Company, effective as of the same date (the
“Amended Agreement”). The terms of the Amended Agreement were substantially similar to the terms of the Original Agreement,
except that Mr. Eisenberg is now eligible to receive a bonus equal to 50% of his annual salary based on the attainment of certain individual
and/or Company goals established by the Board or a committee thereto, and if Mr. Eisenberg’s employment is terminated by us without
“Cause” (as defined in the Amended Agreement) or if he resigns for “Good Reason” (as defined in the Amended Agreement),
he will be entitled to receive (i) within thirty days following the date of termination, an amount equal to one times his then current
base salary, (ii) a pro-rated annual bonus and (iii) payment of premiums for continued health benefits under COBRA for up to twelve months.
Employment Agreement with Mr. Parslow
We entered into an employment agreement with
Mr. Parslow effective as of April 3, 2017 (the “Parslow Employment Agreement”). The Parslow Employment Agreement does
not provide for a specified term of employment and Mr. Parslow’s employment will be on an at-will basis. Mr. Parslow
received an initial annual base salary of $265,000 and is eligible to earn an annual cash incentive bonus, which is set at a target
aggregate bonus amount of 35% of Mr. Parslow’s base salary, upon achievement of certain individual and/or Company performance
goals set by the Compensation Committee. Mr. Parslow is also eligible to participate in the Company’s employee benefit,
welfare and other plans, as may be maintained by the Company from time to time, on a basis no less favorable than those provided to
other similarly-situated executives of the Company. Mr. Parslow is also subject to certain customary confidentiality,
non-solicitation and non-competition provisions.
If Mr. Parslow’s employment is terminated
by the Company without “cause” (as defined in the Parslow Employment Agreement) or Mr. Parslow resigns for “good reason”
(as defined in the Parslow Employment Agreement), he will be entitled to receive (i) one year of his then current base salary, paid over
time in accordance with the Company’s payroll practices then in effect and (ii) payment of premiums for continued health benefits
under COBRA for up to one year.
Employment Agreement with Dr. Lockshin
We entered into an employment agreement with Dr.
Lockshin effective as of January 1, 2017 (the “Lockshin Employment Agreement”). The Lockshin Employment Agreement does not
provide for a specified term of employment and Dr. Lockshin’s employment will be on an at-will basis. Dr. Lockshin received
an initial annual base salary of $250,000 and is eligible to earn an annual performance-based cash incentive bonus, which is set at a
target aggregate bonus amount of 35% of Dr. Lockshin’s base salary, upon achievement of certain individual and/or Company performance
goals established by the Board or a committee thereto. Dr. Lockshin is also eligible to participate in the Company’s employee benefit,
welfare and other plans, as may be maintained by the Company from time to time, on a basis no less favorable than those provided to other
similarly-situated executives of the Company. Dr. Lockshin is also subject to certain customary confidentiality, non-solicitation and
non-competition provisions.
If Dr. Lockshin’s employment is terminated
by the Company without “Cause” (as defined in the Lockshin Employment Agreement) or Dr. Lockshin terminates his employment
for “Good Reason” (as defined in the Lockshin Employment Agreement) and Dr. Lockshin executes and does not revoke a general
release of claims against the Company, then he will be entitled to receive (i) one year of his then current base salary, paid over time
in accordance with the Company’s payroll practices then in effect and (ii) payment of premiums for continued health benefits under
COBRA for up to twelve months.
Potential Payments Upon Termination or Change
of Control
Our named executive officers may be entitled to
payments upon termination or change of control. The details of such payments are included in the description of their employment agreements
above.
Director Compensation
Each of our non-employee, independent directors
is currently entitled to receive an annual retainer of $50,000, payable in equal quarterly installments, an option to acquire 25,000 shares
of the Company’s common stock upon initial appointment to the Board, and an additional option to acquire 25,000 shares each year
thereafter on the date of the Company’s annual meeting of stockholders. All members of our board are reimbursed for their usual
and customary expenses incurred in connection with their service on the Board, including out-of-pocket expenses, transportation, and airfare
on the Company’s business.
Director Compensation Table
As an employee director during fiscal year 2021,
Mr. Eisenberg did not receive any compensation for his Board service during the last completed year. The following table sets forth information
for the year ended December 31, 2021 regarding the compensation awarded to, earned by or paid to our non-employee directors:
| Name |
|
Fees Earned
or Paid
in Cash
($) |
|
|
Stock
Awards
($) |
|
|
Option
Awards(1)(2)
($) |
|
|
All Other
Compensation
($) |
|
|
Total
($) |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Dr. Grigory Borisenko(3) |
|
$ |
– |
|
|
|
– |
|
|
$ |
– |
|
|
|
– |
|
|
$ |
– |
|
| Dr. James Callaway |
|
$ |
50,000 |
|
|
|
– |
|
|
$ |
31,546 |
|
|
|
– |
|
|
$ |
81,546 |
|
| Firdaus Jal Dastoor |
|
$ |
50,000 |
|
|
|
– |
|
|
$ |
31,546 |
|
|
|
– |
|
|
$ |
81,546 |
|
| Dr. Dmitry Genkin(4) |
|
$ |
– |
|
|
|
– |
|
|
$ |
– |
|
|
|
– |
|
|
$ |
– |
|
| Dr. Roger Kornberg |
|
$ |
50,000 |
|
|
|
– |
|
|
$ |
31,546 |
|
|
|
– |
|
|
$ |
81,546 |
|
| Mr. Adam Logal |
|
$ |
50,000 |
|
|
|
– |
|
|
$ |
31,546 |
|
|
|
– |
|
|
$ |
81,546 |
|
| Dr. Alexey Vinogradov |
|
$ |
50,000 |
|
|
|
– |
|
|
$ |
31,546 |
|
|
|
– |
|
|
$ |
81,546 |
|
__________
| (1) |
The amounts represent the aggregate grant date fair value of stock options granted during 2021, computed in accordance with FASB ASC Topic 718. For a discussion of the assumptions and methodology used to calculate the value of our stock options, see Note 11 to our audited financial statements included in Item 8 of the Original Filing. |
| (2) |
The table below shows the aggregate number of option awards outstanding for each of our non-employee directors as of December 31, 2021: |
| Name |
Option Awards (#) |
| Dr. James Callaway |
79,168 |
| Firdaus Jal Dastoor |
82,956 |
| Dr. Roger Kornberg |
81,252 |
| Adam Logal |
79,168 |
| Dr. Alexey Vinogradov |
75,000 |
(3) Dr. Borisenko has opted not to receive any compensation
for his Board service during 2021.
(4) Dr. Genkin resigned
from the Board effective July 15, 2021.
See “Certain Related Person Transactions”
below for compensation arrangements involving specific members of the Board.
ITEM 12 – SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The following table and footnotes set forth certain
information known to us regarding beneficial ownership of our capital stock as of March 31, 2022 for:
| |
· |
each person known by us to be the beneficial owner of more than 5% of our capital stock; |
| |
· |
our named executive officers; |
| |
· |
each of our directors; and |
| |
· |
all executive officers and directors as a group. |
The number of shares beneficially owned by each
entity, person, director or executive officer is determined in accordance with the rules of the SEC, and the information is not necessarily
indicative of beneficial ownership for any other purpose. Under such rules, beneficial ownership includes any shares over which the individual
has sole or shared voting power or investment power as well as any shares that the individual has the right to acquire within 60 days
through the exercise of any stock option, warrants or other rights. Except as otherwise indicated, and subject to applicable community
property laws, the persons named in the table have sole voting and investment power with respect to all shares of common stock held by
that person or entity.
The percentage of shares beneficially owned is
computed on the basis of 13,441,296 shares of our common stock outstanding as of March 31, 2022, on an as-converted basis. Shares of our
common stock that a person has the right to acquire within 60 days after March 31, 2022 are deemed outstanding for purposes of computing
the percentage ownership of the person or entity holding such rights, but are not deemed outstanding for purposes of computing the percentage
ownership of any other person, except with respect to the percentage ownership of all directors and executive officers as a group. Unless
otherwise indicated below, the address for each beneficial owner listed is c/o Xenetic Biosciences, Inc., at 40 Speen Street, Suite 102,
Framingham, Massachusetts 01701.
| Name of Beneficial Owner |
Number of Shares
Beneficially Owned(1) |
|
Percentage of Class
Beneficially Owned |
| Fiscal Year 2021 Named Executive Officers and Directors |
|
|
|
| Jeffrey Eisenberg |
220,419 |
(2) |
1.6% |
| James Parslow |
84,584 |
(3) |
* |
| Dr. Curtis Lockshin |
93,727 |
(4) |
* |
| Dr. Grigory Borisenko(5) |
– |
|
* |
| Dr. James Callaway |
54,168 |
(6) |
* |
| Firdaus Jal Dastoor |
57,956 |
(7) |
* |
| Dr. Roger Kornberg |
56,252 |
(8) |
* |
| Adam Logal |
54,168 |
(9) |
* |
| Alexey Vinogradov |
236,781 |
(10) |
1.8% |
| All executive officers and directors as a group (9 persons) |
858,055 |
(11) |
6.1% |
| 5% Current Stockholders |
|
|
|
| PJSC Pharmsynthez(5) |
898,366 |
(12) |
6.5% |
_______________________
| * | Represents beneficial ownership of less than one percent (1%). |
| (1) | Unless otherwise indicated below, this table is based upon corporate
records, information supplied by officers, directors and, in the case of principal stockholders, information provided by our transfer
agent. |
| (2) | The total beneficial ownership consists of 216,252 shares issuable
upon exercise of options that are exercisable within 60 days of March 31, 2022 and 4,167 of vested restricted stock units. |
| (3) | The total beneficial ownership consists of 84,584 shares issuable
upon exercise of options that are exercisable within 60 days of March 31, 2022. |
| (4) | The total beneficial ownership consists of 93,727 shares issuable
upon exercise of options that are exercisable within 60 days of March 31, 2022. |
| (5) | Dr. Borisenko was employed by Rusnano LLC, an entity affiliated
with Pharmsynthez, during 2021. |
| (6) | The total beneficial ownership consists of 54,168 shares issuable
upon exercise of options that are exercisable within 60 days of March 31, 2022. |
| (7) | The total beneficial ownership consists of 57,956 shares issuable
upon exercise of options that are exercisable within 60 days of March 31, 2022. |
| (8) | The total beneficial ownership consists of 56,252 shares issuable
upon exercise of options that are exercisable within 60 days of March 31, 2022. |
| (9) | The total beneficial ownership consists of 54,168 shares issuable
upon exercise of options that are exercisable within 60 days of March 31, 2022. |
| (10) | The total beneficial ownership consists of 186,781 shares of
common stock owned directly and 50,000 shares issuable upon exercise of options that are exercisable within 60 days of March 31, 2022. |
| (11) | The total beneficial ownership consists of 186,781 shares of
common stock owned directly, 667,107 shares issuable upon exercise of options that are exercisable within 60 days of March 31, 2022 and
4,167 shares of restricted stock units that are vested. |
| (12) | The total beneficial ownership consists of 447,122 shares of
common stock owned directly or indirectly through SynBio and 451,244 shares issuable upon the conversion of Series B Preferred Stock
that are exercisable within 60 days of March 31, 2022. SynBio is a wholly-owned subsidiary of Pharmsynthez. Pharmsynthez may be deemed
to have shared voting and shared dispositive power with respect to all the shares owned by SynBio and therefore, Pharmsynthez may be
deemed to be the beneficial owner of such shares. The address of PJSC Pharmsynthez is 9 Korpusnaya Street, letter A, 1st Floor,
St. Petersburg, 197110, Russia. |
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires our directors and executive
officers, and persons who own more than ten percent of a registered class of our equity securities, to file with the SEC initial reports
of ownership and reports of changes in ownership of our ordinary shares and other equity securities. Such persons are required by SEC
regulations to furnish us with copies of all Section 16(a) forms they file.
To our knowledge, based solely on a review of the copies of such reports
furnished to us and written representations that no other reports were required, during the fiscal year ended December 31, 2021, we believe
that all Section 16(a) filing requirements applicable to our executive officers, directors and greater than 10% beneficial owners were
complied with.
Equity Compensation Plan Information
The following table sets forth information as
of December 31, 2021 with respect to compensation plans under which equity securities are authorized for issuance:
| Plan Category |
|
Number of
Securities to be
Issued upon
Exercise of
Outstanding
Options,
Warrants and
Rights (a) |
|
|
Weighted
Average Exercise
Price of
Outstanding
Options,
Warrants and
Rights (b) |
|
|
Number of
Securities
Remaining
Available for
Future Issuance
Under Equity
Compensation
Plans (excluding securities reflected in column (a)) (c) |
|
| Equity compensation plans approved by security holders |
|
|
1,098,380 |
(1) |
|
$ |
5.72 |
|
|
|
1,427,257 |
|
| Equity compensation plans not approved by security holders |
|
|
14,584 |
(2) |
|
|
54.84 |
|
|
|
– |
|
| Total |
|
|
1,112,964 |
|
|
$ |
6.36 |
|
|
|
1,427,257 |
|
____________________
| (1) |
Consists of 1,098,380 shares of our common stock to be issued upon the exercise of outstanding stock options and restricted stock units under the Xenetic Biosciences, Inc. Amended and Restated Equity Incentive Plan (“Equity Plan.”) |
| (2) |
Represents inducement award granted to Mr. Parslow in 2017 in connection with his employment with the Company that was not covered under the Equity Plan in accordance with Nasdaq Listing Rule 5635(c)(4). The option has a ten-year term and is fully vested. |
ITEM 13 – CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS, AND DIRECTOR INDEPENDENCE
During the fiscal years ended December 31, 2021
and December 31, 2020, there was not, nor is there any currently proposed transaction or series of similar transactions to which Xenetic
was or is to be a party in which the amount involved exceeded or exceeds the lesser of $120,000 or 1% of the average of our total assets
at year end for the last two completed fiscal years and in which any executive officer, director or holder of more than 5% of any class
of voting securities of Xenetic and members of that person’s immediate family had, has or will have a direct or indirect material
interest, other than as set forth in “Executive Compensation” and “Director Compensation Table” above and as disclosed
below.
Policy Regarding Related Party Transactions
Our Board adopted an amended written related party
transaction policy on August 27, 2020 to set forth the policies and procedures for the review and approval or ratification of related
party transactions by our audit committee, which replaced the policy previously adopted in November 1, 2016. Any transaction between the
Company and its officers, directors, principal stockholders or affiliates is required to be on terms no less favorable to us than could
be reasonably obtained in arms-length transactions with independent third-parties. Transactions described in this section that occurred
prior to November 1, 2016 were not covered by the Company’s related party transaction policy.
Certain Related Person Transactions
PJSC Pharmsynthez
Pharmsynthez directly, and indirectly through
its wholly-owned subsidiary SynBio LLC (“SynBio”), had a share ownership in the Company of approximately 3% of the total outstanding
common stock at March 31, 2022. In addition to its common stock ownership, Pharmsynthez holds approximately 1.5 million shares of our
outstanding Series B Preferred Stock at March 31, 2022 and all of our outstanding Series A Preferred stock. In addition, one of our former
directors, Dr. Dmitry Genkin, is the Executive Chairman of the board of directors of Pharmsynthez, and, prior to March 31, 2022,
Dr. Grigory Borisenko, one of our current directors, was employed as the Investment Director of Rusnano LLC, an entity affiliated with
Pharmsynthez. Additionally, one of our executive officers, Dr. Curtis Lockshin, is an officer of a wholly-owned subsidiary of Pharmsynthez.
In November 2009, the Company entered into a collaborative research and development license agreement with Pharmsynthez (the “Pharmsynthez
Arrangement”) pursuant to which the Company granted an exclusive license to Pharmsynthez to develop, commercialize and market six
product candidates based on the Company’s PolyXen and ImuXen technology in certain territories. In exchange, Pharmsynthez granted
an exclusive license to the Company to use any preclinical and clinical data developed by Pharmsynthez, within the scope of the Pharmsynthez
Arrangement, and to engage in further research, development and commercialization of drug candidates outside of certain territories at
the Company’s own expense. There are no milestones or other research related payments provided for under the Pharmsynthez Arrangement
other than royalties.
During the third quarter of 2019, the Company
entered into a sponsored research agreement with Pharmsynthez (the “SRA”) related to experiments identified by the Company
to support its efforts for initial tech transfer of the XCART methods to a future academic collaborator. Under the agreement, the Company
made a $350,000 payment to Pharmsynthez during the third quarter of 2019, which was refundable on a pro rata basis if the project is terminated
prematurely as a result of Pharmsynthez failing to perform the work. On June 12, 2020, the Company and Pharmsynthez entered into a Master
Services Agreement (“MSA”) to advance the development of the Company’s XCART technology for B-cell malignancies. The
MSA terminated and superseded the SRA.
Under the MSA, Pharmsynthez agreed to
provide services pursuant to work orders agreed upon by the parties from time to time, which services include, but are not limited
to, acting as the Company’s primary contract research organization to assist in managing collaborations with multiple academic
institutions in Russia and Belarus. The Company is required to pay reasonable fees, expenses and pass-through costs incurred by
Pharmsynthez in providing the services in accordance with a budget and payment terms set forth in each work order. Additionally, in
the event that a work order provides for milestone payments, the Company is required to make such payments to Pharmsynthez, or third
party service providers designated by Pharmsynthez, in accordance with the terms set forth in the work order, which milestone
payments may be made, at the sole discretion of the Company, in cash or shares of the Company’s common stock.
The Company and Pharmsynthez executed
a work order on June 12, 2020 (the “Work Order”) under the MSA pursuant to which Pharmsynthez agreed to conduct a Stage 1
study of the Company’s XCART technology under the research program as set forth in the Work Order. The activities to be performed
under the Work Order were expected to take approximately 20 months unless earlier terminated in accordance with the MSA. Under the terms
of the Work Order, the Company paid Pharmsynthez $51,000 as an initial payment for trial startup costs, which amount was credited against
the amounts paid under the SRA. The Work Order provides for additional pass-through costs to be invoiced by Pharmsynthez upon execution
of contracts with third party sites, which were to be further credited against the SRA. Through December 31, 2021, all costs incurred
under the MSA were credited against the amounts paid under the SRA. Additionally, the Work Order provided for milestone payments of up
to an aggregate of $1,050,000, or, in the Company’s sole discretion, up to an aggregate of 1,000,000 shares of the Company’s
common stock, to be paid or issued, as applicable, by the Company upon achievement of milestones associated with completion of early stages
of the research program as set forth in the Work Order.
On October 12, 2021, the Company entered into
Amendment Number One to the MSA (the “MSA Amendment”) with Pharmsynthez to, among other things, terminate all work orders
under the MSA. As a result, no further services were to be performed under the Work Order and any additional services will be covered
by new work orders. In exchange, the Company entered into a new work order (the “Second Work Order”) simultaneously with the
MSA Amendment. Under the terms of the Second Work Order, Pharmsynthez shall provide certain enumerated services to support the Company’s
development of its XCART technology upon the written request of the Company, which work may be requested by the Company from time to time.
Pursuant to the MSA Amendment and Second Work
Order, upon entry into the Second Work Order, the Company made a one-time $40,000 payment to Pharmsynthez, of which $21,000 was a one-time
payment in full for all money and other compensation owed by the Company under the Work Order, and the remaining $19,000 will be creditable
against any out of pocket costs and expenses incurred by Pharmsynthez on behalf of the Company pursuant to any new work orders initiated
after the effective date of the MSA Amendment, including the Second Work Order.
During the fourth quarter
of 2019, the Company entered into a loan agreement with Pharmsynthez (the “Pharmsynthez Loan”), pursuant to which the Company
advanced Pharmsynthez an aggregate principal amount of up to $500,000 to be used for the development of a specific product under the Co-Development
Agreement. The Pharmsynthez Loan had a term of 15-months and accrued interest at a rate of 10% per annum. The Pharmsynthez Loan is guaranteed
by all of the operating subsidiaries of Pharmsynthez, including SynBio and AS Kevelt, and is secured by all of the common and preferred
stock of the Company owned by Pharmsynthez and SynBio. The Company recognized approximately $48,000 and $51,000 of interest income related
to the Pharmsynthez Loan during the twelve-months ended December 31, 2021 and 2020, respectively.
Effective January 23, 2021, the Company entered
into a First Amendment to Loan Agreement and Other Loan Documents with Pharmsynthez, Kevelt and SynBio (the “Pharmsynthez Loan Extension”)
to modify the repayment terms and extend the maturity of the Pharmsynthez Loan to January 2022. The terms of the Pharmsynthez Loan Extension
called for two (2) equal monthly principal payments of $25,000 in each of January 23, 2021 and February 28, 2021 and the payment of all
outstanding accrued interest in six (6) equal installments from January 31, 2021 through June 30, 2021. In addition, the Pharmsynthez
Loan Extension required monthly interest payments and the repayment of the remaining principal amount in six (6) equal monthly installments
from August 2021 through January 2022.
Effective August 31, 2021, the Company entered
into a Second Amendment to Loan Agreement and Other Loan Documents with Pharmsynthez, Kevelt and SynBio (the “Second Pharmsynthez
Loan Extension”) to modify the repayment terms and extend the maturity of the Pharmsynthez Loan to July 2022. The terms of the Second
Pharmsynthez Loan Extension called for an upfront fee of $12,500 and two (2) equal monthly principal payments of $25,000 on September
30, 2021 and October 31, 2021. In addition, the Second Pharmsynthez Loan Extension requires monthly interest payments and the repayment
of the remaining principal amount in six (6) equal monthly installments from February 2022 through July 2022. All other terms of the Pharmsynthez
Loan, as amended, remain in effect. All required payments under the Second Pharmsynthez Loan Extension were made through January 31, 2022.
In February 2022, the Company received a request from Pharmsynthez to further extend the principal repayments until September 2022. The
Company agreed to extend the maturity date, although final terms of such extension are under negotiation. All other terms of the Pharmsynthez
Loan, as amended, are expected to remain in effect including the continued payment of interest on a monthly basis.
SynBio LLC
In August 2011, SynBio, a wholly-owned subsidiary
of Pharmsynthez, and the Company entered into a stock subscription and collaborative development agreement (the “Co-Development
Agreement”). The Company granted an exclusive license to SynBio to develop, market and commercialize certain drug candidates utilizing
molecule(s) based on SynBio’s technology and the Company’s proprietary technologies (PolyXen, OncoHist and ImuXen) in Russia
and the Commonwealth of Independent States (“CIS”), collectively referred to herein as the SynBio Market. In return, SynBio
granted an exclusive license to the Company to use the preclinical and clinical data generated by SynBio in certain agreed products and
engage in the development of commercial candidates in any territory outside of the SynBio Market.
SynBio and the Company are each responsible for
funding and conducting their own research and clinical development activities. There are no milestone or other research-related payments
provided for under the Co-Development Agreement other than fees for the supply of each company’s respective research supplies based
on their technology, which, when provided, are due to mutual convenience and not representative of an ongoing or recurring obligation
to supply research supplies. Serum Institute of India Limited (“Serum Institute”) has agreed to directly provide the research
supplies to SynBio, where the Company is not liable for any failure to supply the research supplies as a result of any act or fault of
Serum Institute. Upon successful commercialization of any resultant products, the Company is entitled to receive a 10% royalty on sales
in certain territories and pay royalties to SynBio for sales outside those certain territories subject to the terms of the Co-Development
Agreement. Effective December 20, 2021, SynBio assigned the Co-Development Agreement to Pharmsynthez.
Through December 31, 2021, Pharmsynthez continued
to engage in research and development activities with no resultant commercial products.
In December 2020, Pharmsynthez reported positive data from its Phase 3 clinical study of Epolong, a treatment for anemia in patients with
chronic kidney disease leveraging the Company’s PolyXen technology. In February 2021, Pharmsynthez reported in a press release that
it had started the registration phase of Epolong by filing a registration dossier to obtain approval in Russia. Pharmsynthez had reported
in its press release that it expected that the Russian stage of registration activities would be completed in 2021 and that it would be
able to start production of the product as early as the first quarter of 2022. Pharmsynthez has not informed the Company that the registration
process has been completed or that production of the product has commenced. The Company did not recognize revenue in connection with the
Co-Development Agreement during the years ended December 31, 2021 and 2020.
Serum Institute
Serum Institute had a share ownership of less
than 1% of the Company’s total outstanding common stock as of March 31, 2022. One of the Company’s directors, Firdaus Jal
Dastoor, is currently a Group Director in charge of Finance and Corporate Affairs and Company Secretary of Serum Institute. In August
2011, the Company entered into a collaborative research and development agreement with Serum Institute providing Serum Institute an exclusive
license to use our PolyXen technology to research and develop one potential commercial product, Polysialylated Erythropoietin (“PSA-EPO”).
Serum Institute is responsible for conducting all preclinical and clinical trials required to achieve regulatory approvals within the
certain predetermined territories at Serum Institute’s own expense. Royalty payments are payable by Serum Institute to the Company
for net sales to certain customers in the Serum Institute sales territory. Royalty payments are payable by the Company to Serum Institute
for net sales received by the Company over the term of the license. There are no milestone or other research-related payments due under
the collaborative arrangement.
Through December 31, 2021, Serum Institute continued
to engage in research and development activities with no resultant commercial products. No royalty revenue or expense was recognized by
the Company related to the Serum Institute arrangement during the years ended December 31, 2021 and 2020.
Director Independence
As required under the Nasdaq listing rules, a
majority of the members of a listed company’s board of directors must qualify as “independent,” as affirmatively determined
by the Board of Directors. The Board consults with advisors to ensure that the Board’s determinations are consistent with relevant
securities and other laws and regulations regarding the definition of “independent,” including those set forth in pertinent
listing rules of Nasdaq, as in effect from time to time.
Consistent with these considerations, after review
of all relevant identified transactions or relationships between each director, or any of his or her family members, and the Company,
its senior management and its independent auditors, the Board affirmatively determined that the following directors were independent directors
within the meaning of the applicable Nasdaq listing standards for the period during which they served as a member of the Board during
fiscal year 2021: Dr. Callaway, Mr. Dastoor, Dr. Kornberg, Mr. Logal, Mr. Vinogradov and Dr. Borisenko. In making the independence determinations,
the Board considered a number of factors and relationships, including without limitation Dr. Borisenko’s employment as the Investment
Director of Rusnano LLC, an entity affiliated with Pharmsynthez, at the time of the Board’s independence determination.
During fiscal year 2021, all members of our Audit
Committee, Nominating and Corporate Governance Committee, and Compensation Committee were independent (as currently set forth in Rule
5605 of the Nasdaq listing rules).
ITEM
14 – PRINCIPAL ACCOUNTING FEES AND SERVICES
The following table represents aggregate fees
billed to the Company for the fiscal years ended December 31, 2021 and December 31, 2020, by Marcum LLP, the Company’s principal
accountant.
| | |
2021 | | |
2020 | |
| Audit Fees | |
$ | 160,340 | | |
$ | 168,896 | |
| Audit-Related Fees | |
| 52,298 | | |
| 8,910 | |
| Tax Fees | |
| – | | |
| – | |
| All Other Fees | |
| – | | |
| – | |
| | |
$ | 212,638 | | |
$ | 177,806 | |
Audit Fees
Audit fees include the total fees incurred in
connection with the audit of our annual consolidated financial statements for each of the years ended December 31, 2021 and 2020.
Audit-Related Fees
Audit related fees during the year ended December
31, 2021 include fees incurred in connection with our S-8 and S-3 registration statements filed throughout 2021, including comfort letters
and our At-The-Market filing. Audit related fees during the year ended December 31, 2020 include fees incurred in connection with our
Prospectus and S-8 filings in 2020.
Audit and Non-Audit Services Pre-Approval Policy
The Audit Committee pre-approves all audit and
non-audit accounting services provided by our independent, registered accounting firm. All audit and non-audit fee services described
above were pre-approved by the Audit Committee.
Pursuant to the Board of Directors’ policy,
to help ensure the independence of our independent registered public accounting firm, all auditing services and permitted non-audit services
(including the terms thereof) to be performed for us by our independent registered public accounting firm must be pre-approved by the
Audit Committee, subject to the de-minimus exceptions for non-audit services described in Section 10A(i)(1)(B) of the Exchange Act,
which are approved by the Audit Committee prior to the commencement of services.
Our Audit Committee approved and retained Marcum
LLP to audit our consolidated financial statements for 2021. Our Audit Committee reviewed all services provided by Marcum LLP in 2021
and concluded that the services provided were compatible with maintaining its independence.