Ani Pharmaceuticals Inc PRE 14A, filed Mar 31, 2025
Ani Pharmaceuticals Inc (ANIP)
PRE 14A
2025-03-31
For: 2024-12-31
View Original
Added on
October 15, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
_________________________
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
_________________________
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| o | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | ||||
o | Definitive Proxy Statement | ||||
| o | Definitive Additional Materials | ||||
| o | Soliciting Material Pursuant to §240.14a-12 | ||||
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ANI Pharmaceuticals, Inc.
210 Main Street West
Baudette, Minnesota 56623
(218) 634-3500
_____, 2025
Dear Fellow Stockholders:
ANI delivered exceptional results in 2024, reflecting the strength of our strategy and our focus on operational excellence. Our team delivered $614.4 million in total revenue for the year, an increase of 26% over 2023. Adjusted non-GAAP EBITDA1 was a record $156.0 million, up 17% year-over-year, and adjusted non-GAAP earnings per share1 was $5.20, an increase of 10% from 2023. We also significantly expanded the scope and scale of our Rare Disease business with the acquisition of Alimera Sciences in September, in keeping with our longer-term strategy to broaden our presence in the Rare Disease space.
These accomplishments would not have been possible without the dedication and hard work of our employees, for which I am very grateful. Our company remains well positioned for continued long-term success.
Rare Disease – Driving Current and Future Growth
Our lead Rare Disease asset, Purified Cortrophin® Gel (“Cortrophin Gel”), generated net sales of $198.1 million in 2024, representing year-over-year growth of 77% and a compound annual growth rate (CAGR) of 117% since launch in 2022. Our Rare Disease team drove accelerating demand across our core therapeutic areas of rheumatology, neurology, and nephrology, and our newer therapeutic areas of ophthalmology and pulmonology. Prescribing for acute gouty arthritis flares, for which Cortrophin Gel is the only approved adrenocorticotropic hormone (ACTH) therapy, continued to ramp and now represents approximately 15% of Cortrophin Gel use.
Our Rare Disease team continued to build awareness and drive expansion of the overall ACTH market, which grew by 27% to $684 million in 2024. Importantly, Cortrophin Gel remains on a strong multi-year growth trajectory. We believe the number of patients on ACTH therapy now is approximately half the level of patients on therapy when the category previously peaked in 2017, and we estimate that the addressable patient population for ACTH therapy could be many times larger than the previous high. We expanded our commercial team in early 2025 to help drive continued prescribing momentum, and our larger sales team has already contributed to growing the number of Cortrophin Gel prescribers.
As part of our commitment to investing in initiatives to improve patient and physician convenience, we developed a Cortrophin Gel prefilled syringe, which was approved by the U.S. Food and Drug Administration in February 2025 and we expect to launch in the second quarter. We’re also exploring other ideas to enhance convenience for patients starting on Cortrophin Gel and the health care providers who treat them, and look forward to sharing more details on these initiatives in the future.
With the acquisition of Alimera, we expanded our Rare Disease portfolio with two growing and durable ophthalmology products, ILUVIEN and YUTIQ, and expanded our sales force in ophthalmology, a key growth area for Cortrophin Gel. We believe there is significant room for growth for both ILUVIEN and YUTIQ given the novel, long-acting nature of the products and size of the addressable markets.
R&D and Operational Excellence Driving Growth in Generics; Brands an Important Contributor
Our Generics business performed exceptionally well in 2024, generating net sales of $301.0 million, an increase of 12% over 2023, driven by operational excellence and new product launches. 2024 was our third straight year with double-digit growth in Generics. We delivered 17 new product launches, including two with competitive generic therapy (CGT)
1 Adjusted non-GAAP EBITDA and adjusted non-GAAP diluted earnings per share are not calculated in accordance with generally accepted accounting principles in the United States (GAAP). See Appendix D to this Proxy Statement for the definition of these non-GAAP measures and reconciliation to the most comparable GAAP financial measure.
designation, and leveraged our U.S.-based manufacturing footprint to deliver over 1 billion doses to patients in the U.S. We are proud that we retained the number two ranking in CGT approvals in 2024.
Our Brands business (previously Established Brands) continued to address patient needs in 2024 with reliability of supply and a unique set of commercial capabilities. Our overall portfolio is strengthened by this high-gross margin business, which features low working capital requirements and strong cash flow generation.
Looking Ahead
The strong momentum in our business has continued in 2025. We expect Rare Disease to be our largest revenue growth driver in 2025 and beyond, driven by Cortrophin Gel. We anticipate continued adoption of Cortrophin Gel in the therapeutic areas of rheumatology, neurology, and nephrology, helped in part by our expanded commercial team, and strong growth in ophthalmology and for acute gouty arthritis flares. We also expect continued growth for the overall ACTH market. Our 2025 Cortrophin Gel sales guidance of $265 million - $274 million reflects year-over-year growth of 34% - 38%.
Completing the integration of Alimera and increasing supply security for ILUVIEN and YUTIQ is a near-term priority. We recently secured FDA approval to expand the ILUVIEN label to include YUTIQ’s indication of chronic non-infectious uveitis affecting the posterior segment of the eye (NIU-PS) and extended our partnership with our ILUVIEN contract manufacturer Siegfried for five years until 2029. We plan to begin marketing ILUVIEN for chronic NIU-PS later this year.
We expect another year of low double-digit growth for our Generics business in 2025, supported by our high-performing R&D engine, operational acumen, and U.S.-based manufacturing footprint. Our Brands business will continue addressing patient needs through reliability of supply and a unique set of commercial capabilities, strengthening the overall company portfolio with its high margins and strong free cash flow generation.
As we progress through 2025, I’m confident that ANI is well positioned to deliver another year of strong revenue growth and profitability while maintaining a steadfast commitment to our core values: Patient First, Teamwork, Innovation, Integrity & Compliance, Accountability & Transparency, and Commitment to Excellence. I have never been more excited about the future of our company. As I have expressed in this letter over the past several years, I am incredibly proud of the work ANI and its employees have done towards delivering on our company’s purpose of “Serving Patients, Improving Lives.”
Sincerely, | |||||
 | |||||
Nikhil Lalwani | |||||
Chief Executive Officer | |||||
The Board of Directors unanimously recommends that our stockholders vote “FOR” all of the proposals presented in the Proxy Statement.
Your vote is very important. Even if you plan to attend the Annual Meeting, if you are a stockholder of record of Common Stock, Series A Preferred Stock or Class C Special Stock, please submit your proxy by Internet, mail or telephone as soon as possible to make sure that your shares are represented at the Annual Meeting, or you may submit your proxy at the Annual Meeting. If you hold your shares of Common Stock, Series A Preferred Stock or Class C Special Stock in “street name” through a bank, broker or other nominee, you must vote in accordance with the voting instructions provided to you by such bank, broker or other nominee, which include instructions for voting by Internet or telephone.
Forward-Looking Statements
In this communication we have made certain forward-looking statements within the meaning of the federal securities laws. These statements are based on management’s estimates and assumptions and are subject to risks and uncertainties. Such statements include, but are not limited to, statements about the Company’s corporate strategy, growth strategy, future plans, and other statements that are not historical in nature, particularly those that utilize terminology such as “anticipates,” “will,” “expects,” “plans,” “potential,” “future,” “believes,” “intends,” “continue,” other words of similar meaning, derivations of such words and the use of future dates. These statements are subject to a variety of risks and uncertainties that could cause actual results to differ materially from expectations. These risks and uncertainties include, but are not limited to, the risks detailed in our filings with the Securities and Exchange Commission, including the Risk Factors section of our Annual Report on Form 10-K for the fiscal year ended December 31, 2024. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and the Company assumes no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. The Company gives no assurance that it will achieve its expectations.
ANI Pharmaceuticals, Inc.
210 Main Street West
Baudette, Minnesota 56623
(218) 634-3500
NOTICE OF 2025 ANNUAL MEETING OF STOCKHOLDERS
To Be Held Thursday, May 22, 2025, 9:00 A.M. (Eastern Time)
Virtual Meeting Only — No Physical Meeting Location
| TIME AND DATE | 9:00 A.M. Eastern Time on Thursday, May 22, 2025, virtually at | ||||
| PLACE | www.virtualshareholdermeeting.com/ANIP2025 | ||||
| AGENDA | •Elect the eight director nominees named in the Proxy Statement •Ratify the appointment of EisnerAmper LLP as our independent registered public accounting firm for the year ending December 31, 2025 •Advisory vote to approve the compensation of the Company’s named executive officers •Approve an amendment to the Company’s Restated Certificate of Incorporation to increase the number of authorized shares of common stock from 33,333,334 shares to 66,000,000 shares •Approve the Company's Amended and Restated 2022 Stock Incentive Plan •Approve the Company's Amended and Restated 2016 Employee Stock Purchase Plan (the “2016 ESPP”) •Transact such other business as may properly come before the annual meeting (including adjournments and postponements) | ||||
| RECORD DATE | March 24, 2025 | ||||
The Company’s 2025 Annual Meeting of Stockholders (the “Annual Meeting”) will be held as a virtual-only meeting on Thursday, May 22, 2025 at 9:00 A.M. Eastern Time. We have adopted a virtual format for the Annual Meeting to provide a safe, consistent and convenient experience to all shareholders regardless of location. You will be able to attend the meeting, submit your questions and comments during the meeting, and vote your shares at the meeting by visiting www.virtualshareholdermeeting.com/ANIP2025.
The platform for the virtual Annual Meeting includes functionality that affords validated stockholders the same meeting participation rights and opportunities they would have at an in-person meeting. Instructions to access and log into the virtual Annual Meeting are provided in the accompanying Proxy Statement.
Only holders of the Company’s Series A Convertible Preferred Stock, Common Stock and Class C Special Stock of record as of March 24, 2025 are entitled to notice of and to vote at the Annual Meeting.
Your vote is very important. Regardless of whether you plan to attend the virtual Annual Meeting, please promptly vote your shares. You may vote your shares over the Internet or via a toll-free telephone number. You may submit your proxy for the Annual Meeting by completing, signing, dating and returning your proxy in the pre-addressed envelope provided. For specific instructions on how to vote your shares, please refer to the section titled “Voting Methods” on page 5 of the Proxy Statement.
It remains very important that your shares are represented and voted at the Annual Meeting. We therefore strongly encourage you to vote in advance of the Annual Meeting.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE 2025 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON MAY 22, 2025.
THE NOTICE OF THE 2025 ANNUAL MEETING, THE 2025 PROXY STATEMENT AND THE 2024 ANNUAL REPORT TO STOCKHOLDERS ARE AVAILABLE AT WWW.PROXYVOTE.COM.
By Order of the Board of Directors, | |||||
 | |||||
Meredith W. Cook | |||||
Senior Vice President, General Counsel and Corporate Secretary | |||||
Princeton, New Jersey
_____, 2025
TABLE OF CONTENTS
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ANI Pharmaceuticals, Inc.
210 Main Street West
Baudette, Minnesota 56623
(218) 634-3500
________________________
PRELIMINARY PROXY STATEMENT - SUBJECT TO COMPLETION, DATED MARCH 31, 2025
FOR 2025 ANNUAL MEETING OF STOCKHOLDERS
To Be Held at 9:00 A.M. Eastern Time
on Thursday, May 22, 2025
________________________
Our Board of Directors (the “Board”) solicits your proxy for the 2025 Annual Meeting of Stockholders (the “Annual Meeting”) and any postponement or adjournment of the Annual Meeting for the matters set forth in “Notice of 2025 Annual Meeting of Stockholders.” The Annual Meeting will be held virtually on Thursday, May 22, 2025 at 9:00 A.M. Eastern Time at www.virtualshareholdermeeting.com/ANIP2025. This Proxy Statement is being made available to holders of the Company’s Series A Convertible Preferred Stock, $0.0001 par value per share (the “Series A Preferred Stock”), the Company’s Common Stock, $0.0001 par value per share (the “Common Stock”) and the Company’s Class C Special Stock, $0.0001 par value per share (the “Class C Special Stock” and the holders of the Series A Preferred Stock, the Common Stock and the Class C Special Stock together, the “Stockholders”) beginning on _____, 2025.
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INFORMATION ABOUT THE ANNUAL MEETING AND VOTING
| Record Date | March 24, 2025 | ||||
| Quorum Requirement | Holders of at least one-third of the outstanding shares of the Company’s capital stock issued and outstanding and entitled to vote on the record date must be present at the Annual Meeting or represented by proxy. Abstentions and broker non-votes are counted as present and entitled to vote for purposes of determining a quorum. | ||||
| Voting Shares Outstanding on the Record Date | 25,000 shares of Series A Preferred Stock, 21,574,175 shares of Common Stock and 10,864 shares of Class C Special Stock outstanding as of March 24, 2025. The 25,000 shares of Series A Preferred Stock outstanding as of March 24, 2025 are entitled to cast an aggregate of 611,937 votes. The 21,574,175 shares of Common Stock and 10,864 shares of Class C Special Stock outstanding as of March 24, 2025 are entitled to cast an aggregate of 21,585,039 votes, which is one vote per share. | ||||
| Voting by Proxy Voting at the Meeting | Internet, telephone, or mail: We encourage Stockholders to vote in advance of the Annual Meeting, even if they plan to access the Annual Meeting virtually. In order to vote in advance, proxies submitted by Internet or telephone must be received by 11:59 P.M. Eastern Time on May 21, 2025. Stockholders can vote during the Annual Meeting, using the Internet. Beneficial holders who wish to vote during the Annual Meeting must obtain a valid legal proxy and control number from their broker, bank, or other nominee prior to the date of the Annual Meeting giving them the right to vote the shares. Voting by a Stockholder during the Annual Meeting will replace any previous votes. | ||||
| Changing Your Vote | If you have given your proxy and later wish to revoke it, you may do so at any time before it is voted at the Annual Meeting by (a) delivering a proxy revocation or another duly executed proxy bearing a later date to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717 or (b) casting a later vote via the Internet or Telephone, or (c) attending the Annual Meeting and voting online. Attendance online at the Annual Meeting will not revoke a proxy unless the Stockholder actually votes online during the virtual meeting. Your latest Internet or telephone proxy is the one that will be counted. If you hold shares through a broker, bank, or other nominee, you may revoke any prior voting instructions by contacting that firm. | ||||
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Votes Required to Adopt Proposals
| Proposal | Vote Required | Voting Choices | Broker Discretionary Voting Allowed | |||||||||||||||||
Election of the director nominees named in the Proxy Statement ("Proposal 1") | The number of votes cast by Stockholders present at the Annual Meeting in person (virtually) or by proxy and voting “FOR” a nominee must exceed the number of votes cast “AGAINST” the nominee. | “FOR”, “AGAINST”, or “ABSTAIN” | No | |||||||||||||||||
Ratification of appointment of EisnerAmper LLP as our independent registered public accounting firm for the year ending December 31, 2025 ("Proposal 2") | The vote of the holders of a majority of the stock represented and entitled to vote on such proposal. | “FOR”, “AGAINST”, or “ABSTAIN” | Yes | |||||||||||||||||
Advisory vote to approve the compensation of the Company’s named executive officers ("Proposal 3") | The vote of the holders of a majority of the stock represented and entitled to vote on such proposal. | “FOR”, “AGAINST”, or “ABSTAIN” | No | |||||||||||||||||
Approval of amendment to the Company’s Restated Certificate of Incorporation to Increase the Number of Authorized Shares of Common Stock (“Proposal 4”) | The vote of the holders of a majority of the issued and outstanding shares of the Company. | “FOR”, “AGAINST”, or “ABSTAIN” | No | |||||||||||||||||
Approval of the Company's Amended and Restated 2022 Stock Incentive Plan ("Proposal 5") | The vote of the holders of a majority of the stock represented and entitled to vote on such proposal. | “FOR”, “AGAINST”, or “ABSTAIN” | No | |||||||||||||||||
Approval of the Company's Amended and Restated 2016 Employee Stock Purchase Plan ("Proposal 6") | The vote of the holders of a majority of the stock represented and entitled to vote on such proposal. | “FOR”, “AGAINST”, or “ABSTAIN” | No | |||||||||||||||||
Each holder of Common Stock and Class C Special Stock represented at the Annual Meeting will be entitled to cast one vote for each share of Common Stock and Class C Special Stock, as applicable, entitled to vote and held by such holder as of the Record Date. Each holder of Series A Preferred Stock will be entitled to a number of votes equal to the largest number of whole shares of common stock into which all shares of Series A Preferred Stock held of record by such holder could then be converted as of the Record Date. Stockholders do not have cumulative voting rights. The Series A Preferred Stock, the Common Stock and the Class C Special Stock vote together as a single class.
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| Effect of Abstentions and Broker Non-Votes | A “broker non-vote” occurs when a stockholder holds shares of common stock in “street name” through a broker or similar organization, and the stockholder does not provide the broker or other organization with instructions within the required timeframe before the annual meeting as to how to vote the shares on “non-routine” matters. Under relevant Nasdaq rules, we believe that Proposal 2, to ratify the appointment of EisnerAmper LLP as our independent registered accounting firm for the year ending December 31, 2025, is considered a “routine” matter on which brokers are permitted to vote in their discretion even if the beneficial owners do not provide voting instructions. Accordingly, we do not expect there to be any broker non-votes for such proposal and abstentions will have the same effect as a vote “AGAINST” for such proposal. Under relevant Nasdaq rules, we believe that Proposal 1, the election of directors, Proposal 3, the advisory vote to approve the compensation of the Company’s named executive officers, Proposal 4, the approval of an amendment to the Company’s Restated Certificate of Incorporation to increase the number of authorized shares of common stock, Proposal 5, the approval of the Company’s Amended and Restated 2022 Stock Incentive Plan, and Proposal 6, the approval to amend our 2016 Employee Stock Purchase Plan, are considered to be “non-routine” matters, and therefore, your broker cannot vote your shares on these non-routine matters unless your broker receives instructions from you as to how to vote. If you are a beneficial holder and do not provide specific voting instructions to your broker or custodian of your shares, your broker or custodian will not be authorized to vote on any of the matters other than the ratification of the appointment of EisnerAmper LLP. For Proposals 1, 3, 5, and 6, broker non-votes will have “NO EFFECT” on the outcome of such proposals. For Proposal 4, broker non-votes will have the same effect as a vote "AGAINST" such proposal. For Proposals 3, 4, 5, and 6, abstentions will have the same effect as a vote “AGAINST” such proposals. For Proposal 1, abstentions will have “NO EFFECT” on the outcome of such proposal. We encourage you to vote promptly, even if you plan to attend the Annual Meeting. | ||||
| Voting Instructions | If you complete and submit your proxy voting instructions, the persons named as proxies will follow your instructions. If you are a Stockholder of record and you submit proxy voting instructions but do not direct how to vote on each proposal, the persons named as proxies will vote as the Board recommends on each proposal. The persons named as proxies will vote on any other matters properly presented at the Annual Meeting in accordance with their judgment. Our Second Amended and Restated Bylaws (“bylaws”) set forth requirements for advance notice of nominations and agenda items for the Annual Meeting, and we have not received timely notice of any such matters that may be properly presented for voting at the Annual Meeting, other than the items from the Board described in this Proxy Statement. | ||||
| Proxy Solicitation Costs | The expense of soliciting proxy cards, including the costs of preparing, assembling and mailing the Notice of 2025 Annual Meeting of Stockholders, proxy statement and proxy card, will be borne by the Company. Our directors and officers may also solicit proxies in person, by telephone or by other means of communication. These parties will not be paid any additional compensation for soliciting proxies. We may also reimburse brokerage firms, banks and other agents for the cost of forwarding proxy materials to beneficial owners. | ||||
| Voting Results | We expect to announce preliminary results at the Annual Meeting. We will report final results from the Annual Meeting in a filing with the U.S. Securities and Exchange Commission (“SEC”) within four business days of the Annual Meeting in a Current Report on Form 8-K. | ||||
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Access and Log-in Instructions for Virtual Annual Meeting
The platform for the virtual Annual Meeting includes functionality that affords validated Stockholders the same meeting participation rights and opportunities they would have at an in-person meeting. Instructions to access and log into the virtual Annual Meeting are provided below, and once admitted, Stockholders may submit questions and vote their shares by following the instructions that will be available on the Annual Meeting website.
To be admitted to the Annual Meeting, go to www.virtualshareholdermeeting.com/ANIP2025 and enter the 16-digit control number included on your proxy card or on the instructions that accompanied your proxy materials. Online access to the Annual Meeting will open at 8:45 A.M. Eastern Time to allow time for you to log-in prior to the start of the live audio webcast of the Annual Meeting at 9:00 A.M. Eastern Time.
If you are unable to locate your proxy materials containing your 16-digit control number and cannot log-in as a validated Stockholder, you may opt to participate in the Annual Meeting as a “guest,” in which case you will be able to hear the audio webcast but will not be able to utilize the question, voting, or other functions noted above.
How Beneficial Owners May Participate in the Virtual Annual Meeting
If your shares are registered in the name of your bank, broker, or other nominee, you are the “beneficial owner” of those shares and those shares are considered as held in “street name.” If you are a beneficial owner, to vote or ask questions at the virtual Annual Meeting, you must first obtain a valid legal proxy from your bank, broker, or other nominee. Follow the instructions from your bank, broker, or other nominee included with the proxy materials that you are provided, or contact your bank, broker, or other nominee to request a legal proxy form.
Voting Methods
BEFORE the Annual Meeting:
Vote by Internet: Go to www.proxyvote.com until 11:59 P.M. Eastern Time on May 21, 2025.
Vote by Phone: Call toll-free 1-800-690-6903 until 11:59 P.M. Eastern Time on May 21, 2025.
Vote by Mail: Complete, sign, and date the proxy card/voting instruction card and return it in the postage-paid envelope that is enclosed with your proxy materials.
DURING the Annual Meeting:
Vote by Internet: Go to www.virtualshareholdermeeting.com/ANIP2025 and vote during the Annual Meeting by entering the 16-digit control number included in your proxy materials and following the instructions on the Annual Meeting website.
INTERNET AVAILABILITY OF PROXY MATERIALS
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR
THE ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON MAY 22, 2025:
THE NOTICE OF THE 2025 ANNUAL MEETING, THE PROXY STATEMENT, AND THE 2024 ANNUAL
REPORT TO STOCKHOLDERS ARE AVAILABLE AT WWW.PROXYVOTE.COM.
QUESTIONS
| For questions regarding | Contact via mail or email: | |||||||
Annual Meeting | ANI Pharmaceuticals, Inc. 210 Main Street West Baudette, Minnesota 56623 Attn: Investor Relations Email: IR@anipharmaceuticals.com | |||||||
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PROPOSAL 1: ELECTION OF DIRECTORS
Board Composition; Selection of Nominees
The Company’s bylaws provide that our Board of Directors (the “Board”) may determine the number of directors from time to time. Our Board is currently composed of eight members.
The Company’s Nominating and Corporate Governance Committee is responsible for developing and recommending to the Board for determination any specific minimum qualifications that must be met, any specific qualities or skills that are necessary for one or more of our Board members to possess, and the desired qualifications, expertise and characteristics of our Board members. All directors are encouraged to submit to the Company’s Nominating and Corporate Governance Committee the name of any person deemed qualified to serve on the Board, together with information on the candidate’s qualifications. The Nominating and Corporate Governance Committee also considers candidates recommended by the Company’s Stockholders for election to the Board. The Nominating and Corporate Governance Committee will screen and submit to the full Board the names and biographical information of those persons considered by the Nominating and Corporate Governance Committee to be viable candidates for election as directors.
The Nominating and Corporate Governance Committee is committed to having diverse individuals from different backgrounds with varying perspectives, professional experience, education and skills serving as members of the Board, and believes that a diverse membership with a variety of perspectives and experiences is an important feature of a well-functioning board. In furtherance of this commitment, when considering candidates to fill an open seat on the Board, the Nominating and Corporate Governance Committee will require that the list of candidates to be considered by the Committee for nomination to the Board include candidates with diversity of race, ethnicity, and gender. Any third-party consultant asked to furnish an initial list of candidates will be required to include such diverse candidates.
There are no term limits and no fixed retirement age for directors. The Board does not believe that a fixed retirement age, or term limits, for directors are appropriate. While mandatory retirement and term limits could help ensure that there are fresh ideas and viewpoints available to the Board, they hold the disadvantage of losing the contribution of directors who over time have developed increasing insight into the Company and its operations and therefore provide an increasing contribution to the Board as a whole.
When seeking new director candidates, the Nominating and Corporate Governance Committee will consider potential candidates for directors submitted by Board members, members of our management, and our Stockholders, and the Committee does not evaluate candidates differently based upon the source of the nominee. The Company did not receive any director nominations from Stockholders in accordance with procedures set forth in its bylaws. Director nominations presented by Stockholders at the Annual Meeting will not be considered.
The Nominating and Corporate Governance Committee recommended to the Board the following eight incumbent directors of the Board as nominees for election to the Board at the Annual Meeting to serve, if elected, until the 2026 annual meeting and until their successors are duly qualified and elected or until their earlier death, resignation, disqualification or removal. Set forth below are the names and ages of these nominees, the years they became directors, their principal occupations or employment for at least the past five years and the names of other public companies for which they serve as a director or have served as a director during the past five years. Also set forth are the specific experiences, qualifications, or skills that led our Nominating and Corporate Governance Committee to conclude that each person should serve as a director.
Information Regarding Director Nominees
Thomas J. Haughey, 61, has served as a director since May 2018. Mr. Haughey held the role of General Counsel and Secretary at Par Pharmaceutical Companies, Inc. (“Par”) from 2003 through 2016. In addition to his role as General Counsel, he has held various additional executive roles at Par including President from 2011 to 2012 and, most recently, Chief Administrative Officer from 2012 to 2016. Prior to that, Mr. Haughey held positions at Schering-Plough Corporation, where he was Chief Counsel from 1998 to 2001 and Legal Director from 2001 to 2003. Previously, Mr. Haughey was an attorney at Cadwalader Wickersham & Taft and a certified public accountant at Arthur Anderson & Co. Since 2016, Mr. Haughey has been an adjunct professor at Passaic County Community College. Mr. Haughey earned a B.S. in accounting at St. John’s University and a J.D. at the New York University School of Law.
Mr. Haughey is qualified to serve on our Board because of his experience in the pharmaceutical industry, as well as his legal, financial and accounting expertise.
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Mr. Haughey is the current Chair of the Board’s Audit and Finance Committee and qualifies as an audit committee financial expert. He is also a member of the Board’s Nominating and Corporate Governance Committee.
Nikhil Lalwani, 47, has served as ANI’s President and Chief Executive Officer and as a member of ANI’s board since September 2020. Prior to joining ANI in September 2020, Mr. Lalwani was Chief Executive Officer of the India Rx Business at Cipla Ltd. (NSE: CIPLA), a global pharmaceutical company, from April 2020 to August 2020, Chief Executive Officer of Cipla USA from April 2017 to April 2020, Chief Executive Officer of InvaGen, a subsidiary of Cipla Ltd., from April 2016 to April 2020, as well as other leadership roles at Cipla, including Head of US Strategy, M&A and Integration, and Head of Cipla’s Global Respiratory business. In these roles, Mr. Lalwani developed and executed multi-year strategic growth plans for key products and facilitated successful acquisitions as Cipla entered the specialty pharmaceutical space. Prior to Cipla, Mr. Lalwani was an Associate Partner with McKinsey & Company, serving pharmaceutical and healthcare companies across the world, and an engineer with Medtronic. Mr. Lalwani holds a B.S. in Electrical Engineering from Georgia Institute of Technology and an M.B.A. from the Wharton School at the University of Pennsylvania.
Mr. Lalwani is qualified to serve on our Board based on his extensive experience as an executive in the pharmaceutical industry and his position as President and Chief Executive Officer of ANI. As a member of the executive team of the Company, Mr. Lalwani serves a vital function in the link between management and the Board, enabling the Board to perform its oversight function with the benefits of management’s perspective on the business.
Matthew J. Leonard, R.Ph., 59, has been a member of the Board since August 2023. Since December 2023, Mr. Leonard has served as Pfizer, Inc.'s Senior Vice President of Global Access and Value. Prior to that, he previously served as the Chief Pharmacy Strategy Officer at Capsule, a digital healthcare company focused on improving the delivery of pharmacy services from May 2021 to December 2023, and previously served as the Executive Vice President, President North America and Global Supply Chain Officer at Covetrus from April 2019 to April 2020. Prior to Covetrus, Mr. Leonard spent 24 years in a variety of leadership roles with CVS Health, most recently as Executive Vice President, Pharmaceutical Contracting, Purchasing and Managed Care. From August 2016 to April 2019, Mr. Leonard also served as Chairman of the Board and President at Red Oak Sourcing, LLC, the joint venture between CVS Health and Cardinal Health, where he was responsible for securing an $8 billion portfolio of generic drugs. Mr. Leonard holds a B.S. in Pharmacy from the University of Rhode Island and is a Registered Pharmacist in the State of Rhode Island.
Mr. Leonard is qualified to serve on our Board because of his extensive executive leadership experience in the pharmaceutical and pharmacy services industries.
Mr. Leonard is currently a member of the Board’s Audit and Finance Committee and a member of the Board’s Nominating and Corporate Governance Committee.
Antonio R. Pera, 67, has served as a director since August 2020. Mr. Pera served in various roles, including as President of Par, the fifth-largest generic manufacturer in the United States, which is now part of Endo International, plc, from December 2013 until his retirement in August 2019. Prior to Par, Mr. Pera held leadership positions at AmerisourceBergen, American Pharmaceuticals Partners, Bedford Laboratories, a division of Ben Venue Laboratories, and Baxter Healthcare. His breadth of experience spans sales, marketing, supply chain operations, and licensing, and he has played a pivotal role in the successful growth and commercialization efforts at several successful pharma entities. Mr. Pera holds a B.S. in Business Administration from the University of Illinois at Urbana-Champaign and an M.B.A. from DePaul University.
Mr. Pera is qualified to serve on our Board based on his significant leadership experience and his knowledge of the pharmaceutical industry.
Mr. Pera is the current Chair of the Board’s Compensation Committee.
Muthusamy Shanmugam, 57, has served as a director and as Head of Research & Development and Chief Operating Officer, Novitium Operations since November 2021. Mr. Shanmugam has over three decades of experience in the pharmaceutical industry, most recently serving as President of Novitium from 2016 until the present. Mr. Shanmugam began his career as a formulation scientist at Kali Laboratories, Inc. Prior to co-founding Novitium, Mr. Shanmugam also held positions at Par and Novel Laboratories, Inc. Mr. Shanmugam is a director and founder of Nuray Chemicals Private Limited and Sthree Chemicals Private Limited, both located in India and engaged in manufacturing of active pharmaceutical ingredients, and is a director and founder of SS Pharma LLC, which acts as a U.S. agent for sales of active pharmaceutical ingredients. Mr. Shanmugam is also a director and founder of Scitus Pharma Services Pvt Ltd, a clinical research organization also located in India. Mr. Shanmugam obtained his M.S. in Industrial Pharmacy from the Tamil Nadu Dr. M.G.R. Medical University and is a registered pharmacist in the state of New York.
Mr. Shanmugam is qualified to serve on our Board based on his extensive experience in the pharmaceutical industry and his leadership of Novitium and his current leadership at the Company in R&D and Operations.
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Renee P. Tannenbaum, Pharm.D., 73, has served as a director since March 2022. Dr. Tannenbaum currently serves as a strategic advisor for several biopharmaceutical and device companies and serves as a director to Cardiff Oncology, Inc. Since March 2024, Dr. Tannenbaum has served as Head of Corporate Development for Bench International, an executive search firm focused on biotech and life sciences. Previously, she served as Vice President of Global Partnering at Halozyme, Inc. from August 2016 to July 2021, where she was responsible for leading the team that executed business development activities and the company’s alliances through partnerships and collaborations. Prior to that, Dr. Tannenbaum was Head of Global Customer Excellence at AbbVie from October 2012 to January 2016, where she was responsible for building commercial capabilities for the organization. Dr. Tannenbaum has served as a director at U.S. publicly traded companies, including most recently Zogenix, Inc., foreign publicly traded companies Nordic Nanovector ASA and Cipher Pharmaceuticals, Inc., and privately held companies, including Sharps Compliance Inc. and Immune Pharmaceuticals, Inc. Dr. Tannenbaum received her Doctor of Pharmacy degree from the Philadelphia College of Pharmacy and Sciences, her M.B.A. from Temple University, and her B.S. in Pharmacy from the University of Connecticut.
Dr. Tannenbaum is qualified to serve on our Board based on her extensive executive leadership experience in the pharmaceutical and biopharmaceutical industries and her current and past experience as a director of several U.S. and foreign public companies.
Dr. Tannenbaum is currently a member of the Board's Compensation Committee and Chair of the Board’s Nominating and Corporate Governance Committee.
Jeanne A. Thoma, 65, has served as a director since August 2020. In November 2021, Ms. Thoma joined the Board of Nanoform Finland Oyj, a producer of nanoformed drug particles. Previously, Ms. Thoma served as a director of the Avid Bioservices, Inc. board from December 2020 until the company was taken private in February 2025. She was on the Board of Vectura Group plc. from December 2020 until the sale of the company in October 2021, and on the Board of Pharmathen Global B.V. from January 2022 until March 2024, following a change in the company’s strategy. From January 2017 to October 2020, Ms. Thoma was the President and Chief Executive Officer of SPI Pharma Inc., a global pharmaceuticals ingredients company which manufactures actives, excipients, and drug delivery systems. From January 2015 to December 2016, Ms. Thoma worked as an independent consultant to technology and specialty chemicals companies. Previously, Ms. Thoma worked for Lonza AG, a Switzerland-based biotech company, where she held positions of increasing responsibility, including President and Chief Operating Officer of the Microbial Control Business Sector. Prior to joining Lonza in 2004, Ms. Thoma spent 14 years at BASF Corp. in the Pharma Solutions business where she held various leadership positions in Sales, Marketing and Operations. Ms. Thoma holds a B.S. from Montclair State University and an M.B.A. from Fairleigh Dickinson University.
Ms. Thoma is qualified to serve on our Board based on her extensive leadership experience in the pharmaceutical industry.
Ms. Thoma is currently a member of the Board’s Audit and Finance Committee and a member of the Board's Compensation Committee.
Patrick D. Walsh, 64, has served as a director since May 2018 and has been Chairman of the Board since June 2020. He also served as interim Chief Executive Officer of ANI from May 2020 to September 2020. In March 2021, Mr. Walsh was appointed as Chairman and Chief Executive Officer of Alcami, a global pharmaceutical contract development and manufacturing organization. He retired as CEO in June 2023 but still serves as Chairman. Mr. Walsh co-founded TriPharm Services, an injectable manufacturing business which was acquired by Alcami, and served as its Chief Executive Officer from May 2019 to April 2020. From 2015 to February 2019, Mr. Walsh was the Chief Executive Officer of Avista Pharma, a private equity-backed global provider of contract manufacturing, development and analytical testing services that was acquired by Cambrex. Mr. Walsh’s earlier career includes serving as Chief Executive Officer of AAIPharma Services Corporation in Wilmington, North Carolina, a global provider of contract manufacturing services that was acquired in 2014, as Chief Executive Officer of Kadmus Pharma, which was acquired by Organon Pharma, and also serving as President and Chief Operating Officer and board member of publicly-traded Gensia-Sicor, which was acquired by Teva. Mr. Walsh is an Operating Partner (part-time) at healthcare private equity firm Ampersand Capital located in Wellesley, MA and is also Chairman of the Board of MedPharm, Ltd and founder of Diligence Group LLC based in Bluffton, South Carolina. Mr. Walsh’s prior board of director experience includes serving as Chairman of private equity backed Brammer Bio, and as an independent director at Landec, Avid Bioservices, and ICE Pharma. He has previously served as a director in numerous biotechnology and healthcare organizations over the course of his 40-plus year career.
Mr. Walsh is qualified to serve on our Board because of his extensive experience at pharmaceutical manufacturing and development organizations and his significant prior experience as an independent director.
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Director Compensation
The Company's non-employee directors received the following compensation program.
Annual Cash Compensation. In 2024, the Company’s non-employee directors received an annual cash retainer of $59,250. The Chair of the Board also received an additional annual retainer of $42,500. Chairs of the Audit and Finance, Compensation, and Nominating and Corporate Governance Committees received additional annual retainers of $25,000, $20,000 and $15,000, respectively. Members of Audit and Finance, Compensation, Nominating and Corporate Governance Committees (other than the Chair) received further annual retainers of $12,500, $10,000 and $7,500, respectively. Directors did not receive any meeting fees.
Annual Equity Awards. The non-employee directors also receive an annual restricted stock award upon re-election to the board equal to a grant date fair value of $290,000. In May 2024, the Board approved equity grants to the current non-management directors of 4,410 shares of restricted common stock. The grants of restricted common stock to incumbent non-employee directors will vest on the first anniversary of the grant date.
Equity Awards for New Directors. New directors receive a grant of restricted stock with an aggregate grant date fair value of $435,000 which vest in three equal installments on the first, second and third anniversary of appointment to the Board.
The following table sets forth certain information with respect to the compensation paid or awarded by the Company to its non-employee directors who served for some portion or all of the fiscal year ended December 31, 2024.
Name(1) | Fees Earned or Paid in Cash ($)(2) | Stock Awards ($)(3)(4)(5) | Option Awards ($)(4) | Non-Equity Incentive Plan Compensation ($) | Change in Pension Value and Nonqualified Deferred Compensation Earnings ($) | Total ($) | ||||||||||||||||||||||||||||||||
Patrick Walsh(6) | 101,750 | 272,141 | — | — | — | 373,891 | ||||||||||||||||||||||||||||||||
| Thomas Haughey | 91,750 | 272,141 | — | — | — | 363,891 | ||||||||||||||||||||||||||||||||
| Matthew Leonard | 77,457 | 272,141 | — | — | — | 349,598 | ||||||||||||||||||||||||||||||||
David Nash(6)(7) | 55,530 | — | — | — | — | 55,530 | ||||||||||||||||||||||||||||||||
| Antonio Pera | 79,250 | 272,141 | — | — | — | 351,391 | ||||||||||||||||||||||||||||||||
| Renee Tannenbaum | 79,449 | 272,141 | — | — | — | 351,590 | ||||||||||||||||||||||||||||||||
| Jeanne Thoma | 81,750 | 272,141 | — | — | — | 353,891 | ||||||||||||||||||||||||||||||||
__________________________
(1)Muthusamy Shanmugam, our Head of Research and Development and Chief Operating Officer of New Jersey Operations, does not receive additional compensation for his services as a director and thus is not included on this table. Nikhil Lalwani, our President and Chief Executive Officer, does not receive additional compensation for his services as a director and thus is not included on this table. Mr. Lalwani’s compensation as an executive officer is disclosed in the Summary Compensation Table of the Compensation Discussion and Analysis.
(2)Non-employee directors received an annual retainer fee plus any additional annual fees due for service on our committees or as our Chair of the Board in the amounts described above under “Annual Cash Compensation” above.
(3)The amounts shown in this column reflect the aggregate grant date fair value of the restricted stock awards calculated in accordance with FASB ASC Topic 718. See Note 15 to the audited financial statements included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2024 for further information about the assumptions underlying the calculations made with respect to the restricted stock grants noted in this table.
(4)Our non-employee directors who served in 2024 held the following number of unexercised stock options and unvested shares of restricted stock as of December 31, 2024.
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| Name | Stock Options Outstanding | Unvested Shares of Restricted Stock | ||||||||||||
| Patrick Walsh | 4,634 | 4,410 | ||||||||||||
| Thomas Haughey | 4,634 | 4,410 | ||||||||||||
| Matthew Leonard | — | 9,466 | ||||||||||||
| David Nash | 4,634 | — | ||||||||||||
| Antonio Pera | 16,024 | 4,410 | ||||||||||||
| Renee Tannenbaum | — | 8,859 | ||||||||||||
| Jeanne Thoma | 16,024 | 4,410 | ||||||||||||
(5)Grant date value calculated based on the closing market price per share on the date of grant of $61.71. Award amount calculated based on 30-day volume-weighted average price of $65.76.
(6)Cash compensation payable to Dr. Nash for his services on the Board was remitted directly to his employer, Thomas Jefferson University. Cash compensation payable to Mr. Walsh for his services on the Board is remitted directly to Diligence Team, LLC.
(7)Dr. Nash decided not to stand for re-election to the board in May 2024, so his term as director ended in May 2024.
The Company is also obligated to indemnify and may advance the payment of certain expenses for its directors in certain circumstances under Delaware law and pursuant to the Company’s governance documents. Non-management directors receive no other form of remuneration, perquisites or benefits but are reimbursed for their expenses in attending meetings.
Stock Ownership Guidelines
The Board believes that it is in the best interest of the Company and its stockholders to align the financial interests of Board members with those of the Company’s stockholders through ownership of Company stock. The Board believes that stock ownership demonstrates a commitment to, and belief in, the long-term profitability of the Company. The guidelines provide a minimum beneficial ownership of Company common stock equal to four times a director’s annual cash retainer for service as a Board member, excluding retainers for committee membership and chair position. Only common stock beneficially or directly owned, vested and unvested restricted stock awards, vested performance stock units, and vested shares underlying stock options are included in the stock ownership total. Unvested shares underlying stock options or unvested performance stock units are not included in the stock ownership total. Directors are required to achieve this ownership level within five years of first becoming subject to the guidelines, which were put into place in April 2021 and amended in November 2024. All Board members have achieved their required stock ownership levels.
Vote Required; Recommendation of the Board
The election of each of the nominees for director requires that the number of votes cast by Stockholders present in person (virtually) or by proxy and voting “FOR” a nominee must exceed the number of votes cast “AGAINST” the nominee. In the event that a nominee fails to receive an affirmative majority of the votes cast, the Board of Directors may require such nominee to tender his or her resignation, decrease the number of directors, fill the vacancy, or take any other appropriate action it deems to be in the best interest of the Company.
THE BOARD RECOMMENDS THAT YOU VOTE “FOR” THE ELECTION OF EACH OF THE ABOVE NOMINEES FOR DIRECTOR.
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CORPORATE GOVERNANCE
The Board is committed to governance practices that promote long-term stockholder value and strengthen Board and management accountability to our stockholders, clients and other stakeholders. The following table highlights many of our key governance practices.
•Six of our eight directors are independent | •Annual Board and committee self-assessment process | |||||||
•Separate Chief Executive Officer and Board Chair positions | •Strong focus on pay-for-performance | |||||||
•Independent standing Board committees | •Stock ownership guidelines for executive officers and directors | |||||||
•Regular meetings of our independent directors without management present | •Clawback policy on executive compensation | |||||||
•Two of our eight directors are female and three of our eight directors identify as racially diverse. | •Environmental, social and governance (“ESG”) risks, opportunities and impacts to support the sustainable growth of ANI’s businesses are overseen by the Nominating and Corporate Governance Committee | |||||||
Board Responsibilities and Structure
Our Board oversees, counsels, and directs management in the long-term interests of the Company and our stockholders. Among other things, the Board’s responsibilities include:
•selecting the Chief Executive Officer (“CEO”) and other executive officers;
•overseeing the risks that the Company faces, including cybersecurity risk;
•reviewing and approving our major strategic and operating plans, and other significant actions;
•overseeing the conduct of our business and the assessment of our business and other enterprise risks to evaluate whether the business is being properly managed;
•overseeing the processes for maintaining our integrity with regard to our financial statements and other public disclosures, and compliance with law and ethics.
The Board and its committees met throughout the year on a set schedule, held special meetings, and acted by written consent from time to time as appropriate. The Board held 15 meetings in 2024.
Our bylaws dictate that the Board shall, from time to time, elect one of the directors to serve as Chair of the Board. Currently, the Board has selected Patrick Walsh to hold the position of Chair of the Board. Mr. Walsh’s experience at the Company has afforded him intimate knowledge of the issues, challenges, and opportunities facing the Company’s business. Accordingly, he is well positioned to focus the Board’s attention on the most pressing issues facing the Company. If at any time, the Chief Executive Officer and Chairman are the same, the Nominating and Corporate Governance Committee will elect an independent director to serve as the lead director. Currently, the Board has selected Nikhil Lalwani to serve as Chief Executive Officer of the Company.
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Director Independence
The Board is currently composed of eight directors. Under the rules of The Nasdaq Stock Market (“Nasdaq”), independent directors must comprise a majority of a listed company’s board of directors.
The Board has undertaken a review of its composition, the composition of its committees, and the independence of each director. Based upon information requested from and provided by each director concerning his or her background, employment, and affiliations, including family relationships, the Board has determined that Thomas Haughey, Matthew Leonard, Antonio Pera, Renee Tannenbaum, Jeanne Thoma and Patrick Walsh, representing six of our eight directors, do not or did not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors is “independent,” as that term is defined under the applicable rules and regulations of the SEC and the listing requirements and rules of the Nasdaq. In making this determination, the Board considered the current and prior relationships that each non-employee director has or had with our Company and all other facts and circumstances the Board deemed relevant in determining their independence, including the beneficial ownership of our capital stock by each non-employee director.
Transactions Considered in Independence Determinations
In making its independence determinations, the Board considered any transactions that occurred since the beginning of 2024 between the Company and entities associated with the independent directors or members of their immediate family.
None of the non-employee directors were disqualified from “independent” status under the Nasdaq objective standards. In making its subjective determination that each of our Company’s non-employee directors is independent, the Board considered the transactions and other potentially relevant relationships in the context of the Nasdaq objective standards, the special standards established by the SEC for members of audit committees, and the SEC and Nasdaq standards for compensation committee members. Based on the foregoing, as required by the Nasdaq rules, the Board made a subjective determination that no relationships exist that, in the opinion of the Board, would impair these directors’ independence.
Board Diversity
| Board Diversity Matrix (as of , 2025) | |||||||||||||||||||||||
| Total Number of Directors | 8 | ||||||||||||||||||||||
| Female | Male | Non-Binary | Did Not Disclose Gender | ||||||||||||||||||||
| Part I: Gender Identity | |||||||||||||||||||||||
| Directors | 2 | 6 | — | — | |||||||||||||||||||
| Part II: Demographic Background | |||||||||||||||||||||||
| African American or Black | — | — | — | — | |||||||||||||||||||
| Alaskan Native or Native American | — | — | — | — | |||||||||||||||||||
| Asian | — | 2 | — | — | |||||||||||||||||||
| Hispanic or Latinx | — | 1 | — | — | |||||||||||||||||||
| Native Hawaiian or Pacific Islander | — | — | — | — | |||||||||||||||||||
| White | 2 | 2 | |||||||||||||||||||||
| Two or More Races or Ethnicities | — | — | — | — | |||||||||||||||||||
| LGBTQ+ | — | — | — | — | |||||||||||||||||||
| Did not Disclose Demographic Background | — | 1 | — | — | |||||||||||||||||||
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Board Leadership Structure
The Board believes that its stockholders are best served if the Board retains the flexibility to adapt its leadership structure to applicable facts and circumstances, which necessarily change over time. Accordingly, under the Company’s Corporate Governance Guidelines, the office of Chairman of the Board and Chief Executive Officer may or may not be held by the same person. Currently, the Chief Executive Officer is Nikhil Lalwani and the Chairman of the Board is Patrick Walsh. The Company currently does not have a lead independent director. The Board may in the future determine to appoint a member to act as lead independent director.
Risk Oversight
The Board is generally responsible for overseeing management of the various operational, financial, and legal risks faced by the Company. Particular risk management matters are brought to the Board by management in connection with the Board’s general oversight and approval of corporate matters. Our Board administers its risk oversight function as a whole and through its committees, as discussed below. The Audit and Finance Committee assists the Board in oversight and monitoring of principal risk exposures related to financial statements, legal, regulatory, cybersecurity and other matters, as well as related mitigation efforts. The Compensation Committee assesses, at least annually, the risks associated with our compensation policies. The Nominating and Corporate Governance Committee assists the Board in oversight of risks that we have relative to compliance with corporate governance standards. The individual committees report to the full Board, including when a matter rises to the level of a material risk. The Company’s management is responsible for day-to-day risk management. This oversight includes identifying, evaluating and addressing potential risks that may exist at the strategic, financial, operational, compliance and reporting levels. We believe the division of risk management responsibilities described above is an effective approach for addressing the risks facing our Company and that our Board leadership structure supports this approach.
Board Committees and Charters
The Board delegates various responsibilities and authority to different Board committees. Committees regularly report on their activities and actions to the full Board. The Board currently has, and appoints the members of, a standing Audit and Finance Committee, Compensation Committee and Nominating and Corporate Governance Committee. Each of the Board committees has a written charter approved by the Board, and we post the charters on our web site at https://www.anipharmaceuticals.com. Each committee can engage outside experts, advisors, and counsel to assist the committee in its work. The following table identifies the current committee members.
| Name | Audit and Finance | Compensation | Nominating and Corporate Governance(2) | |||||||||||||||||
| Thomas Haughey | Chair | — | ✓ | |||||||||||||||||
Nikhil Lalwani(1) | — | — | — | |||||||||||||||||
Matthew Leonard | ✓ | — | ✓ | |||||||||||||||||
Antonio Pera | — | Chair | — | |||||||||||||||||
Muthusamy Shanmugam(1) | — | — | — | |||||||||||||||||
Renee Tannenbaum | — | ✓ | Chair | |||||||||||||||||
Jeanne Thoma | ✓ | ✓ | — | |||||||||||||||||
Patrick Walsh | — | — | — | |||||||||||||||||
Number of Committee Meetings Held in 2024 | 5 | 7 | 4 | |||||||||||||||||
__________________________
(1)Mr. Lalwani and Mr. Shanmugam are employee directors.
(2)Dr. Tannenbaum became Chair of the Nominating and Corporate Governance Committee in May 2024, replacing Dr. Nash, who had previously served as Chair of the Nominating and Corporate Governance Committee and who decided not to stand for re-election to the Board in May 2024.
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Audit and Finance Committee. Our Audit and Finance Committee currently consists of Thomas Haughey (Chair), Matthew Leonard, and Jeanne Thoma. The Board has affirmatively determined that each of these directors meets the definition of “independent director” for purposes of the Nasdaq rules and the independence requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Board has also determined that Mr. Haughey qualifies as an “audit committee financial expert” under the applicable SEC rules and regulations and each of Mr. Haughey and Ms. Thoma meets the qualifications of “financial sophistication” under Nasdaq listing rules as a result of his or her prior experience.
The primary responsibilities of the Company’s Audit and Finance Committee include:
•Overseeing the Company’s accounting and financial reporting processes, systems of internal control over financial reporting, disclosure controls and procedures on behalf of the Company’s Board of Directors, and reporting the results or findings of its oversight activities to the Board;
•Having sole authority to appoint, retain and oversee the work of the Company’s independent registered public accounting firm and establishing the compensation to be paid to the independent registered public accounting firm;
•Establishing procedures for the receipt, retention and treatment of complaints regarding accounting, internal accounting controls and/or auditing matters and for the confidential, anonymous submission by the Company’s employees of concerns regarding questionable accounting or auditing matters;
•Reviewing and pre-approving all audit services and permissible non-audit services to be performed for the Company by its independent registered public accounting firm as provided under the federal securities laws and rules and regulations of the SEC; and
•Except for oversight risks assigned to other committees, overseeing the Company’s system to monitor and manage risk (including cybersecurity risks) and legal and ethical compliance programs, including the establishment and administration of (and including the grant of any waiver from) a written code of ethics applicable to each of the Company’s principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions preparing the Audit Committee Report that the SEC requires in our annual proxy statement.
Compensation Committee. Our Compensation Committee currently consists of Antonio Pera (Chair), Renee Tannenbaum and Jeanne Thoma. The Board has affirmatively determined that each of these directors meets the definition of “independent director” for purposes of the Nasdaq rules and the independence requirements of the Exchange Act.
The primary responsibilities of the Company’s Compensation Committee include:
•Reviewing and recommending to the Board the compensation of our CEO and, in consultation with our CEO, reviewing and approving the compensation of other executive officers;
•Establishing annual and long-term performance goals and objectives for our CEO, and in consultation with our CEO, reviewing and establishing the annual and long-term performance goals and objectives for other executive officers;
•Evaluating the performance of our CEO and, in consultation with our CEO, reviewing and evaluating the performance of other executive officers in light of the goals and objectives established for them;
•Approving employment agreements, offers of employment and other elements of compensation and benefits provided to our CEO and other executive officers;
•Periodically reviewing and discussing with our CEO and the Board the development and succession plans for senior management positions;
•Administering the Company’s cash and equity-based incentive plans in which executive officers and directors participate, to the extent provided under those plans, and recommending to the Board improvements and changes to such plans and the adoption of new plans if stockholder approval if needed, when appropriate;
•Overseeing the Company’s human capital management functions, including policies and strategies regarding recruitment, retention, career development, and progression, diversity and employment practices; and
•Establishing and leading a process for determination of the compensation applicable to service on the Board by non-employee directors.
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Nominating and Corporate Governance Committee. Our Nominating and Corporate Governance Committee currently consists of Thomas Haughey, Matthew Leonard, and Renee Tannenbaum. Dr. Tannenbaum became Chair of the Nominating and Corporate Governance Committee in May 2024, replacing Dr. Nash, who had previously served as Chair of the Nominating and Corporate Governance Committee and who decided not to stand for re-election to the Board in May 2024. The Board has affirmatively determined that each of these directors meets the definition of “independent director” for purposes of the Nasdaq rules and the independence requirements of the Exchange Act.
The primary responsibilities of the Company’s Nominating and Corporate Governance Committee include:
•Identifying individuals qualified to become members of the Company’s Board;
•Recommending director nominees for each annual meeting of the Company’s Stockholders and director nominees to fill any vacancies that may occur between meetings of Stockholders;
•Being aware of the best practices in corporate governance and developing and recommending to the Company’s Board a set of corporate governance standards to govern the Company and its management and employees in the conduct of the Company’s business and affairs;
•Developing and overseeing the annual board and board committee evaluation processes; and
•Reviewing, evaluating and overseeing the Company’s programs, policies and practices relating to ESG risks, opportunities and impacts to support the sustainable growth of ANI’s businesses.
Environmental, Social and Governance Matters
ESG Oversight
Our Nominating and Corporate Governance Committee charter includes within the committee’s purpose, duties and responsibilities oversight of our ESG programs, policies and practices. The committee’s specific duties and responsibilities in this regard include reviewing, monitoring, evaluating and overseeing the Company’s programs, policies and practices relating to ESG risks, opportunities and impacts to support the sustainable growth of our businesses and making recommendations to the Board of Directors regarding the Company’s overall strategy with respect to ESG matters. In
October 2023, the Company formed an internal ESG Steering Committee to coordinate and oversee the Company’s ESG efforts. The Company’s General Counsel acts as Chair of the ESG Steering Committee. The Chair of the ESG Steering Committee meets with and reports to the Nominating and Corporate Governance Committee with respect to ESG matters on a regular basis (at least twice per year).
Environmental Stewardship and Sustainability
ANI is committed to "Serving Patients, Improving Lives," both directly though our high-quality products, and through our environmental stewardship and sustainability practices. We strive to minimize waste and emissions, promote reuse and recycling, and conserve resources. Specifically, ANI seeks to reduce, reuse, and recycle metal, wood, plastic, cardboard, and paper, and to reduce and manage production and business waste, conserve water, minimize chemical usage and manage chemical waste, reduce emissions, and improve energy efficiency.
Human Capital
As of January 2025, we have 898 employees, of which 720 are located in the United States, including Puerto Rico, 112 are in India, 28 are in the United Kingdom, 18 are in Germany, 11 are in Portugal, eight are in Ireland, and one is in Canada. We also utilize agency resources as well as a small number of part-time and consultant resources to meet our operational needs and our turnover is in line with similar businesses in our industry and locations.
Our Purpose and Core Values
Our human capital management strategy is guided by our purpose and core values. Our purpose is Serving Patients, Improving Lives. Our core values are Patient First, Teamwork, Innovation, Integrity & Compliance, Accountability & Transparency, and Commitment to Excellence. We believe that our purpose and core values provide clarity, a shared language, and ultimately create what is distinctive about our company and our culture. We are motivated to bring our best to ANI every day by the patients we serve, the people we work with, the direct impact we have on the work, and the learning, growth and development opportunities we provide.
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Culture, Engagement, and Diversity, Equity, and Inclusion
We believe that attracting, retaining, and promoting engagement for talented employees is critical to the success of our business, and we take pride in our values, culture, and communities. We are committed to creating a diverse, equitable, and inclusive work environment within all levels of the business. As of the end of 2024, approximately 42% of our workforce identified as female and approximately 58% identified as male. In the same period, approximately 45% of our workforce identified as a person of color or indigenous person, with approximately 55% identifying as white. Furthermore, we do not tolerate discrimination or harassment on the basis of gender, gender identity, race, ethnicity, or sexual orientation, or the use of child or forced labor. We value employee input, and conduct focus groups and survey employees on specific topics (e.g. approximately 30% of our employees participated in a benefits satisfaction survey in 2024). We offer ongoing training and career development to all employees, both through curriculum developed internally, and through external resources (e.g. LinkedIn Learning). Together, we own our culture and participate in ongoing open dialogue as we strive for continued growth.
We promote employee wellness, and partner with an employee-led Wellness Steering Committee on behavioral, mental, physical, and other aspects of overall wellness. Initiatives include wellness workshops, health fairs, wellness challenges (e.g. walking challenges), and external partnerships. We also provide ongoing support to employees through our Employee Assistance Program and company-wide communications.
At ANI, we believe that no one should go without medicines that they need. In December 2022, we formed the ANI Rare Disease Patient Assistance Program, Inc. for the purpose of providing certain medicine for free to patients in the United States who do not have prescription drug or health insurance coverage and who, without assistance, cannot afford their medicine. In addition, ANI has provided patient-related financial support to nonprofit organizations that are aligned with ANI’s mission to address unmet needs. Our charitable contributions support initiatives and programs that advance medical care or patient care within the Company's therapeutic areas of focus.
Total Rewards
ANI’s Total Rewards Philosophy is grounded in pay for performance and seeks to provide compensation and benefits that are competitive within the pharmaceuticals industry, as well as competitive with local employers for jobs of a cross-industry nature. We pay fair and competitive salaries, short-term incentives, and long-term incentives that are informed by external market rates and internal equity. We recognize and reward employee performance, productivity, and alignment with ANI’s Core Values. We believe that a holistic rewards strategy should also go beyond compensation and benefits to consider elements such as wellness and recognition. We support flexible and remote working arrangements throughout the business.
Health and Safety Management and Training
We are committed to the safety and health of our employees, patient-customers, and the public. It is critical within our mission to ensure we keep our employees and customers safe while accomplishing our business goals. ANI has established a health and safety program with a focus on continuous improvement and employee engagement. ANI personnel are encouraged to take corrective actions where appropriate and to communicate concerns to management with a “see something, say something” approach. We recognize and reward personnel for contributing to the safety system within our working environment. As in prior years, there were no work-related fatalities in 2024. The overall program continually evolves to reflect regulatory changes and compliance standard industry best practices. As part of onboarding new employees, we provide health and safety training and periodic training programs to maintain and improve employee awareness of safety issues. The goal of the safety training programs is to ensure that our staff are well informed on the subject matters and have the appropriate tools to make sound health and safety decisions in our day-to-day operations.
Attendance at Board, Committee, and Annual Stockholders’ Meetings
We expect each director to attend every meeting of the Board and the committees on which he or she serves, and we encourage them to attend the annual meetings of the Stockholders. In 2024, there were a total of 15 Board meetings. None of our current directors who were directors in 2024 attended fewer than 75% of the total number of meetings of the Board and the total number of meetings held by all committees on which he or she served (or during such time as he or she was serving) in 2024. All of the directors who served as a director at the time of the of the 2024 Annual Meeting of Stockholders attended the meeting.
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Anti-Pledging Policy
Because of the risk of inadvertent insider trading violations and Section 16 violations for directors and executive officers, our insider trading policy prohibits margining or pledging Company securities by our directors, officers and other employees who are subject to our policy. At this time, the Company has not adopted a policy regarding the ability of officers, directors and employees to purchase financial instruments (including prepaid variable forward contracts, equity swaps, collars, and exchange funds) or otherwise engage in transactions, that hedge or offset, or are designed to hedge or offset, any decrease in the market value of the Company’s equity securities.
No Hedging Policy
The Company has no standalone policy regarding hedging the economic risks designed to hedge or offset any decrease in the market value of the Company's common stock of equity ownership for its employees, including the executive team or directors of the Company.
The Company’s Insider Trading Policy prohibits employees, including directors and executive officers, from engaging in transactions where such insider is aware of material non-public information, such as equity swaps, puts, calls, caps and collars, and other derivative instruments. The policy also prohibits directors and executive officers from engaging in short sale transactions in the Company’s common stock.
Code of Ethics
We have adopted a Code of Ethics that apply to all of our employees, officers, and directors, including those officers responsible for financial reporting. These standards are designed to deter wrongdoing and to promote honest and ethical conduct. The Code of Ethics is available at our website at https://www.anipharmaceuticals.com/. The Company intends to post on its website all disclosures required by Nasdaq listing rules concerning any amendments to, or waivers from, any provision of the Company’s Code of Ethics. No waivers from the Company’s Code of Ethics were requested or granted during fiscal year ended December 31, 2024.
Insider Trading Policy
The Company’s Insider Trading Policy applies to all employees, directors, and officers of the Company and its subsidiaries. Under the Insider Trading Policy, transactions in puts, calls, or other derivative securities involving the Company’s equity securities, as well as hedging transactions involving the Company’s equity securities, such as collars and forward sale contracts, are prohibited. The Company believes that the Insider Trading Policy is reasonably designed to promote compliance with insider trading laws, rules and regulations, and any listing standards applicable to the Company. A copy of our Insider Trading Policy is filed with our Annual Report on Form 10-K filed with the SEC on February 28, 2025, as Exhibit 19.1.
Policies and Practices Related to the Grant of Certain Equity Awards Close In Time to the Release of Material Nonpublic Information
The Company does not currently grant new awards of stock options, stock appreciation rights, or similar option-like instruments. Accordingly, the Company has no specific policy or practice on the timing of awards of such options in relation to the disclosure of material nonpublic information by the Company. In the event the Company determines to grant new awards of such options, the Board and the Committee will evaluate the appropriate steps to take in relation to the foregoing.
Communications from Stockholders and Other Interested Parties to Directors
Any Stockholder or other interested party who wishes to communicate directly with the Company’s Board of Directors should write to the Company’s Corporate Secretary, c/o ANI Pharmaceuticals, Inc., 500 Alexander Park Drive, Suite 200, Princeton, New Jersey 08540.
Relevant communications will be distributed to any specified director or all directors depending on the facts and circumstances outlined in the individual communication. In accordance with instructions from the Board, the Corporate Secretary reviews, organizes and distributes such communications to the full Board, the independent directors or one or more directors, as appropriate.
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PROPOSAL 2: RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE YEAR ENDING DECEMBER 31, 2025
EisnerAmper LLP (“EisnerAmper”) has served as our independent registered public accounting firm since 2013. The Audit and Finance Committee has once again selected EisnerAmper as our independent registered public accounting firm for the year ending December 31, 2025.
Although it is not required to do so, the Audit and Finance Committee of the Company’s Board wishes to submit the selection of EisnerAmper to Stockholders for ratification. If Stockholders do not ratify the selection of EisnerAmper, the Audit and Finance Committee may reconsider whether it should appoint another independent registered public accounting firm. Even if the selection is ratified by Stockholders, the Audit and Finance Committee may, at its discretion, change the selection at any time during the year, if it determines that such a change would be in the best interests of the Company and its stockholders.
We expect that a representative of EisnerAmper will attend the Annual Meeting, and the representative will have an opportunity to make a statement if he or she so chooses. The representative will also be available to respond to appropriate questions from Stockholders.
Pre-Approval of Audit and Permissible Non-Audit Services
The Audit and Finance Committee has adopted procedures pursuant to which all audit, audit-related and tax services, and all permissible non-audit services provided by the Company’s independent auditor to the Company, are pre-approved by the Audit and Finance Committee. All services rendered by EisnerAmper to the Company during the fiscal year ended December 31, 2024 were permissible under applicable laws and regulations, and all such services provided by EisnerAmper to the Company were approved in advance by the Audit and Finance Committee in accordance with the rules adopted by the SEC.
Fees Billed by Independent Registered Public Accounting Firm
The following table shows the fees and related expenses for audit and other services provided by EisnerAmper LLP in 2024 and 2023. The services described in the following fee table were approved in conformity with the Audit Committee’s pre-approval process.
| 2024 | 2023 | ||||||||||
| Audit Fees | $ | 1,774,500 | $ | 1,297,625 | |||||||
| Audit-Related Fees | — | — | |||||||||
| Tax Fees | — | — | |||||||||
| All Other Fees | — | — | |||||||||
| Total | $ | 1,774,500 | $ | 1,297,625 | |||||||
Audit Fees. This category includes fees for (i) the audit of our annual consolidated financial statements, (ii) reviews of our quarterly condensed consolidated financial statements, and (iii) services that are normally provided by our independent auditors in connection with statutory and regulatory filings or engagements. For fiscal years 2024 and 2023, audit fees consisted of the audit of the Company’s annual financial statements, reviews of financial statements included in the Company’s quarterly reports on Form 10-Q, services provided in connection with the Company’s statutory and regulatory filings, including the review of registration statements and the issuance of consents, and services provided in connection with rendering an opinion under Section 404 of the Sarbanes-Oxley Act of 2002.
Audit-Related Fees. This category includes fees for assurance and related services that are reasonably related to the performance of the audit or review of our consolidated financial statements and are not reported under “Audit Fees.” These services include, but are not limited to, consultations concerning financial accounting and reporting standards and audits in connection with acquisitions.
Tax Fees. This category includes fees for professional services for tax compliance, tax advice, and tax planning. These services include assistance regarding federal, state, and international tax compliance, assistance with tax reporting requirements and audit compliance, tax planning, consulting, and assistance on business restructuring.
All Other Fees. This category includes fees for products and services other than the services reported above.
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The Audit Committee determined that EisnerAmper’s provision of these services, and the fees that we paid for these services, are compatible with maintaining the independence of the independent registered public accounting firm. The Audit Committee pre-approved all services that EisnerAmper provided for fiscal years 2024 and 2023 in accordance with the pre-approval policy discussed above.
Required Vote; Recommendation of the Board
The affirmative vote of a majority of the stock represented and entitled to vote on this Proposal 2, is required to ratify the selection of the appointment of EisnerAmper as the Company’s independent registered public accounting firm for the year ending December 31, 2025.
THE BOARD RECOMMENDS THAT YOU VOTE “FOR” THE RATIFICATION OF THE APPOINTMENT OF EISNERAMPER LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2025.
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AUDIT AND FINANCE COMMITTEE REPORT
The Audit and Finance Committee oversees ANI’s accounting and financial reporting processes and the audit of ANI’s annual financial statements. ANI’s management has the primary responsibility for the financial statements, the reporting process, and maintaining ANI’s system of internal control over financial reporting. EisnerAmper was engaged to perform an independent audit of ANI’s financial statements and to express an opinion on the conformity of those financial statements to generally accepted accounting principles in the United States.
In this context, the Audit and Finance Committee has reviewed and discussed ANI’s audited financial statements prepared for inclusion in ANI’s annual report on Form 10-K for the year ended December 31, 2024 with ANI’s management and with EisnerAmper. The Audit and Finance Committee has also discussed with EisnerAmper the matters required to be discussed under applicable rules of the Public Company Accounting Oversight Board (the “PCAOB”). The Audit and Finance Committee has received from EisnerAmper the written disclosures and letter required by applicable rules of the PCAOB regarding EisnerAmper’s communications with the Audit and Finance Committee concerning independence and has discussed with EisnerAmper its independence from the Company and management. Based on these reviews and discussions described above, the Audit and Finance Committee recommended to the Board, and the Board has approved, the inclusion of ANI’s audited financial statements for the year ended December 31, 2024 in ANI’s annual report on Form 10-K for the year ended December 31, 2024 for filing with the Securities and Exchange Commission.
Submitted by the Audit and Finance Committee
Thomas J. Haughey, Chair
Matthew J. Leonard, R.Ph.
Jeanne A. Thoma
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EXECUTIVE OFFICERS
The names of our executive officers, their ages as of _____, 2025, and their positions are shown below.
| Name | Age | Position | ||||||||||||
| Nikhil Lalwani | 47 | President and Chief Executive Officer | ||||||||||||
| Stephen P. Carey | 54 | Senior Vice President, Finance and Chief Financial Officer | ||||||||||||
| Meredith W. Cook | 51 | Senior Vice President, General Counsel and Corporate Secretary | ||||||||||||
| Krista Davis | 52 | Senior Vice President and Chief Human Resources Officer | ||||||||||||
| Chad Gassert | 49 | Senior Vice President, Corporate Development & Strategy | ||||||||||||
| Ori Gutwerg | 51 | Senior Vice President, Generics | ||||||||||||
| Christopher Mutz | 54 | Senior Vice President, Head of Rare Disease | ||||||||||||
| Thomas Rowland | 59 | Senior Vice President, Head of Established Brands | ||||||||||||
| Muthusamy Shanmugam | 57 | Head of Research & Development and Chief Operating Officer of NJ Operations | ||||||||||||
Nikhil Lalwani, President and Chief Executive Officer. Please see “Proposal 1 — Election of Directors” for Mr. Lalwani’s background and business experience.
Stephen P. Carey has been the Company’s Senior Vice President, Finance and Chief Financial Officer since May 2016, Vice President, Finance from May 2016 to December 2020, Senior Vice President, Finance since December 2020 and served as Corporate Secretary from May 2020 until August 2022. Since August 2018, Mr. Carey has also served as a member of the board of directors of ANI Canada, a subsidiary of the Company. From June 2007 to October 2015, Mr. Carey held various executive financial positions at Par Pharmaceutical Companies, Inc., including Senior Vice President, Controller and Principal Accounting Officer. Prior to that, Mr. Carey held various financial and accounting positions at Schering-Plough Corporation. Mr. Carey has over 30 years of experience as a financial executive, approximately 25 of which are in the pharmaceutical industry. Mr. Carey began his career at PricewaterhouseCoopers. Mr. Carey graduated from Montclair State University with a B.S. in Accounting.
Meredith W. Cook has been the Company’s Senior Vice President, General Counsel and Corporate Secretary since July 2022. Prior to joining ANI, Ms. Cook served as Vice President and Associate General Counsel for Amneal Pharmaceuticals, Inc. from March 2020 to July 2022, where she was responsible for corporate and strategic transactions across all business units, with additional responsibilities related to corporate governance, commercial contracts, employment matters, and overall IP strategy, and as Vice President, Transactions from January 2019 to March 2020. Prior to Amneal Pharmaceuticals, Ms. Cook served as Global Legal Head, M&A, Business Development and Strategic Transactions for Dr. Reddy’s Laboratories, Inc. She was previously with Morgan, Lewis & Bockius, LLP and Vinson & Elkins, LLP. Ms. Cook earned an A.B. in East Asian Studies from Princeton University and a J.D. from Tulane Law School.
Krista Davis has been the Company’s Senior Vice President and Chief Human Resources Officer since September 2022. Ms. Davis brings over 20 years of executive leadership experience in human resources, talent management, and organizational development. Prior to joining ANI, Ms. Davis served as a global Head of People & Organization ("P&O") for the Novartis Technical Operations Division from September 2020 to September 2022, where she led P&O for the Global Cell & Gene platforms. From September 2017 to September 2020, Ms. Davis held various other senior executive roles with Novartis. She also sat on the Global P&O divisional leadership team, the Cell & Gene leadership team, and on the US P&O board. Prior to Novartis, Ms. Davis was Global Director, Leadership and Talent Management at A.T. Kearny. She also served previously as VP, Head of HR for North America at Reckitt Benckiser, and in a variety of leadership roles at Catalent Pharma Solutions, Biovail Pharmaceuticals, and Dun & Bradstreet. Ms. Davis earned a B.A. from McGill University and a M.A. in Educational Technology from Concordia University, Montreal, Canada.
Chad Gassert has been the Company’s Senior Vice President, Corporate Development & Strategy since November 2021. Mr. Gassert most recently served as Chief Executive Officer of Novitium from June 2016, when he co-founded Novitium, to November 2021. Prior to co-founding Novitium, Mr. Gassert began his career at Par in 2005, where he led the company’s generic business development efforts. Mr. Gassert has nearly two decades of experience in the pharmaceutical industry, serving in positions in product development, manufacturing operations, project management, and business development. Mr. Gassert graduated with a B.A. in nutritional science from the University of Delaware.
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Ori Gutwerg has been the Company’s Senior Vice President, Generics since February 2021. He has over 17 years of experience in the pharmaceutical industry. Prior to joining ANI, Mr. Gutwerg was Vice President, Head of US Generics Rx of Taro Pharmaceutical Industries Ltd. (“Taro”) from April 2019 to February 2021, where he was responsible for Taro’s US Generic Rx business, including developing and executing strategies to meet targets, promoting sales growth, and building the pipeline portfolio. Mr. Gutwerg also held positions with Xiromed US from October 2014 to March 2019, Perrigo Pharmaceuticals from March 2005 to September 2014 and Agis Group from November 2003 to March 2005. Mr. Gutwerg holds a B.S. in Communications and Economics from the Tel Aviv College of Management and an M.B.A. from the Leon Recanati Graduate School of Business Administration, Tel Aviv University.
Christopher K. Mutz has been the Company’s Senior Vice President, Head of Rare Disease since February 2021. From May 2019 to January 2021, Mr. Mutz provided consulting services to pharma/biotech companies on pre-launch commercial strategy and life cycle management focused on rare diseases, and provided collaboration and consulting services to multiple early stage companies focused on rare diseases and oncology. Mr. Mutz has more than 25 years of experience in the pharmaceutical industry, including eight years at Alexion Pharmaceuticals and 10 years at Merck and Co. ("Merck"). From November 2011 to April 2019, Mr. Mutz held various leadership positions in sales and marketing business units at Alexion and led U.S. commercial operations and strategy, which achieved two breakthroughs in ultra-rare enzyme replacement therapies, and led the strategy for the launch of SOLIRIS® for the treatment of two rare diseases. While at Merck, from September 2001 to November 2011, Mr. Mutz held various marketing positions, including as leader of the oncology team at Merck’s China subsidiary to support marketed products, and was awarded the Merck Division Award for outstanding contribution, and as a Senior Director, U.S. Marketing of TEMODAR, a treatment for certain types of brain tumors. Mr. Mutz holds a B.A. in Biology from the University of Virginia and an M.B.A. from Cornell University.
Thomas Rowland has been the Company’s Senior Vice President, Head of Established Brands since November 2021. From October 2012 until October 2021, Mr. Rowland was the President and Chief Operating Officer of Arbor Pharmaceuticals, a specialty pharmaceuticals company with a portfolio across multiple therapeutic areas. Prior to that, Mr. Rowland was Chief Business Officer at Ventrus Biosciences, a development stage company focused in gastroenterology. Mr. Rowland has more than 30 years of experience in pharmaceutical operations, including in leading commercial organization as large as 650 personnel and revenue up to $500 million. Mr. Rowland has also lead development team, regulatory, quality and manufacturing functions. Mr. Rowland holds a B.S. in Finance from Metropolitan State University.
Muthusamy Shanmugam, Head of Research & Development and Chief Operating Officer of NJ Operations. Please see “Proposal 1 — Election of Directors” for Mr. Shanmugam’s background and business experience.
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EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
This Compensation Discussion and Analysis section, or CD&A, is designed to provide our stockholders with an explanation of our executive compensation philosophy and objectives, our 2024 executive compensation program and the compensation paid by the Company to the following named executive officers in 2024, referred to throughout this Proxy Statement as our “NEOs”:
| Executive | Position | |||||||
| Nikhil Lalwani | President and Chief Executive Officer (“CEO”) | |||||||
| Stephen P. Carey | Senior Vice President, Finance and Chief Financial Officer | |||||||
| Christopher K. Mutz | Senior Vice President, Head of Rare Disease | |||||||
| Ori Gutwerg | Senior Vice President, Generics | |||||||
| Meredith W. Cook | Senior Vice President, General Counsel and Corporate Secretary | |||||||
EXECUTIVE SUMMARY
We are a diversified bio-pharmaceutical company. Our objective is to build a sustainable and growing biopharmaceutical company serving patients in need and creating long-term value for our investors. Our overall strategy is enabled by an empowered, collaborative, and purposeful team with high performance-orientation that seeks to deliver on our purpose of “Serving Patients, Improving Lives.”
On September 16, 2024, we completed our previously announced acquisition of Alimera Sciences, Inc. ("Alimera"), a Delaware corporation, pursuant to the terms of the Agreement and Plan of Merger (the "Merger Agreement"), dated as of June 21, 2024, by and among the Company, Alimera and ANIP Merger Sub INC., a Delaware corporation and wholly-owned subsidiary of the Company ("Merger Sub"). Pursuant to the Merger Agreement, Merger Sub merged with and into Alimera, with Alimera surviving the merger as a wholly-owned subsidiary of the Company. In connection with the acquisition, we added two new products, ILUVIEN and YUTIQ, both of which are indicated for the treatment of chronic retinal diseases.
We own and operate three pharmaceutical manufacturing facilities, of which two are located in Baudette, Minnesota, and one is located in East Windsor, New Jersey. These three facilities together are capable of producing oral solid dose products, as well as semi-solids, liquids and topicals, controlled substances, and potent products that must be manufactured in a fully-contained environment.
2024 Financial Performance
Fiscal 2024 was a record year of growth for ANI. Our net revenues totaled $614.4 million for the year ending 2024, an increase of over $127.6 million, and nearly 26.2% year-over-year. We generated $64.0 million in operating cash flow during 2024, and ended the year with $144.9 million in cash.
Following the acquisition of Alimera and in accordance with FASB ASC 280, Segment Reporting, the Company has reorganized the segment information that is regularly provided to the chief operating decision maker. Starting in the fourth quarter, the Company is now organized into two reportable segments as follows:
•Rare Disease and Brands: Consists of Rare Disease products Cortrophin Gel, ILUVIEN, and YUTIQ, and a portfolio of approximately 16 branded products that were previously included in Established Brands.
•Generics and Other: Consists of generic pharmaceutical products including those sold through traditional wholesale and retail sales channels, sales of contract manufactured products, royalties on contract manufactured products, and revenue from product development services.
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Rare Disease and Brands
•Net revenues for rare disease pharmaceutical products, include Cortrophin Gel and a full quarter contribution from ILUVIEN and YUTIQ, were $229.6 million during the year ended December 31, 2024, an increase of $117.5 million from $112.1 million for the same period in 2023. This increase was driven by increased volume in this third year of launch of Cortrophin Gel (product was launched in late January 2022) from overall ACTH market growth and share growth, and a full quarter of sales from ILUVIEN and YUTIQ, as a result of the acquisition of Alimera on September 16, 2024.
•Net revenues for brands portfolio of pharmaceutical products were $64.7 million during the year ended December 31, 2024, a decrease of $20.6 million compared to $85.4 million for the same period in 2023, driven by a net decrease in volume.
Generics and Other
•Generic pharmaceutical products net revenues were $301.0 million during the year ended December 31, 2024, an increase of $31.6 million over the prior year. This increase was driven by increased volumes on the base business, increased volumes from the full year benefit of 2023 launches in 2024, and 2024 new product launches. The Company launched a total of 17 new products in 2024.
2024 Executive Compensation Overview
The major decisions made by our Compensation Committee and Board in 2024 with respect to executive compensation are summarized below. For details, please refer to the “2024 EXECUTIVE COMPENSATION PROGRAM IN DETAIL” section in this CD&A.
| Base Salary | The Compensation Committee, after considering the market practice survey data of our peer group provided by our independent compensation consultant, increased the base salaries for each of our NEOs ranging from 0% to 11% for 2024. | ||||
| Annual Incentives | For 2024, the Compensation Committee approved an Executive Incentive Bonus Plan (the “Bonus Plan”) that incorporates financial and strategic performance goals. The CEO’s annual incentive is based 100% on corporate performance and the other NEOs are based on a mix of corporate performance and functional/group performance. Based on the Company’s performance results for 2024, as well as functional/group performance, the Compensation Committee approved bonus payouts of 200% of target opportunities for all NEOs. | ||||
| Long-Term Incentives | For 2024, the Compensation Committee included the use of performance-based restricted stock units (“PSUs”) and approved long-term equity grants to the NEOs for 2024. The Compensation Committee approved target long-term equity incentives using a mix of 25% PSUs and 75% time-based restricted stock awards (“RSAs”) for all of the NEOs. PSUs may be earned based on the achievement of two different performance metrics — Adjusted EBITDA Growth and relative Total Shareholder Return (“TSR”). | ||||
2024 Say on Pay Results and Stockholder Engagement
Our Compensation Committee and Board are very interested in the ideas and any concerns of our stockholders regarding executive compensation. An advisory vote on executive compensation was presented to our stockholders at last year’s Annual Meeting of Stockholders and was approved by 95.5% of votes cast by stockholders. As our business and executive compensation program continue to evolve, we will also continue to consider the feedback we receive from our stockholders as well as the outcome of say-on-pay votes when making executive compensation decisions.
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Compensation Governance Highlights
We also believe the following practices and policies promote sound compensation governance and are in the best interests of our stockholders and executives:
| What We Do | What We Don’t Do | |||||||||||||
| þ | Evaluate and reward performance against pre-determined goals | x | No fixed terms/guaranteed increases in employment agreements or equity grants | |||||||||||
| þ | Emphasize significant variable (“at risk”) compensation for our CEO and NEOs | x | No excessive cash severance | |||||||||||
| þ | Maintain a “clawback” policy | x | No repricing or exchange of underwater options without stockholder approval | |||||||||||
| þ | Use an independent compensation consultant | x | No special perquisites | |||||||||||
| þ | Maintain stock ownership guidelines | x | No supplemental executive retirement plan | |||||||||||
| þ | Hold an annual say-on-pay vote | x | No dividends or dividend equivalents on unvested equity awards | |||||||||||
| þ | Conduct an annual compensation risk assessment | |||||||||||||
| þ | Include “double trigger” equity vesting benefits to our CEO | |||||||||||||
| þ | Include “double trigger” cash severance benefits to all of our NEOs, including our CEO | |||||||||||||
WHAT GUIDES OUR PROGRAM
Our Compensation Philosophy and Objectives
•Attract and retain: Offer a total compensation program that flexibly adapts to changing economic, regulatory and organizational conditions, and takes into consideration the compensation practices of peer companies
•Pay for performance: Provide a significant portion of compensation through variable compensation that is at-risk and tied to our financial performance, strategic objectives or stock price
•Align executive interests with our stockholders: A significant portion of total compensation is either earned based on our overall financial and operating performance or varies based on our stock price, which contributes to value creation for our stockholders
Elements of Pay: Total Direct Compensation
Our compensation philosophy is supported by the following principal elements of pay:
| Pay Element | How It’s Paid | Purpose | ||||||||||||
| Base Salary | Cash (Fixed) | Provide a competitive base salary rate relative to similar positions in the market and enable the Company to attract and retain critical executive talent. | ||||||||||||
| Annual Incentives | Cash (Variable) | Create an incentive for the achievement of pre-defined annual business and individual objectives. | ||||||||||||
| Long-Term Incentives | Equity (Variable) | Align interests of employees with stockholders; create focus on long-term performance and creating stockholder value; support the Company’s retention strategy. | ||||||||||||
Pay Mix
The following charts provide a breakdown of the target total direct compensation opportunities for our CEO and our other NEOs in 2024. Target total direct compensation includes annualized base salary, target bonus opportunity, and grant date fair value of equity awards.
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The Decision-Making Process
The Role of the Compensation Committee
The Compensation Committee oversees the executive compensation program for our executive officers, including the NEOs. The Compensation Committee is comprised of independent, non-employee members of the Board. The Compensation Committee works very closely with its independent consultant and management to examine the effectiveness of the Company’s executive compensation program throughout the year. Details of the Compensation Committee’s authority and responsibilities are specified in its charter, which may be accessed at https://investor.anipharmaceuticals.com/corporate-governance/governance-documents. The Compensation Committee makes all final compensation and equity award decisions regarding our executive officers, including the NEOs, except for the CEO, whose compensation is determined by the independent members of the full Board, based upon recommendations of the Compensation Committee.
The Role of Management
Our CEO and other key members of our management team, such as our Chief Human Resources Officer, Chief Financial Officer and General Counsel, attend meetings as needed where executive compensation, Company and individual performance, and competitive compensation levels and practices are discussed and evaluated. The Compensation Committee considers any input it may receive from our CEO in evaluating the performance of each executive officer (other than our CEO) and approves each executive officer’s compensation. The CEO does not participate in the deliberations of the Compensation Committee regarding his own compensation. The Compensation Committee reviews and discusses the Board’s evaluation of our CEO and makes recommendations to the Board. The independent members of the Board make all final determinations regarding CEO compensation.
The Role of the Independent Compensation Consultant
The Compensation Committee engages an independent compensation consultant to provide expertise on competitive pay practices, program philosophy and design. Pursuant to authority granted to it under its charter, the Compensation Committee has hired Pearl Meyer & Partners, LLC (“Pearl Meyer”) as its independent consultant. Pearl Meyer reports directly to the Compensation Committee and does not provide any additional services to management. The Compensation Committee has conducted an independence assessment of Pearl Meyer in accordance with NASDAQ rules and did not find any conflict of interest.
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Fiscal 2024 Peer Group
The Compensation Committee strives to set a competitive level of total compensation for each NEO as compared with executive officers in similar positions at peer companies. In setting 2024 target compensation levels for the NEOs, the Company used the peer group detailed below. This peer group was determined by the Compensation Committee based on an in-depth review by its independent compensation consultant, which included an assessment of potential comparators to evaluate the degree to which the current peers have kept pace with the Company’s growth and evolution and an examination of the broader marketplace to identify appropriate and relevant additions to the peer group.
In conjunction with the recommendation of its independent compensation consultant, the Compensation Committee used a combination of proxy peer group and industry compensation surveys to identify competitive market compensation practices and the Company’s overall competitive position. Selection criteria for determining the Company’s compensation peer group includes companies operating in the biotechnology and pharmaceutical industries with revenues and enterprise values ranging from 1/3 to 3x the size of the Company. The Compensation Committee also reviews other factors, including market capitalization, profitability status, and business comparability to the Company, when determining the compensation peer group.
After this in-depth analysis, and at the recommendation of Pearl Meyer, the Compensation Committee approved the removal of Lannett Company, Inc. and Vanda Pharmaceuticals Inc. and the addition of Ultragenyx Pharmaceutical Inc. for 2024. The resulting 2024 peer group of 16 companies is shown below:
| 2024 Peer Group | ||||||||||||||
| Amphastar Pharmaceuticals, Inc. | Eagle Pharmaceuticals, Inc. | PTC Therapeutics, Inc. | ||||||||||||
| BioCryst Pharmaceuticals, Inc. | Insmed Incorporated | Supernus Pharmaceuticals, Inc. | ||||||||||||
| Catalyst Pharmaceuticals, Inc. | Intercept Pharmaceuticals, Inc. | Travere Therapeutics, Inc. | ||||||||||||
| Coherus BioSciences, Inc. | Ironwood Pharmaceuticals, Inc. | Ultragenyx Pharmaceutical Inc. | ||||||||||||
| Collegium Pharmaceutical, Inc. | Myriad Genetics, Inc. | |||||||||||||
| Corcept Therapeutics Incorporated | Pacira BioSciences, Inc. | |||||||||||||
2024 EXECUTIVE COMPENSATION PROGRAM IN DETAIL
Base Salary
Base salary represents annual fixed compensation and is a standard element of compensation necessary to attract and retain executive leadership talent. In making base salary decisions, the Compensation Committee considers the CEO’s recommendations, as well as each NEO’s position and level of responsibility within the Company. The Committee takes into account factors such as relevant market data as well as individual performance and contributions. The Compensation Committee, after considering the market practices, approved the 2024 base salaries for each of our NEOs as shown in the table below:
| Name | 2023 Base Salary ($) | 2024 Base Salary ($) | % Increase | |||||||||||||||||
| Nikhil Lalwani | 772,335 | 803,229 | 4.0 | % | ||||||||||||||||
Stephen P. Carey (1) | 509,850 | 509,850 | — | |||||||||||||||||
Christopher K. Mutz (2) | 428,480 | 455,000 | 6.2 | % | ||||||||||||||||
| Ori Gutwerg | 449,904 | 467,900 | 4.0 | % | ||||||||||||||||
Meredith W. Cook (3) | 378,000 | 420,000 | 11.1 | % | ||||||||||||||||
(1) Mr. Carey's salary was determined to be competitive with market, and therefore an increase was not recommended by the Compensation Committee
(2) The increase for Mr Mutz was approved by the Compensation Committee to improve his competitive position relative to executives with comparable roles in the compensation peer group and to recognize his strong performance in 2023.
(3) The increase for Ms. Cook was approved by the Compensation Committee to improve her competitive position relative to executives with comparable roles in the compensation peer group and to recognize her strong performance in 2023.
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Executive Incentive Bonus Plan
The Executive Incentive Bonus Plan (the “Bonus Plan”) provides for the payment of annual cash incentive awards to eligible participants. The purpose of the Bonus Plan is to motivate and reward eligible officers and employees of the Company, including the NEOs, for their contributions toward the achievement of certain corporate and/or functional performance goals. Each NEO’s target award opportunity is based on a percentage of their base salary. Actual award payouts are based on performance results and cannot exceed 200% of target award opportunity. Target award opportunities for 2024 are outlined below:
| Name | Base Salary ($) | Target Incentive Opportunity (% of Salary) | Cash Target Bonus Opportunity ($) | |||||||||||||||||
| Nikhil Lalwani | 803,229 | 100% | 803,229 | |||||||||||||||||
| Stephen P. Carey | 509,850 | 60% | 305,910 | |||||||||||||||||
| Christopher K. Mutz | 455,000 | 50% | 227,500 | |||||||||||||||||
| Ori Gutwerg | 467,900 | 50% | 233,950 | |||||||||||||||||
| Meredith W. Cook | 420,000 | 50% | 210,000 | |||||||||||||||||
For 2024, actual award payouts were based on the achievement of predetermined financial and strategic corporate and/or functional performance objectives as approved by the Compensation Committee. The CEO’s award is 100% based on corporate performance and the other NEOs are based on corporate performance, as well as results in their respective functional/group areas as shown in the table below.
| Level | Corporate Performance | Functional / Business Unit Performance | ||||||||||||
| CEO | 100% | — | ||||||||||||
| Other NEOs | 70% | 30% | ||||||||||||
Corporate Performance Results
Corporate performance is measured using a combination of financial and strategic objectives. For 2024, our corporate objectives were based on target revenue, adjusted EBITDA and key performance metrics for our Generics and Rare Disease business units, as well as business development and overall company-wide efficiency targets. We feel that these factors most closely correlate with our operating performance.
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Our 2024 corporate objectives and weightings are highlighted below:
| 2024 Objective | Weighting | |||||||
| Financial Objectives: | ||||||||
•Net Revenues: $501 million – $530 million | 25% | |||||||
•Adjusted non-GAAP EBITDA: $119 million – $134 million | 25% | |||||||
| Generics, Established Brands, and Other: | ||||||||
•Complete multiple ANDA filings and drive prioritized complex generics development •Strengthen product pipeline and drive significant growth in the government channel •Achieve milestones for the pilot commercialization model for new brands launched •Expand manufacturing footprint in New Jersey and conclude Oakville sale | 15% | |||||||
| Rare Disease: | ||||||||
•Drive planned team expansion and indication specific expansions •Execute on planned research studies and clinical trials in key indications •Continuously strengthen compliance across all business activities and retain strong culture | 15% | |||||||
| Company-Wide Efficiency, Effectiveness, Controls & Compliance: | ||||||||
•Reduce procurement expenses by $5 million and continue scaling up international operations •Strengthen cyber-security & key systems and processes •Continue building ANI United culture with common understanding and integration of values and purpose in daily work | 10% | |||||||
| Corporate Development & Strategy: | ||||||||
•Successfully complete a Rare Disease M&A deal and integration •Opportunistic business development for Generics and Brands | 10% | |||||||
| Total | 100% | |||||||
Based on our performance against our corporate objectives described above, the Compensation Committee determined that the corporate performance objectives were achieved at 200% of target, including the below financial objectives:
| Weighting | Assessment Results / Achievements | Payout Factor (% of Target) | ||||||||||||
| 50% | •Revenues of $614.4 million •Adjusted Non-GAAP EBITDA of $156.0 million | 200% | ||||||||||||
In addition, the Compensation Committee determined that the business objectives were achieved at 200% of target, including with respect to the below:
•The Rare Disease and Brands business demonstrated strong commercial execution for the Company's flagship product Cortrophin Gel and launched the 1-mL vial for Acute Gouty Arthritis, as well as further expanded the commercial and sales teams into the key strategic areas of pulmonology and ophthalmology. In addition, the Rare Disease business unit launched a Promotional Speaker Program bureau across four specialties and initiated research studies as well as strengthened the compliance function in several key areas.
•The Generics and Other business overachieved their target by launching 17 products in 2024 in addition to strengthening the Generics pipeline.
•On the operations side, the Company expanded its India and Europe operations and strengthened the Finance organization as well as realized substantial procurement savings.
•Strategically, the Company successfully strengthened its capital structure and made significant progress in identifying strategy for business development and acquisitions.
•Finally, the Company defined our Purpose & Values and continued efforts to strengthen the culture of ANI across all areas.
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Functional Performance Results
In assessing the functional performance of our NEOs (other than our CEO), the Compensation Committee, with the input of the CEO, considered each officer’s individual contributions to the completion of our corporate goals, and the officer’s individual accomplishments in helping to execute on our strategy within their respective functions. The cash incentive payments to our NEOs were all made at 200%. In approving the cash incentive payments above the target level, the Compensation Committee and the Board considered the relative performance of the individual relative to his or her functional or business unit performance.
| Name | Accomplishments | |||||||
| Stephen P. Carey | Supported businesses in achievement of record financial year; successfully completed an acquisition and strengthened the Company’s capital structure; supported key initiatives: Rare Disease M&A; strengthening of IT and cybersecurity | |||||||
| Christopher K. Mutz | Drove Rare Disease overperformance at $229.6 million in sales; drove commercial diligence, synergy identification and post closing, organization restructuring and synergy capture; strengthened compliance program and monitoring of key risk areas | |||||||
| Ori Gutwerg | Drove Generics revenue overperformance at $301.0 million in sales; identified and captured multiple opportunities from supply disruptions; continued innovative partnerships with Good Rx, McKesson Global, North Star | |||||||
| Meredith W. Cook | Supported business in achievement of record financial year; successfully completed M&A diligence, deal execution, and integration; launched key litigation efforts and IP support | |||||||
2024 Bonus Plan Payouts
The actual cash incentive awards earned by our NEOs for 2024 based on the performance results described above are set forth below.
| Name | Cash Target Bonus Opportunity ($) | Corporate Performance Achievement | Corporate Performance Weight | Functional Performance Achievement | Functional Performance Weight | Actual Cash Incentive Payout (% of Target) | Actual Cash Incentive Payout ($) | |||||||||||||||||||||||||||||||||||||
| Nikhil Lalwani | 803,229 | 200 | % | 100 | % | — | — | 200 | % | 1,606,457 | ||||||||||||||||||||||||||||||||||
| Stephen P. Carey | 305,910 | 200 | % | 70 | % | 200 | % | 30 | % | 200 | % | 611,820 | ||||||||||||||||||||||||||||||||
| Christopher K. Mutz | 227,500 | 200 | % | 70 | % | 200 | % | 30 | % | 200 | % | 455,000 | ||||||||||||||||||||||||||||||||
| Ori Gutwerg | 233,950 | 200 | % | 70 | % | 200 | % | 30 | % | 200 | % | 467,900 | ||||||||||||||||||||||||||||||||
| Meredith W. Cook | 210,000 | 200 | % | 70 | % | 200 | % | 30 | % | 200 | % | 420,000 | ||||||||||||||||||||||||||||||||
Long-Term Incentive Program
2024 Equity Awards
In furtherance of our pay for performance philosophy and culture, we grant equity awards to our NEOs on an annual basis. As part of the annual review cycle, our Compensation Committee continued the use of PSUs and approved a grant of 25% PSUs, which cliff vest after three years, and 75% restricted stock that vests annually over four years, subject to continued employment.
Factors used to determine the size of these awards included with no particular weighting: (i) the responsibilities, past performance, and anticipated future contributions of the NEO; (ii) the competitiveness of the NEO’s overall compensation package with reference to peer group practices; (iii) the NEO’s existing equity holdings; (iv) the extent to which these holdings are vested; (v) the recommendations of our CEO (other than with respect to his own grant); and (vi) our “burn rate” relative to our industry burn rate guidelines, per certain stockholder and proxy advisor methodologies.
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The following table summarizes the number of shares and targeted value of the restricted stock awards and PSUs granted to the NEOs in 2024:
| Restricted Stock Awards | Performance Stock Units | |||||||||||||||||||||||||||||||
| Name | Shares(1) | Target Value ($) | Shares (at Target)(1) | Target Value ($) | Total Target Value ($) | |||||||||||||||||||||||||||
| Nikhil Lalwani | 80,530 | 4,500,000 | 26,843 | 1,500,000 | 6,000,000 | |||||||||||||||||||||||||||
| Stephen P. Carey | 21,474 | 1,200,000 | 7,158 | 400,000 | 1,600,000 | |||||||||||||||||||||||||||
| Christopher K. Mutz | 18,790 | 1,050,000 | 6,263 | 350,000 | 1,400,000 | |||||||||||||||||||||||||||
| Ori Gutwerg | 14,763 | 825,000 | 4,921 | 275,000 | 1,100,000 | |||||||||||||||||||||||||||
| Meredith W. Cook | 14,763 | 825,000 | 4,921 | 275,000 | 1,100,000 | |||||||||||||||||||||||||||
(1) The number of shares were determined by dividing the target award values by the volume-weighted average fair market value of our common stock over the 30 trading days up to and including the grant date. Values shown in the table above may differ from the values shown in the Summary Compensation Table and Grants of Plan-Based Awards.
The 2024 PSUs are 50% based on performance against our three-year Adjusted EBITDA Year-on-Year Growth Rate, and the remaining 50% are based on our three-year relative TSR against the constituents of the S&P 600 Pharmaceuticals, Biotechnology and Life Sciences Index. Performance will be measured from January 1, 2024 to December 31, 2026, and the PSUs will cliff vest following the end of the performance period upon the Compensation Committee’s certification of actual results.
The PSUs have a threshold payout of 50% of target and a maximum payout of 200% of target, and the payout for the relative TSR PSUs will be capped at target if our stock price performance is negative over the performance period.
Stock Ownership Guidelines
The Board of Directors believes that the Company’s most senior executives (including its NEOs) should hold meaningful equity ownership positions in the Company, in part to align the NEOs’ interests with those of the Company’s stockholders. Under the stock ownership guidelines, each NEO is required to hold shares of the Company’s stock as set forth below:
| Title | Multiple of Annual Base Salary | |||||||
| Chief Executive Officer | Four (4) Times | |||||||
| All Other Executive Officers | One (1) Times | |||||||
Executives must comply with these guidelines within five years from the later of their executive officer designation and becoming subject to the guidelines. The guidelines were put into place in April 2021. The stock ownership total includes common stock directly owned, vested or unvested restricted stock awards, vested performance stock units or awards, shares underlying vested stock options, and shares owned indirectly if the executive officer has an economic interest (including shares held by the executive’s spouse, dependent children and/or certain trusts). Unvested shares underlying stock options or unvested performance stock units are not included in the stock ownership total. All of our executive officers have achieved the guidelines.
Clawback Policy
On December 2, 2023, the Compensation Committee adopted the Dodd-Frank Clawback Policy, which is designed to comply with Section 10D-1 of the Exchange Act and the applicable listing standards of Nasdaq. The Dodd-Frank Clawback Policy requires the Company to recoup any erroneously awarded incentive-based compensation received by certain executives, including each NEO, in the event the Company is required to prepare an accounting restatement due to material noncompliance with any financial reporting requirement under the federal securities laws. The Dodd-Frank Clawback Policy generally applies to all incentive-based compensation received by a covered executive during the three completed fiscal years immediately preceding the date that the Company is required to prepare a restatement after the policy's effective date. The Dodd-Frank Clawback Policy was filed as an exhibit to the Company's annual report on Form 10-K for the year ended December 31, 2024 (referred to therein as the "ANI Pharmaceuticals, Inc. Amended and Restated Clawback Policy").
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Other Executive Benefits and Perquisites
During 2024, we provided the following benefits to our NEOs on the same basis as our other eligible employees:
•health insurance;
•vacation, personal holidays and sick days;
•short-term and long-term disability insurance; and
•a 401(k) retirement plan, including a company match.
We believe these benefits are generally consistent with those offered by other companies and specifically with those companies with which we compete for employees.
We also provide Company-paid life insurance premiums for those executives that have elected them.
Termination and Change of Control Benefits
Our Compensation Committee believes that reasonable severance payments and benefits are necessary to attract and retain executives and are important in incentivizing them to pursue a change in control transaction if it is in the best interest of our stockholders, even if it creates uncertainty for them. As such, and consistent with peer practices, we have termination and change in control provisions in the employment agreements that we have entered into with each of our NEOs.
Our “double-trigger” provisions in the employment agreements preserve morale and productivity, and encourage executive retention in the event of a change in control. They are also designed to (i) provide reasonable compensation to executive officers who leave our Company under certain circumstances to facilitate their transition to new employment, and (ii) require a departing executive officer to sign a separation and release agreement acceptable to us as a condition to receiving post-employment compensation payments or benefits.
For information regarding the change in control benefits for our NEOs, please refer to the section of this Proxy Statement titled “Potential Payments Upon Termination or Change of Control.”
Tax Considerations
Section 162(m) of the Code generally prohibits any publicly held corporation from taking a federal income tax deduction for compensation paid in excess of $1 million in any taxable year to the CEO and the other “covered employees” as defined in the rule. While considering tax deductibility as only one of several considerations in determining compensation, the Committee believes that the tax deduction limitation should not compromise its ability to structure compensation programs that provide benefits to the Company that outweigh the potential benefit of a tax deduction and, therefore, may approve compensation that is not tax deductible for tax purposes.
Compensation Risk Assessment
The Compensation Committee assessed our compensation philosophy and objectives, and forms of compensation and benefits for all employees, including executives, and has concluded that our compensation policies and practices do not create risks that are reasonably likely to have a material adverse effect on our Company.
The Compensation Committee believes that the design and objectives of our executive compensation program provide an appropriate balance of incentives for our NEOs, thereby discouraging them from taking inappropriate risks. Among other things, our executive compensation program includes the following design features:
•A balanced mix of cash and equity, as well as appropriately balanced fixed (base salary) and variable compensation (cash incentives and equity-based awards)
•A mix of short-term and long-term incentives, with long-term incentives currently representing a significantly higher proportion of the total mix
•Cash and equity incentives solely based on achieving a mix of financial, strategic, and market-based performance objectives
•Cash and equity awards subject to SEC/NASDAQ compliant “clawback” policy implemented in 2023
•Caps on annual cash incentive and PSU payouts
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•Robust stock ownership guidelines which align the interests of our executive officers with those of our stockholders
•General adherence with prevalent low-risk pay practices
•Strong Say on Pay support over last three years
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Compensation Committee Report
The information contained in the following report of the Company’s Compensation Committee is not considered to be “soliciting material,” “filed” or incorporated by reference in any past or future filing by the Company under the Securities Exchange Act of 1934 or the Securities Act of 1933 unless and only to the extent that the Company specifically incorporates it by reference.
The Compensation Committee has reviewed and discussed with management the Compensation Discussion and Analysis (“CD&A”) contained in this Proxy Statement. Based on this review and discussion, the Compensation Committee has recommended to the Board of Directors that the CD&A be included in this Proxy Statement and incorporated into the Company’s annual report on Form 10-K for the year ended December 31, 2024.
Submitted by the Compensation Committee
Antonio R. Pera, Chair
Renee P. Tannenbaum, Pharm.D
Jeanne A. Thoma
Compensation Committee Interlocks and Insider Participation
In 2024, the members of our Compensation Committee were Antonio Pera, Chair, Renee Tannenbaum, and Jeanne Thoma. None of the members of our Compensation Committee in 2024 was at any time during 2024 or at any other time an officer or employee of the Company or any of its subsidiaries, and none had or have any relationships with the Company that are required to be disclosed under Item 404 of Regulation S-K. None of the Company’s executive officers has served as a member of the Board of Directors, or as a member of the compensation or similar committee, of any entity that has one or more executive officers who served on our Board of Directors or Compensation Committee during 2024.
Summary Compensation Table
The following table sets forth information with respect to the compensation earned or awarded by the Company to its named executive officers (“NEOs”) for each of the last three or fewer fiscal years in which they were a NEO.
Name and Principal Position(1) | Year | Salary ($) | Bonus ($) | Stock Awards ($)(2) | Option Awards ($) | Non-Equity Incentive Plan Compensation($)(3) | All Other Compensation ($)(4) | Total ($) | ||||||||||||||||||||||||||||||||||||||||||
Nikhil Lalwani President and Chief Executive Officer | 2024 | 794,914 | — | 6,420,231 | — | 1,606,457 | 37,800 | 8,859,402 | ||||||||||||||||||||||||||||||||||||||||||
| 2023 | 764,341 | — | 5,756,142 | — | 1,544,670 | 13,200 | 8,078,353 | |||||||||||||||||||||||||||||||||||||||||||
| 2022 | 736,812 | — | 3,806,102 | — | 556,973 | 12,200 | 5,112,087 | |||||||||||||||||||||||||||||||||||||||||||
Stephen P. Carey Senior Vice President and Chief Financial Officer | 2024 | 509,857 | — | 1,712,015 | — | 611,820 | 16,776 | 2,850,468 | ||||||||||||||||||||||||||||||||||||||||||
| 2023 | 509,857 | — | 1,465,142 | — | 584,289 | 16,800 | 2,576,088 | |||||||||||||||||||||||||||||||||||||||||||
| 2022 | 505,859 | — | 1,288,585 | — | 229,432 | 15,708 | 2,039,584 | |||||||||||||||||||||||||||||||||||||||||||
Christopher K. Mutz Senior Vice President, Head of Rare Disease | 2024 | 447,863 | — | 1,498,009 | — | 455,000 | 16,800 | 2,417,672 | ||||||||||||||||||||||||||||||||||||||||||
| 2023 | 424,050 | — | 1,046,532 | — | 428,480 | 15,389 | 1,914,451 | |||||||||||||||||||||||||||||||||||||||||||
| 2022 | 408,772 | — | 739,041 | — | 144,200 | 12,200 | 1,304,213 | |||||||||||||||||||||||||||||||||||||||||||
Ori Gutwerg Senior Vice President, Generics | 2024 | 463,062 | — | 1,176,980 | — | 467,900 | — | 2,107,942 | ||||||||||||||||||||||||||||||||||||||||||
| 2023 | 445,254 | — | 1,046,532 | — | 449,904 | — | 1,941,690 | |||||||||||||||||||||||||||||||||||||||||||
| 2022 | 429,217 | — | 739,041 | — | 194,670 | — | 1,362,928 | |||||||||||||||||||||||||||||||||||||||||||
Meredith W. Cook Senior Vice President, General Counsel and Corporate Secretary | 2024 | 408,700 | — | 1,176,980 | — | 420,000 | 16,800 | 2,022,480 | ||||||||||||||||||||||||||||||||||||||||||
__________________________
(1)Ms. Cook commenced employment with us on July 18, 2022 and became an NEO in 2024.
(2)Amounts in this column reflect the aggregate grant date fair value of restricted stock awards and PSUs computed in accordance with FASB ASC Topic 718 granted during the applicable period, as discussed in Note 15 of our notes to consolidated financial statements contained in our annual report on Form 10-K for the year ended December 31, 2024. The grant date fair value of each restricted stock award is measured based on the closing price of the Company’s common stock on the date of grant. The performance-based PSUs are measured based on the closing price of the Company's common stock on the date of grant. The TSR PSUs have a grant date fair value of $85.65, as calculated
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using a Monte Carlo simulation model.
(3)This column represents the earned cash incentive opportunity paid to each NEO in recognition of performance in the fiscal year provided.
(4)Represents (i) 401(k) matching contributions by the Company, and (ii) Company reimbursement of term life insurance policy pursuant to their employment agreements, in the following amounts for the fiscal years 2024, 2023, and 2022:
| Name | Year | 401(k) Contribution ($) | Life Insurance Reimbursement ($) | |||||||||||||||||
Nikhil Lalwani(1) | 2024 | 13,800 | 24,000 | |||||||||||||||||
| 2023 | 13,200 | — | ||||||||||||||||||
| 2022 | 12,200 | — | ||||||||||||||||||
| Stephen P. Carey | 2024 | 13,800 | 2,976 | |||||||||||||||||
| 2023 | 13,200 | 3,600 | ||||||||||||||||||
| 2022 | 12,200 | 3,508 | ||||||||||||||||||
| Christopher K. Mutz | 2024 | 13,800 | 3,000 | |||||||||||||||||
| 2023 | 13,200 | 2,189 | ||||||||||||||||||
| 2022 | 12,200 | — | ||||||||||||||||||
| Ori Gutwerg | 2024 | — | — | |||||||||||||||||
| 2023 | — | — | ||||||||||||||||||
| 2022 | — | — | ||||||||||||||||||
| Meredith W. Cook | 2024 | 13,800 | 3,000 | |||||||||||||||||
(1) Mr. Lalwani was reimbursed in 2024 for term life insurance policies from the years 2021, 2022, 2023, and 2024.
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Grants of Plan-Based Awards
The following table sets forth information regarding each grant of an award made to each NEO for the fiscal year ended December 31, 2024.
| Estimated Future Payouts Under Non-Equity Incentive Plan Awards | Estimated Future Payouts Under Equity Incentive Plan Awards | All Other Stock Awards: Number of Shares of Stock or Units (#) | Grant Date Fair Value of Stock and Option Awards ($) | ||||||||||||||||||||||||||||||||||||||
| Name | Approval Date or Grant Date | Threshold ($) | Target ($) | Maximum ($) | Threshold | Target | Maximum | ||||||||||||||||||||||||||||||||||
| Nikhil Lalwani | — | 803,229 | 1,606,457 | ||||||||||||||||||||||||||||||||||||||
02/14/2024(1) | 80,530 | 4,517,733 | |||||||||||||||||||||||||||||||||||||||
02/14/2024(2) | 13,421 | 26,843 | 53,686 | 26,843 | 1,902,498 | ||||||||||||||||||||||||||||||||||||
| Stephen P. | — | 305,910 | 611,820 | ||||||||||||||||||||||||||||||||||||||
| Carey | 02/14/2024(1) | 21,474 | 1,204,691 | ||||||||||||||||||||||||||||||||||||||
02/14/2024(2) | 3,579 | 7,158 | 14,316 | 7,158 | 507,323 | ||||||||||||||||||||||||||||||||||||
| Christopher K. | — | 227,500 | 455,000 | ||||||||||||||||||||||||||||||||||||||
| Mutz | 02/14/2024(1) | 18,790 | 1,054,119 | ||||||||||||||||||||||||||||||||||||||
02/14/2024(2) | 3,131 | 6,263 | 12,526 | 6,263 | 443,890 | ||||||||||||||||||||||||||||||||||||
| Ori Gutwerg | — | 233,950 | 467,900 | ||||||||||||||||||||||||||||||||||||||
02/14/2024(1) | 14,763 | 828,204 | |||||||||||||||||||||||||||||||||||||||
02/14/2024(2) | 2,460 | 4,921 | 9,842 | 4,921 | 348,776 | ||||||||||||||||||||||||||||||||||||
| Meredith W. | — | 210,000 | 420,000 | ||||||||||||||||||||||||||||||||||||||
| Cook | 02/14/2024(1) | 14,763 | 828,204 | ||||||||||||||||||||||||||||||||||||||
02/14/2024(2) | 2,460 | 4,921 | 9,842 | 4,921 | 348,776 | ||||||||||||||||||||||||||||||||||||
__________________________
(1)The row represents restricted stock awards, which vest in four equal annual installments on the first four anniversaries of their grant dates. For additional detail on the grant date fair value, see footnote 2 to the Summary Compensation Table above.
(2)The row represents PSUs, which have a threshold payout of 50% of target and a maximum payout of 200% of target and may be earned based on the achievement of two different performance metrics — Adjusted EBITDA Growth and relative TSR, and will cliff vest at the end of the three-year performance period from January 1, 2024 through December 31, 2026. For additional detail on the grant date fair value, see footnote 2 to the Summary Compensation Table above.
Option Exercises and Stock Vested Table
The following table sets forth information regarding the exercise of options and the vesting of stock awards on an aggregated basis during the fiscal year ended December 31, 2024 for each NEO as provided.
| Option Awards | Stock Awards | |||||||||||||||||||||||||
| Name | Number of Shares Acquired on Exercise (#) | Value Realized on Exercise ($) | Number of Shares Acquired on Vesting (#) | Value Realized on Vesting ($) | ||||||||||||||||||||||
| Nikhil Lalwani | 30,000 | 865,800 | 98,485 | 6,646,610 | ||||||||||||||||||||||
| Stephen P. Carey | — | — | 40,931 | 2,777,912 | ||||||||||||||||||||||
| Christopher K. Mutz | — | — | 14,852 | 957,994 | ||||||||||||||||||||||
| Ori Gutwerg | — | — | 14,045 | 911,551 | ||||||||||||||||||||||
| Meredith W. Cook | — | — | 7,859 | 501,356 | ||||||||||||||||||||||
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Outstanding Equity Awards at Fiscal Year-End
The following table provides information regarding each unexercised stock option or unvested stock award held by our NEOs as of December 31, 2024.
| Name | Grant Date | Number of Securities Underlying Unexercised Options (#) Exercisable | Number of Securities Underlying Unexercised Options (#) Unexercisable | Option Exercise Price ($) | Option Expiration Date | Number of Shares Units of Stock That Have Not Vested (#) | Market Value of Shares or Units of Stock That Have Not Vested ($) | |||||||||||||||||||||||||||||||||||||
| Nikhil Lalwani | 9/8/2020 | 138,027 | — | 29.00 | 9/7/2030 | — | — | |||||||||||||||||||||||||||||||||||||
| 3/23/2021 | — | — | — | — | 34,124 | (1) | 1,886,375 | |||||||||||||||||||||||||||||||||||||
| 3/24/2022 | — | — | — | — | 50,028 | (1) | 2,765,548 | |||||||||||||||||||||||||||||||||||||
| 4/27/2022 | — | — | — | — | 16,676 | (1) | 921,849 | |||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 71,648 | (1) | 3,960,701 | |||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 31,843 | (2) | 3,520,562 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 80,530 | (1) | 4,451,698 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 26,843 | (2) | 2,967,762 | |||||||||||||||||||||||||||||||||||||
| Stephen P. Carey | 5/6/2016 | 50,000 | — | 46.49 | 5/5/2026 | — | — | |||||||||||||||||||||||||||||||||||||
| 3/31/2017 | 13,250 | — | 49.51 | 3/30/2027 | — | — | ||||||||||||||||||||||||||||||||||||||
| 4/6/2018 | 9,600 | — | 57.06 | 4/5/2028 | — | — | ||||||||||||||||||||||||||||||||||||||
| 3/28/2019 | 15,064 | — | 66.39 | 3/27/2029 | — | — | ||||||||||||||||||||||||||||||||||||||
| 3/23/2021 | — | — | — | — | 13,618 | (1) | 752,803 | |||||||||||||||||||||||||||||||||||||
| 3/24/2022 | — | — | — | — | 16,938 | (1) | 936,333 | |||||||||||||||||||||||||||||||||||||
| 4/27/2022 | — | — | — | — | 5,646 | (1) | 312,111 | |||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 18,237 | (1) | 1,008,141 | |||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 8,105 | (2) | 896,089 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 21,474 | (1) | 1,187,083 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 7,158 | (2) | 791,388 | |||||||||||||||||||||||||||||||||||||
| Christopher K. Mutz | 2/15/2021 | 25,318 | 8,440 | (3) | 31.49 | 2/14/2031 | — | — | ||||||||||||||||||||||||||||||||||||
| 2/15/2021 | — | — | — | — | 4,034 | (1) | 223,000 | |||||||||||||||||||||||||||||||||||||
| 3/24/2022 | — | — | — | — | 9,714 | (1) | 536,990 | |||||||||||||||||||||||||||||||||||||
| 4/27/2022 | — | — | — | — | 3,238 | (1) | 178,997 | |||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 13,027 | (1) | 720,133 | |||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 5,789 | (2) | 640,032 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 18,790 | (1) | 1,038,711 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 6,263 | (2) | 692,437 | |||||||||||||||||||||||||||||||||||||
| Ori Gutwerg | 2/15/2021 | 6,752 | 6,752 | (3) | 31.49 | 2/14/2031 | — | — | ||||||||||||||||||||||||||||||||||||
| 2/15/2021 | — | — | — | — | 3,227 | (1) | 178,389 | |||||||||||||||||||||||||||||||||||||
| 3/24/2022 | — | — | — | — | 9,714 | (1) | 536,990 | |||||||||||||||||||||||||||||||||||||
| 4/27/2022 | — | — | — | — | 3,238 | (1) | 178,997 | |||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 13,027 | (1) | 720,133 | |||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 5,789 | (2) | 640,032 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 14,763 | (1) | 816,099 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 4,921 | (2) | 544,066 | |||||||||||||||||||||||||||||||||||||
| Meredith W. Cook | 7/18/2022 | — | — | — | — | 9,640 | (1) | 532,899 | ||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 9,119 | (1) | 504,098 | |||||||||||||||||||||||||||||||||||||
| 2/28/2023 | — | — | — | — | 4,052 | (2) | 447,989 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 14,763 | (1) | 816,099 | |||||||||||||||||||||||||||||||||||||
| 2/14/2024 | — | — | — | — | 4,921 | (2) | 544,066 | |||||||||||||||||||||||||||||||||||||
__________________________
(1)Represent awards of restricted stock that vest in four equal installments on the first four anniversaries of the grant dates. The market value of the restricted stock is calculated by multiplying the number of shares by $55.28, the closing market price of the Company’s common stock on December 31, 2024.
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(2)Represents awards of PSUs, which have a threshold payout of 50% of target and a maximum payout of 200% of target and may be earned based on the achievement of two different performance metrics — Adjusted EBITDA Growth and relative Total Shareholder Return (“TSR”), and will cliff vest at the end of the three-year performance period, which runs from January 1 of the year of grant through December 31 of the second year after the grant. The market value of the PSUs is calculated by multiplying the number of PSUs granted by 200%, the maximum percentage of PSUs that can vest, and multiplying by $55.28, the closing market price of the Company’s common stock on December 31, 2024.
(3)Represents stock options that will vest in four equal installments on the first four anniversaries of the grant dates.
Payments upon Termination or Change in Control
Separation Arrangements
All of our NEOs are employed at-will and may be terminated at any time, with or without formal cause. In addition, all of our NEOs, upon the termination of their employment for any reason other than termination by us for “good cause” (as defined in the respective employment agreements), will be entitled to receive the incentive bonus otherwise earned based upon actual performance and payable to the NEO for the fiscal year ending immediately prior to the NEO’s termination date.
Nikhil Lalwani
Under Mr. Lalwani’s employment agreement, in the event his employment is terminated by us “without good cause” or by Mr. Lalwani for “good reason” (as such terms are defined in his employment agreement), Mr. Lalwani will be entitled, subject to his execution and non-revocation of a release of claims in our favor, to the following: (i) continued payment of his current annual base salary for 24 months following the termination date, (ii) reimbursement of COBRA premiums for COBRA coverage based on the portion of the monthly premium costs covered by the Company for group coverage in effect as of the termination date, following the termination date until the earlier of (a) 18 months and (b) the date that Mr. Lalwani and his eligible dependents become eligible to participate under another similar plan or are ineligible for COBRA coverage, (iii) if such termination occurs after June 30th in any calendar year, a lump sum cash payment equal to the pro-rated maximum target bonus for the fiscal year during which he is terminated, (iv) a lump sum cash payment equal to his annual maximum bonus amount which will be payable on each of the next two anniversaries of his termination date, and (v) all of his options and any unvested restricted stock will vest with respect to that number of shares that would have vested during the 24 months after his termination had he remained employed by the Company during such period, and his vested options will remain exercisable for up to 18 months following his termination date.
If Mr. Lalwani’s employment is terminated by the Company for any reason other than for “good cause” or if he resigns for “good reason” in connection with or within 24 months following a “change in control” (as such terms are defined in his employment agreement), he will be entitled, subject to his execution and non-revocation of a release of claims in our favor, to the following: (i) continued payment of his current annual base salary for 36 months following the later of either his termination date or the date on which the change in control occurs (the “Lalwani CIC Severance Period”), (ii) reimbursement of COBRA premiums for COBRA coverage during the Lalwani CIC Severance Period (or until he and his eligible dependents become eligible to participate in another similar plan or are ineligible for COBRA coverage) based on the portion of the monthly premium costs covered by the Company for group coverage in effect as of his termination date, (iii) a lump sum cash payment equal to the pro-rated portion of the maximum target bonus amount for that year, (iv) lump sum cash payments equal to his maximum target bonus which will be payable on each of the next three anniversaries of the later of his termination date or the date on which the change in control occurs, (v) outplacement services worth in value up to $10,000 and (vi) all of his options to purchase Company common stock and any unvested restricted stock will vest in their entirety and vested options will remain exercisable through their applicable expiration dates and any unvested and outstanding performance-based awards shall become earned and vested based on the performance level achieved as of such date on which the change in control occurs.
Mr. Lalwani’s employment agreement also provides that if the compensation and benefits payable to him are subject to Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), such payments will be reduced to the extent necessary to provide Mr. Lalwani the greatest after-tax benefit.
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Stephen P. Carey
Under the employment agreement for Mr. Carey, if his employment is terminated by the Company “without good cause” or by Mr. Carey for “good reason” (as such terms are defined in his employment agreement), subject to his execution and non-revocation of a release of claims in our favor, he will be entitled to (i) his base salary for a period of 12 months from the date of his termination, (ii) reimbursement equal to the portion of the monthly health premiums paid by the Company on his behalf and that of his eligible dependents immediately preceding the date that his employment terminates until the earlier of (a) 12 months following the termination date and (b) the date that Mr. Carey and his eligible dependents become eligible to participate in a similar plan or are ineligible for COBRA coverage, (iii) if the termination occurs after June 30th in any calendar year, a lump sum cash payment equal to the pro-rated maximum target bonus for the fiscal year during which he is terminated, (iv) a lump sum cash payment equal to Mr. Carey's annual maximum bonus amount, payable on the first payroll date following the first anniversary of his termination date and (v) any options to purchase shares of the Company’s common stock or shares of restricted stock of the Company held by Mr. Carey that are not fully vested at the time of termination will immediately accelerate and vest in full, and any such options will remain exercisable through their expiration dates.
In addition, the employment agreement for Mr. Carey provides that if his employment is terminated by the Company for any reason other than for “good cause” or if he resigns for “good reason” in connection with or within 24 months following a “change in control” (as such terms are defined in his employment agreement), subject to Mr. Carey's execution and non-revocation of a release of claims in our favor, he will be entitled to receive (i) his base salary for 24 months following the later of either his termination date or the date on which the change in control occurs (the “CIC Severance Period”), (ii) a lump sum cash payment equal to the pro-rated annual maximum bonus for the fiscal year during which he is terminated, (iii) lump sum cash payments equal to his maximum annual bonus payable on the first payroll date following each of the next two anniversaries of the later of his termination date and the date on which the change in control occurs, (iv) reimbursement of COBRA premiums for COBRA coverage during the CIC Severance Period (or until Mr. Carey and his eligible dependents become eligible to participate in another similar plan or are ineligible for COBRA coverage) based on the portion of the monthly premium costs covered by the Company for group coverage in effect as of the termination date, (v) any options to purchase shares of the Company’s common stock or shares of restricted stock of the Company held by Mr. Carey that are not fully vested will immediately accelerate and vest in full and any unvested and outstanding performance-based awards shall become earned and vested based on the performance level achieved as of such date on which the change in control occurs, (vi) outplacement services worth in value up to $10,000, and (vii) tax gross up payments in the event any payments are subject to the excise taxes imposed by Sections 280G and 4999 of the Code.
Christopher K. Mutz, Ori Gutwerg and Meredith W. Cook
Under the employment agreement for each of Messrs. Mutz and Gutwerg and Ms. Cook, if the NEO’s employment is terminated by the Company “without good cause” or by the applicable NEO for “good reason” (as such terms are defined in the applicable employment agreement), subject to the applicable NEO’s execution and non-revocation of a release of claims in our favor, he or she will be entitled to (i) his or her base salary for a period of 12 months from the date of his or her termination, (ii) reimbursement equal to the portion of the monthly health premiums paid by the Company on his or her behalf and that of his or her eligible dependents immediately preceding the date that his or her employment terminates until the earlier of (a) 12 months following the termination date and (b) the date that the NEO and his or her eligible dependents become eligible to participate in a similar plan or are ineligible for COBRA coverage, (iii) if the termination occurs after June 30th in any calendar year, a lump sum cash payment equal to the pro-rated maximum target bonus for the fiscal year during which he or she is terminated, (iv) a lump sum cash payment equal to the NEO’s annual maximum bonus amount, payable on the first payroll date following the first anniversary of his or her termination date, and (v) any options to purchase shares of the Company’s common stock or shares of restricted stock of the Company held by the NEO that are not fully vested at the time of termination will vest with respect to that number of shares that would have vested during the 12 months after his or her termination had he or she remained employed by the Company during such period, and any vested options will remain exercisable for up to 18 months following his or her termination date.
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In addition, the employment agreement for each of Messrs. Mutz and Gutwerg and Ms. Cook provide that if the applicable NEO’s employment is terminated by the Company for any reason other than for “good cause” or if the NEO resigns for “good reason” in connection with or within 24 months following a “change in control” (as such terms are defined in the applicable employment agreement), subject to the applicable NEO’s execution and non-revocation of a release of claims in our favor, he or she will be entitled to receive (i) his or her base salary for 24 months following the later of either his or her termination date or the date on which the change in control occurs (the “CIC Severance Period”), (ii) a lump sum cash payment equal to the pro-rated annual maximum bonus for the fiscal year during which he or she is terminated, (iii) lump sum cash payments equal to the NEO’s target annual bonus payable on the first payroll date following each of the next two anniversaries of the later of his or her termination date and the date on which the change in control occurs, (iv) reimbursement of COBRA premiums for COBRA coverage during the CIC Severance Period (or until the NEO and his or her eligible dependents become eligible to participate in another similar plan or are ineligible for COBRA coverage) based on the portion of the monthly premium costs covered by the Company for group coverage in effect as of the termination date, (v) any options to purchase shares of the Company’s common stock or shares of restricted stock of the Company held by the NEO that are subject to time vesting and are not fully vested will immediately accelerate and vest in full and any such options will remain exercisable through their expiration dates and any unvested and outstanding performance-based awards shall become earned and vested based on the performance level achieved as of such date on which the change in control occurs, and (vi) outplacement services worth in value up to $10,000.
The employment agreement for each of Messrs. Mutz and Gutwerg and Ms. Cook also provides that if the compensation and benefits payable to the NEO are subject to Sections 280G and 4999 of the Code, such payments will be reduced to the extent necessary to provide the NEO the greatest after-tax benefit.
Death and Disability
If any our NEOs’ employment is terminated due to their death or disability, pursuant to the terms of their restricted stock award agreements, any shares that were scheduled to vest on the next vesting date following their termination date will immediately vest as of the termination date.
Change in Control
Under the Company’s Amended and Restated 2022 Stock Incentive Plan, as amended (the “Stock Plan”), awards granted under the Stock Plan or subject to the terms of the Stock Plan will vest in full in the event of a “change in control” of the Company (as defined in the Stock Plan), unless the Compensation Committee provides otherwise. In addition, the stock option agreement under the Stock Plan generally provide that upon a change in control, the post-termination exercise period will be extended until the option expires. Mr. Lalwani’s stock option and restricted stock award agreements, however, provide that his stock awards will only vest in connection with a qualifying termination that occurs in connection with a change in control as provided for in his employment agreement and described under “Separation Arrangements — Nikhil Lalwani” above.
Potential Payments Upon Termination or Change in Control
The following table summarizes the approximate value of the potential benefits each of our NEOs would receive in connection with a termination of employment on December 31, 2024, including the approximate value of the accelerated vesting of the equity awards that each NEO would receive upon (i) a termination by the Company without good cause or resignation for good reason (a “Qualifying Termination”) not in connection with a change in control and (ii) a Qualifying Termination in connection with or within 24 months following a change in control (the “CIC Period”). For clarity, the table below does not include the value attributable to certain awards that may become vested or partially vested outside of a Qualifying Termination. The value of each NEO’s accelerated equity awards is based upon the closing market price per share of our common stock of $55.28 as of December 31, 2024.
These benefits are in addition to benefits available generally to salaried employees. Due to the number of factors that affect the nature and amount of any benefits provided upon the events discussed below, any actual amounts paid or distributed may be different from those estimated below. Factors that could affect these amounts include the timing during the year of any such event and our valuation at that time. There can be no assurance that a termination or change of control would produce the same or similar results as those described below if any assumption used to prepare this information is not correct in fact.
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Name(6) | Base Salary Continuation(1) ($) | Bonus Payments(2) ($) | Benefits Continuation(3) ($) | Outplacement Services ($) | Equity Awards(4)(5) ($) | Total ($) | ||||||||||||||||||||||||||||||||
| Nikhil Lalwani | ||||||||||||||||||||||||||||||||||||||
| Qualifying Termination | 1,606,458 | 4,819,374 | 45,000 | — | 12,408,609 | 18,879,441 | ||||||||||||||||||||||||||||||||
| Qualifying Termination within CIC Period | 2,409,687 | 6,425,832 | 90,000 | 10,000 | 19,151,369 | 28,086,888 | ||||||||||||||||||||||||||||||||
| Stephen P. Carey | ||||||||||||||||||||||||||||||||||||||
| Qualifying Termination | 509,850 | 1,223,640 | 30,000 | — | 4,627,065 | 6,390,555 | ||||||||||||||||||||||||||||||||
| Qualifying Termination within CIC Period | 1,019,700 | 1,835,460 | 60,000 | 10,000 | 5,040,209 | 7,965,369 | ||||||||||||||||||||||||||||||||
| Christopher K. Mutz | ||||||||||||||||||||||||||||||||||||||
| Qualifying Termination | 455,000 | 910,000 | 30,000 | — | 1,610,195 | 3,005,195 | ||||||||||||||||||||||||||||||||
| Qualifying Termination within CIC Period | 910,000 | 1,365,000 | 60,000 | 10,000 | 3,564,840 | 5,909,840 | ||||||||||||||||||||||||||||||||
| Ori Gutwerg | ||||||||||||||||||||||||||||||||||||||
| Qualifying Termination | 467,900 | 935,800 | 30,000 | — | 1,457,579 | 2,891,279 | ||||||||||||||||||||||||||||||||
| Qualifying Termination within CIC Period | 935,800 | 1,403,700 | 60,000 | 10,000 | 3,233,302 | 5,642,802 | ||||||||||||||||||||||||||||||||
| Meredith W. Cook | ||||||||||||||||||||||||||||||||||||||
| Qualifying Termination | 420,000 | 840,000 | 30,000 | — | 878,436 | 2,168,436 | ||||||||||||||||||||||||||||||||
| Qualifying Termination within CIC Period | 840,000 | 1,260,000 | 60,000 | 10,000 | 2,349,124 | 4,519,124 | ||||||||||||||||||||||||||||||||
__________________________
(1)Assumes base salary amount in effect on December 31, 2024, payable over the severance term, 2 years (3 years within CIC period) for Mr. Lalwani and 1 year (2 years within CIC period) for all other NEOs.
(2)Assumes a full year prorated bonus for 2024, assuming maximum performance at 200% of target level, plus a maximum bonus amount for 2024, at 200% of target level, for each of the years in the applicable severance term, 2 years (3 years within CIC period) for Mr. Lalwani and 1 year (2 years within CIC period) for all other NEOs.
(3)The benefit continuation amount assumes COBRA premium reimbursement at an estimated cost of $2,500 per month, payable over the applicable severance term for the NEO.
(4)The value for stock option awards is calculated by multiplying the number of unvested shares that would be subject to accelerated vesting by the difference between the closing price per share of our common stock of $55.28 on December 31, 2024 and the exercise price of the applicable stock option. No value was attributed for underwater stock options. The value for restricted stock is calculated by multiplying the number of unvested shares that would be subject to accelerated vesting by the price per share of our common stock of $55.28 on December 31, 2024.
(5)The value for PSUs for a Qualifying Termination is calculated assuming target level performance, prorated for the performance period, or two thirds of the PSUs granted in 2023 and one third of the PSUs granted in 2024, multiplied by the price per share of our common stock of $55.28 on December 31, 2024. The value for PSUs for a Qualifying Termination within the CIC Period is calculated assuming target level performance, with full acceleration, or 100% of the total PSUs granted multiplied by the price per share of our common stock of $55.28 on December 31, 2024.
(6)To the extent the amounts paid to Messrs. Lalwani, Gutwerg, and Mutz and Ms. Cook are subject Sections 280G and 4999 of the Code, the amounts will be reduced as necessary to provide the respective NEO with the greatest after-tax benefit. To the extent amounts paid to Mr. Carey is subject to Section 280G and 4999 of the Code, he is eligible for a one-time gross up payment on any applicable excise taxes, assuming the highest applicable tax rate.
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Indemnification Agreements
The Company has entered into agreements with all of its directors and officers under which the Company is required to indemnify them against expenses, judgments, penalties, fines, settlements and other amounts actually and reasonably incurred, including expenses of a derivative action, in connection with an actual or threatened proceeding if any of them may be made a party because he or she is or was one of the Company’s directors or officers. The Company will be obligated to pay these amounts only if the director or officer acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the Company. With respect to any criminal proceeding, the Company will be obligated to pay these amounts only if the director or officer had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth procedures that will apply in the event of a claim for indemnification.
CEO Pay Ratio
Under SEC rules, we are required to disclose the ratio of our CEO’s annual total compensation to the median of the annual total compensation of all our other employees. We determined that the 2024 median of the annual total compensation of all our employees who were employed as of December 31, 2024, other than our CEO, Nikhil Lalwani, was $82,949. Mr. Lalwani’s 2024 annual total compensation was $8,841,402 (as reported in our Summary Compensation Table above). Based on the foregoing, our estimate of the ratio of Mr. Lalwani’s annual total compensation to the median annual total compensation of all our other employees was 107 to 1.
We determined there was a significant change in our employee population in 2024 as a result of the acquisition of Alimera Sciences, Inc. As a result, we determined our median employee by preparing a ranked list of our total employee population as of December 31, 2024, excluding Mr. Lalwani, consisting of 825 employees located in the United States, India, United Kingdom, Germany, Portugal, Ireland, and Canada. To identify the median compensated employee, we used Box 5 W-2 data, or the equivalent for employees located outside of the United States, for all individuals as of December 31, 2024, annualizing such data for those individuals employed less than the full year of 2024. We then calculated the annual compensation of the median employee using the same methodology used to calculate Mr. Lalwani’s compensation for the Summary Compensation Table.
We believe that the pay ratio reported above is a reasonable estimate calculated in a manner consistent with SEC rules based on our internal records and the methodology described above. The SEC rules for identifying the median compensated employee and calculating the pay ratio based on that employee’s annual total compensation allow companies to adopt a variety of methodologies, to apply certain exclusions, and to make reasonable estimates and assumptions that reflect their employee populations and compensation practices. Therefore, our ratio may not be comparable to the ratios disclosed by other companies based on a number of factors, including differences in employee populations, different geographic distributions of employees, and the nature of the companies’ businesses.
Pay Versus Performance Disclosure
In accordance with rules adopted by the SEC pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, we provide the following disclosure regarding executive “compensation actually paid” (“CAP”) and certain Company performance measures for the fiscal years listed below. You should refer to our Compensation Discussion & Analysis (“CD&A”) for a complete description of how executive compensation relates to Company performance measures and how the Compensation Committee makes its decisions related thereto.
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Pay Versus Performance Table
The following table provides the information required for our principal executive officer (“PEO”) and non-PEO NEOs for each of the fiscal years ended December 31, 2024, December 31, 2023, December 31, 2022, December 31, 2021, and December 31, 2020 along with the financial information required to be disclosed for each fiscal year:
Year (1)(2)(3)(4) | Summary Compensation Table Total for PEO $ | Summary Compensation Table Total for Former PEO $ | Summary Compensation Table Total for Interim PEO $ | Compensation Actually Paid to PEO(5) $ | Compensation Actually Paid to Former PEO(5)(6) $ | Compensation Actually Paid to Interim PEO(5)(6) $ | Average Summary Compensation Table Total for non-PEO NEOs $ | Average Compensation Actually Paid to non-PEO NEOs(5) $ | Year-end value of $100 invested on December 31, 2019 in: | Net (Loss) Income (in millions) $ | Revenue (in millions) $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| ANIP $ | Peer Group(6) $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2024 | — | — | — | — | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2023 | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2022 | — | — | — | — | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2021 | — | — | — | — | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2020 | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
__________________________
(1) The PEO in each reporting year is our current Chief Executive Officer, Nikhil Lalwani .
(2) The Former PEO in 2020 is Arthur Przybyl . Mr. Przybyl served as Chief Executive Officer through May 10, 2020.
(3) The Interim PEO in 2020 is Patrick Walsh . Mr. Walsh served as Interim Chief Executive Officer from May 11, 2020 until September 8, 2020 when Mr. Lalwani commenced employment as Chief Executive Officer.
(4) Our non-PEO NEOs includes the following executives by year:
a.2024: Stephen P. Carey, Christopher K. Mutz, Ori Gutwerg, Meredith W. Cook
b.2023: Stephen P. Carey, Chad Gassert, Ori Gutwerg, Christopher K. Mutz
c.2022: Stephen P. Carey, James G. Marken, Ori Gutwerg, Christopher K. Mutz
d.2021: Stephen P. Carey, James G. Marken, Ori Gutwerg, Christopher K. Mutz
e.2020: Stephen P. Carey, James G. Marken, Robert W. Schrepfer
(5) Deductions from, and additions to, total compensation in the Summary Compensation Table (“SCT”) by year to calculate CAP are shown in the tables below. The amounts reflected for fiscal years 2022 and 2023 have been revised from the amounts previously reported in last year's Proxy Statement in order to incorporate administrative corrections in the calculation of fair value for certain stock and option awards.
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| 2024 | 2023 | 2022 | 2021 | 2020 | ||||||||||||||||||||||||||||||||||||||||
PEO ($) | PEO ($) | PEO ($) | PEO ($) | PEO ($) | Former PEO ($) | Interim PEO ($) | ||||||||||||||||||||||||||||||||||||||
Total Compensation from SCT | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||
Adjustments for Equity Awards: | ||||||||||||||||||||||||||||||||||||||||||||
Subtraction: Value of Stock and Option Awards reported in SCT | ( | ( | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||
Addition: Fair value at year-end of awards granted during the covered fiscal year that are outstanding and unvested at year-end | ||||||||||||||||||||||||||||||||||||||||||||
Addition: Fair value at vest of awards granted and vested during the covered fiscal year | ||||||||||||||||||||||||||||||||||||||||||||
Addition (Subtraction): Year-over-year change in fair value of awards granted in any prior fiscal year that are outstanding and unvested at year end | ( | |||||||||||||||||||||||||||||||||||||||||||
Addition (Subtraction): Change as of the vesting date (from the end of the prior fiscal year) in fair value of awards granted in any prior fiscal year for which vesting conditions were satisfied at the end of or during the covered fiscal year | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||
(Subtraction): Fair value at end of prior fiscal year of awards granted in any prior fiscal year that fail to meet the applicable vesting conditions during the covered fiscal year | ||||||||||||||||||||||||||||||||||||||||||||
Compensation Actually Paid (as calculated) | $ | $ | $ | $ | $ | $ | ( | $ | ||||||||||||||||||||||||||||||||||||
Average non-PEO NEOs | ||||||||||||||||||||||||||||||||
2024 ($) | 2023 ($) | 2022 ($) | 2021 ($) | 2020 ($) | ||||||||||||||||||||||||||||
Total Compensation from SCT | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
Adjustments for Equity Awards: | ||||||||||||||||||||||||||||||||
Subtraction: Value of Stock and Option Awards reported in SCT | ( | ( | ( | ( | ( | |||||||||||||||||||||||||||
Addition: Fair value at year-end of awards granted during the covered fiscal year that are outstanding and unvested at year-end | ||||||||||||||||||||||||||||||||
Addition: Fair value at vest of awards granted and vested during the covered fiscal year | ||||||||||||||||||||||||||||||||
Addition (Subtraction): Year-over-year change in fair value of awards granted in any prior fiscal year that are outstanding and unvested at year end | ( | ( | ( | |||||||||||||||||||||||||||||
Addition (Subtraction): Change as of the vesting date (from the end of the prior fiscal year) in fair value of awards granted in any prior fiscal year for which vesting conditions were satisfied at the end of or during the covered fiscal year | ( | ( | ||||||||||||||||||||||||||||||
Compensation Actually Paid (as calculated) | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
All equity valuations for each covered fiscal year are calculated in accordance with the provisions of ASC Topic 718. See Note 15 to our audited consolidated financial statements appearing in our 2024 Annual Report on Form 10-K for assumptions underlying the valuations of equity awards.
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Tabular List of Financial Performance Measures
In our assessment, the most important financial performance measures used to link CAP (as calculated in accordance with the SEC rules), to our PEO and non-PEO NEOs in 2024 to our performance were:
Pay Versus Performance: Graphical Description
The illustrations below provide a graphical description of CAP (as calculated in accordance with the SEC rules) and the following measures:
•the Company’s cumulative TSR and the Peer Group’s cumulative TSR;
•the Company’s Net Income (Loss); and
•the Company's Revenue.
CAP and Cumulative TSR / Cumulative TSR of the Peer Group
| 2019 | 2020 | 2021 | 2022 | 2023 | 2024 | |||||||||||||||
 PEO CAP | — | $3,831 | $10,473 | $4,617 | $15,098 | $10,815 | ||||||||||||||
 Average non-PEO NEO CAP | — | $689 | $2,847 | $1,413 | $3,239 | $2,687 | ||||||||||||||
 ANIP value of $100 Invested on 12/31/19 | $100.00 | $47.09 | $74.72 | $65.23 | $89.41 | $89.64 | ||||||||||||||
 Peer Group value of $100 Invested on 12/31/19 | $100.00 | $144.89 | $139.98 | $94.77 | $91.86 | $89.73 | ||||||||||||||
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CAP and Company Net Income (Loss)
| 2020 | 2021 | 2022 | 2023 | 2024 | |||||||||||||
| PEO CAP | $3,831 | $10,473 | $4,617 | $15,098 | $10,815 | ||||||||||||
| Average non-PEO NEO CAP | $689 | $2,847 | $1,413 | $3,239 | $2,687 | ||||||||||||
| Net Income (Loss) ($Mil.) | $(23) | $(43) | $(48) | $19 | $(19) | ||||||||||||
In thousands, CAP for our Former PEO was $(2,920) in 2020 and $0 in each of 2021, 2022, 2023 and 2024, and CAP for our Interim PEO was $627 in 2020 and $0 in each of 2021, 2022, 2023 and 2024. These values have been omitted from the chart above for ease of readability.
CAP and Company Revenue
| 2020 | 2021 | 2022 | 2023 | 2024 | |||||||||||||
| PEO CAP | $3,831 | $10,473 | $4,617 | $15,098 | $10,815 | ||||||||||||
| Average non-PEO NEO CAP | $689 | $2,847 | $1,413 | $3,239 | $2,687 | ||||||||||||
| Revenue ($Mil.) | $208 | $216 | $316 | $487 | $614 | ||||||||||||
In thousands, CAP for our Former PEO was $(2,920) in 2020 and $0 in each of 2021, 2022, 2023 and 2024, and CAP for our Interim PEO was $627 in 2020 and $0 in each of 2021, 2022, 2023 and 2024. These values have been omitted from the chart above for ease of readability.
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PROPOSAL 3: ADVISORY (NON-BINDING) VOTE TO APPROVE EXECUTIVE COMPENSATION
Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and corresponding proxy rules under the Exchange Act, the Company is presenting its Stockholders with an advisory (non-binding) vote on the executive compensation programs as described in this Proxy Statement for the Company’s named executive officers (sometimes referred to as “Say on Pay”).
The advisory vote on executive compensation is a non-binding vote on the compensation of the Company’s named executive officers as described in the section entitled “Executive Compensation,” the tabular disclosure regarding such compensation, and the accompanying narrative disclosure, set forth in this Proxy Statement. Please read the Executive Compensation section starting on page 23 of this Proxy Statement for a discussion about the Company’s executive compensation programs, including information about compensation of the Company’s named executive officers for the fiscal year ended December 31, 2024.
The advisory vote on executive compensation is not a vote on the Company’s general compensation policies, the compensation of the Company’s Board, or the Company’s compensation policies as they may relate to risk management.
The Compensation Committee of the Board oversees and administers the Company’s executive compensation program, including the determination and implementation of the Company’s compensation philosophy, policies, and objectives. The Compensation Committee has designed the executive compensation program to align executive compensation with the achievement of the Company’s business goals and strategies, both short- and long-term. The Compensation Committee also seeks to provide executive compensation at levels that will allow the Company to continue to be able to attract and retain the best possible executive candidates, including those who may be employed at or regularly travel to the Company’s Baudette, Minnesota manufacturing facilities.
The Company believes that the most significant components of its executive compensation program reflect sound governance practices and are consistent with industry standards. The Board believes that executive compensation is appropriately allocated between base salary and short- and long-term equity compensation opportunities so as to encourage strong short- and long-term performance, create clear alignment with stockholders and discourage excessive risk-taking. Accordingly, we are asking Stockholders to vote for the following resolution:
“RESOLVED, that the Company’s stockholders approve, on a non-binding, advisory basis, the compensation of the Company’s named executive officers, as disclosed in the proxy statement, including the Compensation, Discussion and Analysis, compensation tables and narrative discussion.”
The vote solicited by this Proposal 3 is advisory, and therefore is not binding on the Company, the Company’s Board or the Company’s Compensation Committee. The outcome of the vote will not require the Company, the Company’s Board or the Company’s Compensation Committee to take any action, and will not be construed as overruling any decision by the Company or the Board.
The Company’s Board and Compensation Committee each values the opinions of the Company’s Stockholders and, to the extent there is any significant advisory vote against the executive compensation as disclosed in this Proxy Statement, the Company will consider its Stockholders’ view and evaluate what actions, if any, may be appropriate.
We currently conduct annual advisory votes on executive compensation, and we expect to conduct the next advisory vote on executive compensation at our 2025 Annual Meeting of Stockholders.
Required Vote; Recommendation of the Board
The affirmative vote of a majority of the stock represented and entitled to vote on this proposal, is required for advisory approval of this Proposal 3.
THE BOARD RECOMMENDS THAT YOU VOTE “FOR” THE APPROVAL OF THE ADVISORY (NON-BINDING) RESOLUTION TO APPROVE EXECUTIVE COMPENSATION.
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PROPOSAL 4: APPROVAL OF AMENDMENT TO THE COMPANY’S RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK
Overview
Our Board has approved the amendment to our Restated Certificate of Incorporation, subject to stockholder approval, to increase the number of authorized shares of common stock from 33,333,334 shares to 66,000,000 shares (the “Share Increase Amendment”) and recommends unanimously that our stockholders approve the Share Increase Amendment. The proposed amendment is reflected in the Certificate of Amendment to the Certificate of Incorporation (the “Certificate of Amendment”) attached to this proxy statement as Appendix A. For the avoidance of doubt, this Proposal 4 will only amend the first sentence of the first paragraph of Article IV Restated Certificate of Incorporation to increase the number of authorized shares of common stock by 32,666,666 shares and will not remove references to the Class C Special Stock or Preferred Stock. You are encouraged to read the Certificate of Amendment in its entirety.
As of March 24, 2025, there were 21,574,175 shares of common stock issued and outstanding, leaving a total of 11,759,159 authorized shares of common stock available for future issuance.
The additional 32,666,666 shares of common stock will be part of the existing class of common stock, and, if and when issued, would have the same rights and privileges as the shares of common stock presently issued and outstanding.
The Company’s Restated Certificate of Incorporation has never been amended to increase the number of authorized shares of common stock since it went public in 2013.
Purpose
Our Board believes that the authorized number of shares of common stock should be increased as a matter of good corporate governance to provide sufficient shares for such corporate purposes as may reasonably be determined by the Board to be necessary and in the best interest of the Company and its stockholders. These purposes may include, but are not limited to:
•expanding our business through the acquisition of other businesses, products or assets;
•establishing partnerships and strategic relationships with other companies;
•raising capital through the future sale of our common stock when necessary or appropriate; and
•attracting and retaining valuable employees by providing shares available for equity incentives.
The Board believes that it is desirable and in the best interests of the Company and its stockholders to have a sufficient number of additional shares of common stock available for issuance from time to time, as the occasion may arise, for future financing and acquisition transactions, to permit stock dividends or stock splits at some future date, equity incentives for employees, and for other proper corporate purposes. Therefore, the Board has approved, and unanimously recommends that the stockholders of the Company approve the Share Increase Amendment.
The proposed form of the Certificate of Amendment to the Company’s Restated Certificate of Incorporation amending the first sentence of the first paragraph of Article IV Restated Certificate of Incorporation is set forth in Appendix A to this proxy statement. The Certificate of Amendment will have no effect on the number of authorized shares of Series A Preferred Stock or Class C Special Stock.
Certain Risks Associated with the Share Increase Amendment
The market price of our common stock will also be based on our performance and other factors, some of which are unrelated to the number of shares outstanding. These factors include the status of the market for our common stock, our reported results of operations in future periods, and general economic, market and industry conditions.
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Principal Effects on Outstanding Common Stock
Holders of our common stock and Class C Special Stock are entitled to one vote per share on all matters submitted to a vote of stockholders. The 25,000 shares of Series A Preferred Stock outstanding as of March 24, 2025 are entitled to cast an aggregate of 611,937 votes. Approval of the Share Increase Amendment and any issuance of common stock would not affect the rights of the holders of our common stock, Series A Preferred Stock or Class C Special Stock currently outstanding, except to the extent that future issuances of common stock would reduce the holders of common stock existing proportionate ownership. If the proposed Share Increase Amendment is approved and the Board decides to issue such shares of common stock, such issuance of common stock would increase the outstanding number of shares of common stock, thereby causing dilution in earnings per share and voting interests of the outstanding common stock. As of March 24, 2025, 21,574,175 shares of our common stock were issued and outstanding. As of March 24, 2025, we had 592,963 shares held in treasury and 8,287,643 shares of our common stock subject to outstanding stock options and performance-based stock units, subject to other convertible securities, and reserved for our Amended and Restated 2022 Stock Incentive Plan and Amended and Restated 2016 Employee Stock Purchase Plan, thereby leaving 2,878,553 shares of common stock unassigned and authorized for potential issuance of the current 33,333,334 shares of common stock authorized. If the Share Increase Amendment is approved, there will be 35,545,219 shares of common stock unassigned and authorized for potential issuance. If approved, the Share Increase Amendment will not change the number of shares of Series A Preferred Stock or Class C Special Stock authorized for issuance.
Additionally, the issuance of additional shares of common stock could have the effect of making it more difficult for a third party to acquire, or discourage a third party from attempting to acquire, control of the Company. While the issuance of additional shares of common stock may be deemed to have potential anti-takeover effects, including by delaying or preventing a change in control of the Company through subsequent issuances of these shares and the other reasons set forth above, which among other things, could include issuances in one or more transactions that would make a change in control of the Company more difficult, and therefore, less likely, this proposal to increase the authorized common stock is not prompted by any specific effort of which we are aware to accumulate shares of our common stock or obtain control of the Company. A takeover may be beneficial to independent stockholders because, among other reasons, a potential suitor may offer such stockholders a premium for their shares of common stock as compared to the then-existing market price. Although the issuance of additional shares of common stock could, under certain circumstances, have an anti-takeover effect, this proposal to adopt the Share Increase Amendment is not in response to any attempt to accumulate common stock or obtain control of the Company that we are aware of, nor is it part of a plan by management to recommend a series of similar amendments to the Board or stockholders.
Interests of Certain Persons in the Proposal
Our directors and executive officers have no substantial interests, directly or indirectly, in the matters set forth in this Proposal 4, except to the extent of their ownership in shares of our common stock and securities convertible or exercisable for common stock.
Required Vote; Recommendation of the Board
The affirmative vote of a majority of the issued and outstanding shares of the Company is required for approval of this Proposal 4.
THE BOARD RECOMMENDS THAT YOU VOTE “FOR” THE APPROVAL OF THE AMENDMENT TO THE COMPANY’S RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK.
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PROPOSAL 5: APPROVAL OF THE COMPANY'S AMENDED AND RESTATED 2022 STOCK INCENTIVE PLAN
This is a proposal to approve the ANI Pharmaceuticals, Inc. Amended and Restated 2022 Stock Incentive Plan, as amended (the “Stock Plan”) to increase the shares issuable under the Stock Plan by 750,000 shares (the Stock Plan after giving effect to the amendment and restatement being submitted for approval hereunder, the “Amended 2022 Stock Plan”).
If stockholders approve the Amended 2022 Stock Plan, the Amended 2022 Stock Plan will become effective upon the date of the 2025 Annual Meeting (i.e., May 22, 2025).
Summary of Material Changes Being Made to the Stock Plan and Submitted for Stockholder Approval
The Amended 2022 Stock Plan will make the following material changes to the Stock Plan:
Increase in Authorized Shares | Increase the number of shares authorized for issuance under the Stock Plan by 750,000 additional shares | |||||||
Purpose of Share Reserve Increase
In 2024, the Stock Plan was amended and restated to increase the number of shares of our common stock available for issuance under the Stock Plan. As of March 24, 2025, a total of 1,177,800 shares of our common stock remained available for future grants under the Stock Plan. We believe that the current share reserve amount is insufficient to meet our future needs with respect to attracting, motivating and retaining key executives and employees in a competitive market for talent. We consider the Stock Plan to be a vital element of our employee compensation program and believe that the continued ability to grant stock awards at competitive levels is in the best interest of the Company and our stockholders. In recent years, our compensation structure and strategy has included issuance of grants and share usage to align with market standards.
The table below shows the stock awards that were outstanding under the Stock Plan as of March 24, 2025 As of March 24, 2025, the closing sale price of a share of the Company’s common stock on The NASDAQ Global Market was $65.98.
| Shares underlying outstanding stock options (#) | Weighted average exercise price per share ($) | Weighted average remaining term | Shares underlying outstanding performance and restricted stock awards | Shares available for future grant | ||||||||||||||||||||||
| 386,891 | 54.24 | 2.83 | 1,866,153 | 1,177,800 | ||||||||||||||||||||||
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Burn Rate and Equity Overhang
The Compensation Committee regularly reviews our burn rate and equity overhang activity in order to thoughtfully manage our long-term stockholder dilution. The table below shows our burn rate and equity overhang activity relating to equity grants under the Stock Plan for the last three fiscal years.
| Element | 2024 | 2023 | 2022 | Average | ||||||||||||||||||||||
| Granted | 781,855 | 762,283 | 784,395 | — | ||||||||||||||||||||||
| Weighted Average Common Shares Outstanding | 19,317,919 | 18,001,213 | 16,259,786 | — | ||||||||||||||||||||||
| Burn Rate | 4.05 | % | 4.23 | % | 4.82 | % | 4.37 | % | ||||||||||||||||||
| Outstanding | 2,188,426 | 2,123,913 | 2,048,279 | — | ||||||||||||||||||||||
| Common Shares Outstanding (as of December 31) | 21,108,152 | 20,446,953 | 17,494,466 | — | ||||||||||||||||||||||
| Overhang | 10.37 | % | 10.39 | % | 11.71 | % | 10.82 | % | ||||||||||||||||||
The table below shows the number of options and full value awards granted in each of the last three years.
| Fiscal Year | Time-Based Option Awards Granted | Time-Based Restricted Stock Awards Granted | Performance-Based Stock Units Granted | |||||||||||||||||
| 2024 | — | 708,267 | 73,588 | |||||||||||||||||
| 2023 | 2,938 | 674,246 | 85,099 | |||||||||||||||||
| 2022 | 35,902 | 748,493 | — | |||||||||||||||||
Note Regarding Forecasts and Forward-Looking Statements
We do not as a matter of course make public forecasts as to our total shares outstanding and utilization of various equity awards due to the unpredictability of the underlying assumptions and estimates. In particular, the forecasts set forth in this Proposal 5 include embedded assumptions which are highly dependent on the public trading price of our common stock and other factors, which we do not control and, as a result, we do not as a matter of practice provide forecasts. These forecasts reflect various assumptions regarding our future operations. The inclusion of the forecasts set forth above should not be regarded as an indication that these forecasts will be predictive of actual future outcomes, and the forecasts should not be relied upon as such.
Best Practices
We have designed the Amended 2022 Stock Plan to include a number of provisions that we believe promote best practices by reinforcing the alignment between equity compensation arrangements for non-employee directors, officers, employees and other service providers and stockholders’ interests. These provisions include, but are not limited to, the following:
No Discounted Options or Stock Appreciation Rights. Stock options and stock appreciation rights (“SARs”) may not be granted with exercise prices lower than the fair market value of the underlying shares on the grant date.
No Repricing Without Stockholder Approval. The Company cannot, without stockholder approval, reduce the exercise price of a stock option or SAR, and at any time when the exercise price of a stock option or SAR is above the market value of the Company’s common stock, the Company cannot, without stockholder approval, cancel and re-grant or exchange such stock option or SAR for cash, other awards or a new stock option or SAR at a lower exercise price.
Minimum Vesting Requirements. Stock awards granted under the Amended 2022 Stock Plan do not vest prior to the one-year anniversary of the grant date, subject to certain exceptions that are described below.
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No Liberal Share Recycling. Shares retained by or delivered to the Company to pay the exercise price of an award, shares delivered to or withheld by the Company to pay withholding taxes related to an award, unissued shares resulting from the settlement of stock appreciation rights in stock, and shares withheld by the Company to pay the exercise price of any award or satisfy any tax withholding obligation do not become available for issuance as future awards under the Amended 2022 Stock Plan.
Director Limits. The maximum aggregate grant date value of shares of the Company’s common stock granted to any director in any one calendar year, taken together with any cash fees earned by such director for services rendered during the calendar year, shall not exceed $750,000 in total value (or $1,000,000 in the first calendar year of a director’s initial term).
No Dividends on Unvested Awards. The Amended 2022 Stock Plan provides that any dividends or distributions paid with respect to shares of common stock subject to the unvested portion of a restricted stock award will be subject to the same restrictions as the shares to which such dividends or distributions relate. The Amended 2022 Stock Plan also prohibits granting dividend equivalents based on the dividends declared on shares of common stock that are subject to an option or SAR and provides that no dividend or dividend equivalents will be paid out with respect to any unvested awards.
No single-trigger acceleration. Under the Amended 2022 Stock Plan, we do not automatically accelerate vesting of awards in connection with a change in control on the company.
No liberal change in control definition. The Amended 2022 Stock Plan defines change in control based on the consummation of the transaction rather than the announcement or stockholder approval of the transaction.
No Transferability. In general, no right or interest in any incentive award may be assigned or transferred by a participant, except by will or the laws of descent and distribution, or subjected to any lien or otherwise encumbered.
No Evergreen Provision. There is no “evergreen” feature pursuant to which the shares authorized for issuance under the Amended 2022 Stock Plan can be automatically replenished.
No Automatic Grants. The Amended 2022 Stock Plan does not provide for “reload” or other automatic grants to participants.
No Tax Gross-ups. The Amended 2022 Stock Plan does not provide for any tax gross-ups.
Board Approval of the Amended and Restated 2022 Stock Incentive Plan
On March 27, 2025, our Board approved the Amended and Restated 2022 Stock Plan, subject to approval from our stockholders at the 2025 Annual Meeting. Our named executive officers and directors have an interest in this proposal because they are eligible to receive plan awards.
Summary of the Amended 2022 Stock Plan
The following provides a summary of the material features of the Amended 2022 Stock Plan and its operation. This summary does not purport to be a complete description of all of the provisions of the Amended 2022 Stock Plan and is qualified in its entirety by the plan document of the Amended 2022 Stock Plan attached as Appendix B.
Types of Awards Available under the Amended 2022 Stock Plan
We may grant the following types of incentive awards under the Amended 2022 Stock Plan: (i) stock options; (ii) stock appreciation rights; (iii) restricted stock awards; (iv) stock unit awards or restricted stock units; (v) performance awards; and (vi) stock bonuses.
Plan Administration
The Amended 2022 Stock Plan will continue to be administered by the Board or by a committee of the Board (the “Administrator”). Any such committee will consist of at least two members of the Board, all of whom are “non-employee directors” within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and “independent directors” within the meaning of the Listing Rules of The NASDAQ Stock Market. The Company expects the Compensation Committee of the Board will continue to administer the plan. The Administrator may delegate its duties, power and authority under the plan to any of the Company’s officers to the extent consistent with applicable Delaware corporate law, except with respect to participants subject to Section 16 of the Exchange Act.
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The Administrator has the authority to determine all provisions of incentive awards consistent with terms of the Amended 2022 Stock Plan, including the eligible recipients who will be granted one or more incentive awards under the Amended 2022 Stock Plan, the nature and extent of the incentive awards to be made to each participant, the time or times when incentive awards will be granted, the duration of each incentive award, and the restrictions and other conditions to which the payment or vesting of incentive awards may be subject. The Administrator has the authority to pay the economic value of any incentive award in the form of cash, the Company’s common stock or any combination of both, and may amend or modify the terms of outstanding incentive awards (except for any prohibited “repricing” of options, discussed below) so long as the amended or modified terms are permitted under the Amended 2022 Stock Plan and any adversely affected participant has consented to the amendment or modification. The Administrator may not grant incentive awards (other than “exempted awards” as described below) that vest or become exercisable less than twelve months after the grant of such award. For purposes of this minimum vesting requirement, “exempted awards” include incentive awards granted prior to April 10, 2020 and those incentive awards granted on or after April 10, 2020 for up to a maximum 5% of the total number of shares of common stock available for future grants under the Amended 2022 Stock Plan as of April 10, 2020.
In the event of any reorganization, merger, consolidation, recapitalization, liquidation, reclassification, stock dividend, stock split, combination of shares, rights offering, extraordinary dividend or divestiture (including a spin off) or any other similar change in corporate structure or shares; any purchase, acquisition, sale, disposition or write down of a significant amount of assets or a significant business; any change in accounting principles or practices, tax laws or other such laws or provisions affecting reported results; any uninsured catastrophic losses or extraordinary non-recurring items as described in Financial Accounting Standards Board Accounting Standards Codification 225, Income Statement or in management’s discussion and analysis of financial performance appearing in the Company’s annual report to stockholders for the applicable year; or any other similar change, in each case with respect to the Company or any other entity whose performance is relevant to the grant or vesting of an incentive award, the Administrator (or, if the Company is not the surviving corporation in any such transaction, the Board of the surviving corporation) may, without the consent of any affected participant, amend or modify the vesting criteria of any outstanding incentive award that is based in whole or in part on the financial performance of the Company (or any subsidiary or division or other subunit thereof) or such other entity so as equitably to reflect such event, with the desired result that the criteria for evaluating such financial performance of the Company or such other entity will be substantially the same (in the sole discretion of the Administrator or the board of the surviving corporation) following such event as prior to such event; provided, however, that the amended or modified terms are permitted by the plan as then in effect. The Administrator, in its sole discretion, may amend the terms of the plan or incentive awards with respect to participants resident outside of the United States or employed by a non-U.S. subsidiary in order to comply with local legal requirements, to otherwise protect the Company’s or subsidiary’s interests, or to meet objectives of the plan, and may, where appropriate, establish one or more sub-plans for the purposes of qualifying for preferred tax treatment under foreign tax laws. This authority does not, however, permit the Administrator to take any action:
•To reserve shares or grant incentive awards in excess of the limitations provided in the Amended 2022 Stock Plan;
•To effect any repricing of options, as discussed below;
•To grant options or stock appreciation rights having an exercise price less than 100 percent of the “fair market value” (as defined below) of one share of the Company’s common stock on the date of grant; or
•For which stockholder approval would then be required pursuant to Section 422 of Code, the Listing Rules of The NASDAQ Stock Market or other applicable market or exchange.
Except in connection with certain specified changes in the Company’s corporate structure or shares, the Administrator may not, without prior approval of the Company’s stockholders, seek to effect any repricing of any previously granted, “underwater” option or stock appreciation right by:
•Amending or modifying the terms of the underwater option or stock appreciation right to lower the exercise price;
•Canceling the underwater option or stock appreciation right in exchange for cash, replacement options or stock appreciation rights having a lower exercise price or other incentive awards; or
•Repurchasing the underwater options and stock appreciation rights and granting new incentive awards under the Amended 2022 Stock Plan.
For purposes of the Amended 2022 Stock Plan, an option or stock appreciation right is deemed to be “underwater” at any time when the fair market value of the Company’s common stock is less than the exercise price.
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Shares Available for Issuance under the Amended 2022 Stock Plan
The maximum number of shares of the Company’s common stock reserved for issuance under the Amended 2022 Stock Plan will be the sum of (i) 6,510,000, (ii) 750,000 additional shares subject to the approval of the Company’s stockholders, and (iii) the number of shares of common stock subject to incentive awards outstanding under any prior restatement of the Amended 2022 Stock Plan, but only to the extent that such outstanding awards are forfeited, expire or otherwise terminate without the issuance of such shares. In addition, the number of shares available for issuance under the Amended 2022 Stock Plan is subject to increase to the extent that the Company assumes, settles, or replaces any outstanding equity awards issued by the target company in connection with a merger, consolidation, or acquisition transaction. However, any available shares issuable pursuant to assumed, settled, or replaced equity awards in connection with a merger, consolidation, or acquisition transaction may only be utilized to the extent permitted under the Listing Rules of The NASDAQ Stock Market and will not be available for reissuance if such assumed or replacement awards are forfeited without the issuance of shares. Subject to adjustment as described below, no more than 7,260,000 shares of the Company’s common stock may be issued or transferred under the Amended 2022 Plan pursuant to incentive stock options. Subject to adjustment as described below, the maximum aggregate grant date fair value (as determined for financial accounting purposes) of shares of common stock granted to any director in any one calendar year, taken together with any cash fees earned by such director for services rendered during the calendar year, shall not exceed $750,000 in total value (or $1,000,000 during the calendar year in which the director’s initial term commences).
Shares of the Company’s common stock that are issued under the Amended 2022 Stock Plan or that potentially are issuable pursuant to outstanding incentive awards reduce the number of shares remaining available. All shares so subtracted from the amount available under the plan with respect to an incentive award that lapses, expires, is forfeited or for any reason is terminated, unexercised or unvested and any shares of the Company’s common stock that are subject to an incentive award that is settled or paid in cash or any other form other than shares of the Company’s common stock will automatically again become available for issuance under the plan. However, any shares not issued due to the exercise of an option by a “net exercise” or the tender or attestation as to ownership of previously acquired shares, as well as shares covered by a stock appreciation right, to the extent settled in shares of our common stock, and shares withheld by the Company to satisfy any tax withholding obligations will not again become available for issuance under the plan.
Eligibility to Receive Awards
The Administrator selects the employees, consultants and non-employee directors who will be granted awards under the Amended 2022 Stock Plan. The actual number of employees, consultants and non-employee directors who will receive an award under the Amended 2022 Stock Plan cannot be determined in advance because the Administrator has the discretion to select the participants. As of December 31, 2024, approximately 700 employees and 6 non-employee directors were eligible to participate in the Amended 2022 Stock Plan.
Stock Options
A stock option is the right to acquire shares of our common stock at a fixed exercise price for a fixed period of time. Under the Amended 2022 Stock Plan, the Administrator may grant nonqualified stock options and incentive stock options, subject to the share limitations described above.
Exercise Price of an Option
The exercise price to be paid by a participant at the time an option is exercised may not be less than 100 percent of the fair market value of one share of the Company’s common stock on the date of grant (or 110 percent of the fair market value of one share of the Company’s common stock on the date of grant of an incentive stock option if the participant owns, directly or indirectly, more than 10 percent of the total combined voting power of all classes of stock of the Company or any parent or subsidiary). However, in the event options are granted as a result of the Company’s assumption or substitution of options in a merger or acquisition, the exercise price will be the price determined by the Administrator pursuant to the conversion terms applicable to the transaction. At any time while the Company’s common stock is listed on The NASDAQ Global Market, “fair market value” under the plan means the closing sale price of a share at the end of the regular trading session on the date of grant as reported by The NASDAQ Global Market as of the date in question (or, if no shares were traded on such date, the next preceding day on which there was such a trade). As of December 31, 2024, the closing sale price of a share of the Company’s common stock on The NASDAQ Global Market was $55.28.
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Payment for the Exercise Price of an Option
The total purchase price of the shares to be purchased upon exercise of an option will be paid (i) in cash; (ii) by using a broker-assisted cashless exercise procedure pursuant to which the optionee, upon exercise of an option, irrevocably instructs a broker or dealer to sell a sufficient number of shares of the Company’s common stock or loan a sufficient amount of money to pay all or a portion of the exercise price of the option and/or any related withholding tax obligations and remit such sums to the Company and directs the Company to deliver stock certificates to be issued upon such exercise directly to such broker or dealer; (iii) by using a cashless exercise procedure pursuant to which the optionee surrenders to the Company shares of the Company’s common stock either underlying the option or that are otherwise held by the optionee; or (iv) by a combination of the foregoing methods. In the case of a “net exercise” of an option, the Company will not require a payment of the exercise price of the option from the participant but will reduce the number of shares of the Company’s common stock issued upon the exercise by the largest number of whole shares having a fair market value that does not exceed the aggregate exercise price for the shares exercised. Any shares of the Company’s common stock tendered or covered by an attestation will be valued at their fair market value on the exercise date.
Option Exercises
Options may be exercised in whole or in installments, as determined by the Administrator, and the Administrator may impose conditions or restrictions to the exercisability of an option, including that the participant remain continuously employed by the Company for a certain period or that the participant or the Company (or any subsidiary, division or other subunit of the Company) satisfy certain specified performance objectives. An option may not become exercisable, nor remain exercisable after 10 years from its date of grant (five years from its date of grant in the case of an incentive stock option if the participant owns, directly or indirectly, more than 10 percent of the total combined voting power of all classes of stock of the Company or any parent or subsidiary).
Stock Appreciation Rights
A stock appreciation right is the right to receive a payment from the Company, in the form of shares of the Company’s common stock, cash or a combination of both, equal to the difference between the fair market value of one or more shares of the Company’s common stock and a specified exercise price of such shares. Stock appreciation rights will be subject to such terms and conditions, if any, consistent with the other provisions of the Amended 2022 Stock Plan, as may be determined by the Administrator. The Administrator will have the sole discretion to determine the form in which payment of the economic value of stock appreciation rights will be made to a participant (i.e., cash, the Company’s common stock or any combination thereof) or to consent to or disapprove the election by a participant of the form of such payment.
The exercise price of a stock appreciation right will be determined by the Administrator, in its discretion, at the date of grant but may not be less than 100 percent of the fair market value of one share of the Company’s common stock on the date of grant, except as provided below in connection with certain “tandem” grants (as further defined below). However, in the event that stock appreciation rights are granted as a result of the Company’s assumption or substitution of stock appreciation rights in a merger or acquisition, the exercise price will be the price determined by the Administrator pursuant to the conversion terms applicable to the transaction. A stock appreciation right will become exercisable at such time and in such installments as may be determined by the Administrator in its sole discretion at the time of grant; provided, however, that no stock appreciation right may be exercisable after 10 years from its date of grant.
Stock appreciation rights may be granted alone or in addition to other incentive awards, or in tandem with an option, at the time of grant of the option. A stock appreciation right granted in tandem with an option shall cover the same number of shares of the Company’s common stock as covered by the option (or such lesser number as the Administrator may determine), shall be exercisable at such time or times and only to the extent that the related option is exercisable, have the same term as the option and will have an exercise price equal to the exercise price for the option. Upon the exercise of a stock appreciation right granted in tandem with an option, the option shall be canceled automatically to the extent of the number of shares covered by such exercise; conversely, upon exercise of an option having a related stock appreciation right, the stock appreciation right will be canceled automatically to the extent of the number of shares covered by the option exercise.
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Restricted Stock Awards
A restricted stock award is an award of the Company’s common stock that vests at such times and in such installments as may be determined by the Administrator and, until it vests, is subject to restrictions on transferability and/or the possibility of forfeiture. The Administrator may impose such restrictions or conditions to the vesting of restricted stock awards as it deems appropriate, including that the participant remain continuously employed by the Company for a certain period or that the participant or the Company (or any subsidiary, division or other subunit of the Company) satisfy specified performance objectives. To enforce the restrictions, the Administrator may place a legend on the stock certificates referring to such restrictions and may take other steps to enforce the restrictions.
Additionally, unless the Amended 2022 Stock Plan provides otherwise, a participant will have all voting, liquidation and other rights with respect to shares of the Company’s common stock issued to the participant as a restricted stock award upon the participant becoming the holder of record of such shares as if the participant were a holder of record of shares of the Company’s unrestricted common stock; provided that no dividends will be paid with respect any unvested restricted stock award.
Stock Unit Award or Restricted Stock Units
A stock unit award or restricted stock unit is a right to receive the fair market value of one or more shares of the Company’s common stock, payable in cash, shares of the Company’s common stock, or a combination of both, the payment, issuance, retention and/or vesting of which is subject to the satisfaction of specified conditions, which may include achievement of specified performance objectives. Stock unit awards or restricted stock units will be subject to such terms and conditions, if any, consistent with the other provisions of the Amended 2022 Stock Plan, as may be determined by the Administrator.
Performance Awards or Units
A participant may be granted one or more performance awards or units under the Amended 2022 Stock Plan, and such performance awards or units will be subject to such terms and conditions, if any, consistent with the other provisions of the Amended 2022 Stock Plan, as may be determined by the Administrator in its sole discretion, including, but not limited to, the achievement of one or more specified performance objectives.
Stock Bonuses
A participant may be granted one or more stock bonuses under the Amended 2022 Stock Plan, and such stock bonuses will be subject to such terms and conditions, if any, consistent with the other provisions of the Amended 2022 Stock Plan, as may be determined by the Administrator in its sole discretion, including, but not limited to, the achievement of one or more specified performance objectives.
Dividend Equivalents
The Administrator may pay dividends or dividend equivalents based on the dividends declared on shares of the Company’s common stock with respect to the shares underlying an incentive award, as determined by the Administrator; provided, however, no dividend equivalents may be granted with respect to shares of the Company’s common stock underlying options or stock appreciation rights or with respect to any unvested incentive awards.
Consequences of Changes in our Capital Structure
In the event that the Administrator determines that any reorganization, merger, consolidation, recapitalization, liquidation, reclassification, stock dividend, stock split, combination of shares, rights offering, divestiture or extraordinary dividend (including a spin-off) or any other similar corporate transaction or change in the corporate structure or shares of the Company affects the common stock such that any adjustment is determined by the Administrator to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be provided or made available under the Amended 2022 Stock Plan, then the Administrator may adjust:
•The number and kind of securities or other property that may be issued with respect incentive awards;
•The number and kind of securities or property subject to outstanding incentive awards; and
•The exercise price of outstanding options and stock appreciation rights.
Under appropriate circumstances, the Administrator may provide for the cancellation of outstanding incentive awards in exchange for a cash payment.
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Consequences of a Merger or Similar Transaction
For incentive awards granted under the plan on or after March 24, 2022, if a Change in Control (as defined below) occurs prior to the date on which an incentive award is vested and prior to the participant’s separation from service, if such incentive award remains outstanding following the Change in Control (whether by substitution with another award or otherwise), and if there is a termination of the participant’s employment or service with the Company and any subsidiary (or any successor) without “Good Cause” or without “Cause,” (as defined in any agreement between the participant and the Company, or if not so defined, without “Cause” as defined in the Plan), or a constructive termination, including a resignation by the participant for “Good Reason” (as may be defined in any agreement between the participant and the Company) at any time within the 24 months following the Change in Control, then the following shall apply:
•All outstanding options and stock appreciation rights shall become fully vested and exercisable;
•All incentive awards that are restricted stock awards, stock unit awards, and/or stock bonuses shall become fully vested; and
•For all incentive awards that are performance awards, the Compensation Committee shall determine the extent to which performance conditions are met considering actual performance, in accordance with the terms of the plan and the applicable award agreement.
In the event of a merger or consolidation of the Company with or into another corporation or a sale of substantially all of the stock of the Company (a “Corporate Transaction”), each outstanding incentive award (including the portion of the award that is not otherwise exercisable or non-forfeitable) shall automatically lapse without the consent of any participant, unless pursuant to the terms of such Corporate Transaction the outstanding incentive award is required or permitted to remain outstanding or is assumed by the surviving company (or its parent company) or replaced with an equivalent incentive award granted by the surviving company (or its parent company) in substitution for such outstanding incentive award. If an incentive award lapses pursuant to the preceding sentence because it was not assumed or substituted for in connection with the Corporate Transaction, then (i) all the participant’s options and stock appreciation rights shall become immediately vested and exercisable immediately prior to the consummation of the Corporate Transaction; (ii) all time-based vesting requirements on the participant’s incentive awards that are restricted stock awards, stock unit awards, and/or stock bonuses shall be deemed to be satisfied in full; and (iii) with respect to each incentive award that is a performance award, the Administrator shall determine the extent to which performance conditions are met based on actual performance achieved, in accordance with the terms of the plan and the applicable award agreement. After giving effect to the vesting acceleration described herein, the Administrator shall either (i) allow all participants to exercise all such options and stock appreciation rights to the extent vested and exercisable as of the consummation of such Corporate Transaction within a reasonable period prior to the consummation of the Corporate Transaction and cancel any outstanding incentive awards that remain unexercised or which are not otherwise vested upon consummation of the Corporate Transaction, or (ii) cancel any or all outstanding incentive awards in exchange for a payment (in cash, or in securities or other property) in an amount equal to the amount that the participant would have received (net of the exercise price) with respect to such vested incentive awards had such options and stock appreciation rights been exercised and such other vested incentive awards settled immediately prior to the consummation of the Corporate Transaction. Notwithstanding the foregoing, if an incentive award lapses upon consummation of a Corporate Transaction and such award is not vested and non-forfeitable or the exercise price with respect to any outstanding option or stock appreciation right exceeds the fair market value of the Company’s common stock immediately prior to the consummation of the Corporation Transaction, such incentive awards shall be cancelled without any payment to the participant.
For purposes of the Amended 2022 Stock Plan, a “Change in Control” of the Company occurs upon:
•The sale, lease, exchange or other transfer of substantially all of the assets of the Company (in one transaction or in a series of related transaction) to a person or entity that is not controlled, directly or indirectly, by the Company;
•The approval by the Company’s stockholders of any plan or proposal for the liquidation or dissolution of the Company;
•Any person becomes, after the effective date of the Amended 2022 Stock Plan, the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of: (i) 20 percent or more, but not 50 percent or more, of the combined voting power of the Company’s outstanding securities ordinarily having the right to vote at elections of directors, unless the transaction resulting in such ownership has been approved in advance by the continuity directors; or (ii) 50 percent or more of the combined voting power of the Company’s outstanding securities ordinarily having the right to vote at elections of directors (regardless of any approval by the continuity directors);
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•A merger or consolidation to which the Company is a party if the Company’s stockholders immediately prior to effective date of such merger or consolidation do not have “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act) immediately following the effective date of such merger or consolidation of securities of the surviving corporation represent (i) more than 50 percent but less than 80 percent of the combined voting power of the surviving corporation’s then outstanding securities ordinarily having the right to vote at elections of directors, unless such merger or consolidation has been approved in advance by the continuity directors, or (ii) 50 percent or less of the combined voting power of the surviving corporation’s then outstanding securities ordinarily having the right to vote at elections of directors (regardless of any approval by the continuity directors);
•The continuing directors (as of the effective date of the Amended 2022 Stock Plan) cease for any reason to constitute at least a majority of the Board; or
•Any other change in control of the Company of a nature that would be required to be reported pursuant to Section 13 or 15(d) of the Exchange Act, whether or not the Company is then subject to such reporting requirements.
If an incentive award is subject to Section 409A of the Code, no payment of cash or other property shall be made with respect to such incentive award until the earlier of a change in control within the meaning of Section 409A of the Code or such time as such Incentive Award would have otherwise settled in the absence of a corporate transaction.
Transferability of Awards
In general, no right or interest in any incentive award may be assigned or transferred by a participant, except by will or the laws of descent and distribution, or subjected to any lien or otherwise encumbered. However, a participant is entitled to designate a beneficiary to receive an incentive award on such participant’s death, and in the event of such participant’s death, payment of any amounts due under the Amended 2022 Stock Plan, will be made to, and exercise of any options or stock appreciation rights may be made by, such beneficiary. Additionally, upon a participant’s request, the Administrator may permit a participant to transfer all or a portion of a non-statutory option, other than for value, to certain of the participant’s family members or related family trusts, foundations or other entities. Permitted transferees of non-statutory options will remain subject to all the terms and conditions of the incentive award applicable to the participant.
Effect of Termination of Employment or Other Services
If a participant ceases to be employed by, or perform other services for the Company, all incentive awards held by the participant will be treated as set forth below unless provided otherwise in the agreement evidencing the incentive award or modified by the Administrator in its discretion as set forth below. Upon termination due to death, disability or retirement, all outstanding, exercisable options and stock appreciation rights then held by the participant will remain exercisable for a period of one year thereafter (but in no event after the expiration date of any such option or stock appreciation rights), and all options and stock appreciation rights that are not exercisable, all unvested restricted stock awards, all outstanding but unpaid stock unit awards or restricted stock units, performance awards or units and stock bonuses then held by the participant will be terminated and forfeited. Upon termination for a reason, other than death, disability or retirement, which is not also for “cause” (as defined in the Amended 2022 Stock Plan), all outstanding options and stock appreciation rights then held by the participant will, to the extent exercisable as of such termination, remain exercisable in full for a period of three months after such termination (but in no event after the expiration date of any such option or stock appreciation right). Also, upon such termination all options and stock appreciation rights that are not exercisable, all unvested restricted stock awards, and all outstanding but unpaid stock unit awards or restricted stock units, performance awards or units and stock bonuses then held by the participant will be terminated and forfeited.
If a participant is determined by the Administrator, acting in its sole discretion, to have committed any action that would constitute cause, regardless of whether such action or the Administrator’s determination occurs before or after the termination of the participant’s employment with the Company or any subsidiary, all rights of the participant under the Amended 2022 Stock Plan and any award agreements evidencing an incentive award then held by the participant shall terminate and be forfeited without notice of any kind.
The Administrator at any time (including on or after the date of grant or following termination), in connection with a participant’s termination, may cause options or stock appreciation rights held by the participant to terminate, become or continue to become exercisable and/or remain exercisable, and restricted stock awards, stock unit awards or restricted stock units, performance awards or units or stock bonuses then held by the participant to, terminate, vest or become free of restrictions and conditions to payment, as the case may be.
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Amendment and Termination
Unless terminated earlier, the Amended 2022 Stock Plan will terminate on the day immediately preceding the tenth anniversary of its effective date. Incentive awards outstanding at the time the Amended 2022 Stock Plan is terminated may continue to be exercised, earned or become free of restriction, according to their terms. The Board may suspend or terminate the Amended 2022 Stock Plan or any portion of the Amended 2022 Stock Plan at any time. In addition to the Administrator’s authority to amend the Amended 2022 Stock Plan with respect to participants resident outside of the United States or employed by a non-U.S. subsidiary, the Board may amend the Amended 2022 Stock Plan from time to time in order that incentive awards under the Amended 2022 Stock Plan will conform to any change in applicable laws or regulations or in any other respect that the Board may deem to be in the Company’s best interests; provided, however, that no amendments to the Amended 2022 Stock Plan will be effective without stockholder approval, if it is required under Section 422 of the Code or the Listing Rules of The NASDAQ Stock Market, or if the amendment seeks to increase the number of shares reserved for issuance under the Amended 2022 Stock Plan (other than as a result of a permitted adjustment upon certain corporate events, such as stock splits) or to modify the prohibitions on underwater option re-pricing discussed above. Termination, suspension or amendment of the Amended 2022 Stock Plan will not adversely affect any outstanding incentive award without the consent of the affected participant, except for adjustments in the event of changes in the Company’s capitalization or a “change in control” of the Company.
Federal Tax Consequences to Participants as a Result of Receiving an Award under the Stock Plan
The following paragraphs are a summary of the general federal income tax consequences to U.S. taxpayers resulting from awards granted under the Amended 2022 Stock Plan based on federal income tax laws in effect on the date of this Proxy Statement.
This summary is not intended to be exhaustive and does not address all matters that may be relevant to a particular participant based on his or her specific circumstances. The summary expressly does not discuss the income tax laws of any state, municipality, or non-U.S. taxing jurisdiction, or the gift, estate, excise (including the rules applicable to deferred compensation under Section 409A of the Code), or other tax laws other than federal income tax law. The following is not intended or written to be used, and cannot be used, for the purposes of avoiding taxpayer penalties. Because individual circumstances may vary, the Company advises all participants to consult their own tax advisors concerning the tax implications of awards granted under the Amended 2022 Stock Plan.
Nonqualified Stock Options
No taxable income generally is reportable when a nonqualified stock option is granted to a participant. Upon exercise, the participant generally will recognize ordinary income in an amount equal to the difference between the fair market value of the purchased shares on the exercise date and the exercise price of the option. Any additional gain or loss recognized upon any later disposition of the shares would be a capital gain or loss.
Incentive Stock Options
No taxable income is reportable when an incentive stock option is granted or exercised, unless the alternative minimum tax, or AMT, rules apply, in which case AMT taxation will occur in the year of exercise. If the participant exercises the option and then later sells or otherwise disposes of the shares more than two years after the grant date and more than one year after the exercise date, the difference between the sale price and the exercise price will be taxed as a capital gain or loss. If the participant exercises the option and then later sells or otherwise disposes of the shares before the end of the two- or one-year holding periods described above, the participant generally will have ordinary income at the time of the sale equal to the difference between the fair market value of the shares on the exercise date, or the sale price, if less, and the exercise price of the option. Any additional gain or loss generally will be taxable at long- term or short-term capital gain rates, depending on whether the participant has held the shares for more than one year.
Restricted Stock
A participant will not recognize taxable income upon the grant of restricted stock unless the participant elects to be taxed at that time. Instead, a participant generally will recognize ordinary income at the time of vesting equal to the difference between the fair market value of the shares on the vesting date and the amount, if any, paid for the shares. However, the recipient of a restricted stock award may elect, through a filing with the Internal Revenue Service, to recognize income at the time he or she receives the award in an amount equal to the fair market value of the shares underlying the award (less any cash paid for the shares) on the date the award is granted.
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Stock Unit Awards and Restricted Stock Units
A participant generally will not recognize taxable income upon grant of restricted stock units. Instead, the participant generally will recognize ordinary income at the time the restricted stock units are settled equal to the fair market value of the shares on the settlement date less the amount, if any, paid for the shares.
Stock Appreciation Rights
A participant generally will not recognize taxable income upon the grant of a stock appreciation right. Upon exercise, the participant generally will recognize ordinary income in an amount equal to the difference between the fair market value of the exercised shares on the exercise date and the corresponding exercise price of the stock appreciation right. Any additional gain or loss recognized upon any later disposition of the shares would be a capital gain or loss.
Dividend Equivalents
A participant generally will recognize ordinary income each time a payment is made or shares are received pursuant to the dividend equivalent equal to the fair market value of the payment made or shares received.
Tax Effects as a Result of Grants of Awards under the Stock Plan
We generally will be entitled to a tax deduction in connection with the vesting, settlement or exercise of an award under the Amended 2022 Stock Plan in an amount equal to the ordinary income realized by a participant at the time the participant recognizes such income, such as when a participant exercises a nonqualified stock option. Special rules limit the deductibility of compensation paid to our certain executive officers. In addition, Section 162(m) of the Code places a limit of $1 million on the amount of compensation that we may deduct as a business expense in any year with respect to certain of our most highly paid executive officers. While the Compensation Committee considers the deductibility of compensation as one factor in determining executive compensation, the Compensation Committee retains the discretion to award and pay compensation that is not deductible as it believes that it is in the best interests of our stockholders to maintain flexibility in our approach to executive compensation and to structure a program that we consider to be the most effective in attracting, motivating and retaining key employees.
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Historical Plan Benefits
The following table sets forth, for each of the individuals and groups indicated, the total number of shares of our common stock subject to stock awards that have been granted (even if not currently outstanding) under the Stock Plan, since it originally became effective through March 14, 2025.
Name and position(1) | Number of shares subject to stock awards(2) | |||||||
| Nikhil Lalwani | 655,021 | |||||||
| President and Chief Executive Officer | ||||||||
| Stephen P. Carey | 348,523 | |||||||
| Senior Vice President, Finance and Chief Financial Officer | ||||||||
Christopher K. Mutz(3) | 123,326 | |||||||
| Head of Rare Disease | ||||||||
Ori Gutwerg(3) | 102,543 | |||||||
| Senior Vice President, Generics | ||||||||
Meredith W. Cook(4) | 77,806 | |||||||
| Senior Vice President, General Counsel and Corporate Secretary | ||||||||
| All current executive officers as a group (9 persons) | 1,536,747 | |||||||
All current directors who are not executive officers as a group (6 persons)(5) | 246,242 | |||||||
| All employees, including all current officers who are not executive officers, as a group | 2,774,859 | |||||||
__________________________
(1)No awards have been granted under the Stock Plan to any associate of any of our directors (including nominees) or executive officers, and no person, other than Mr. Lalwani and Mr. Carey, has received 5% or more of the total awards granted under the Stock Plan since its inception.
(2)These stock awards consist of stock options, restricted stock awards and performance stock units.
(3)Messrs. Gutwerg and Mutz commenced employment with us on February 15, 2021.
(4)Ms. Cook commenced employment with us on July 18, 2022.
(5)All the non-employee directors who are nominees for election as a director are included within this group. The total number of shares subject to stock awards that have been granted to each director on an individual basis are as follows: Patrick Walsh: 55,346; Thomas Haughey: 46,160; Matthew Leonard: 11,993; Antonio Pera: 54,061; Renee Tannenbaum: 24,621, and Jeanne Thoma: 54,061.
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Equity Compensation Plan Information
The following table provides information as of December 31, 2024 with respect to the shares of our common stock that may be issued under our existing equity compensation plans.
| 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 ($)(1) (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 | 398,738 | 54.22 | 2,024,213 | (2) | |||||||||||||||||||
| Equity Compensation Plans Not Approved by Security Holders | 185,289 | (3) | 29.64 | — | |||||||||||||||||||
| Total | 584,027 | 46.42 | 2,024,213 | ||||||||||||||||||||
__________________________
(1)The weighted average exercise price does not take into account the shares issuable upon the vesting of the outstanding restricted stock awards, which have no exercise price.
(2)Includes 1,955,102 shares available for future issuance under the Stock Plan. This number also includes 69,111 shares available for future issuance under the Company’s 2016 Employee Stock Purchase Plan.
(3)Consists of shares underlying stock options granted outside of our Stock Plan pursuant to inducement awards to Mr. Lalwani on September 8, 2020, and to each of Messrs. Gutwerg and Mutz on February 15, 2021. These awards vested in four equal installments on the first four anniversaries of their respective grant dates.
New Plan Benefits under the Amended 2022 Stock Plan
Future awards under the Amended 2022 Stock Plan will be made at the discretion of the Administrator. Therefore, the benefits and amounts that will be received or allocated under the Amended 2022 Stock Plan in the future are not determinable at this time.
Considerations of the Board
We believe that the approval of ANI's Amended 2022 Stock Plan is essential to our continued success. Our employees and consultants are our most valuable asset. Equity awards such as those provided under the Amended 2022 Stock Plan will substantially assist us in continuing to attract and retain employees, consultants and non-employee directors in the extremely competitive labor markets in which we compete. Such awards also are crucial to our ability to motivate employees and consultants to achieve our goals. We will benefit from increased stock ownership by selected executives, other employees, consultants and non-employee directors. The increase in the reserve of common stock available under the Amended 2022 Stock Plan will enable us to continue to grant such awards to executives, other eligible employees, our consultants and non-employee directors. If our stockholders do not approve the Amended 2022 Stock Plan by voting for Proposal 5, the share increase will not become effective.
Required Vote; Recommendation of the Board
The affirmative vote of a majority of the stock represented and entitled to vote on this proposal is required to vote “FOR” the approval of this Proposal 5.
THE BOARD RECOMMENDS THAT YOU VOTE “FOR” THE APPROVAL OF THE AMENDED AND RESTATED 2022 STOCK INCENTIVE PLAN.
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PROPOSAL 6: APPROVAL OF THE AMENDED AND RESTATED 2016 EMPLOYEE STOCK PURCHASE PLAN
Our Board is asking its stockholders to approve the amendment and restatement of the ANI Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan (the “ESPP”). The ESPP first became effective on July 1, 2016.
On March 27, 2025, the Board approved and adopted the Amended and Restated ANI Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan (the “Amended and Restated ESPP”), subject to stockholder approval, and accordingly, our Board directed that the Amended and Restated ESPP be submitted to the stockholders of the Company for approval at the Annual Meeting. If the stockholders approve the Amended and Restated ESPP, it will become effective on May 22, 2025 (the “Amendment Effective Date”).
Our Board expects that the Amended and Restated ESPP will be an important component of the overall compensation package that we offer to our employees. The Amended and Restated ESPP provides eligible employees with an opportunity to purchase shares (“Shares”) of ANI common stock, par value $0.0001 per share, at a discount from market value and to benefit from stock price appreciation, thus enhancing the alignment of employee and stockholder interests.
The Amended and Restated ESPP is broad-based and allows us to provide an incentive to attract, retain and reward eligible employees of the Company and any participating parent and subsidiary companies (whether now existing or subsequently established) with the opportunity to periodically purchase Shares at a discount through their accumulated periodic payroll deductions. The Board believes that employees’ economic interest, as stockholders, in the Company's performance and success will contribute to our long-term growth and profitability. The Amended and Restated ESPP is intended to qualify as an “Employee Stock Purchase Plan” under Section 423 of the Code. Favorable tax treatment is available for United States tax residents participating in a Section 423 plan.
As of March 24, 2025, only 69,111 Shares remain available for purchase under the ESPP. The Board has determined that this is insufficient for our continued maintenance of the ESPP and if stockholders do not approve the Amended and Restated ESPP, we anticipate that we would not be able to continue to maintain the ESPP in future years at the levels we believe appropriate to incentivize, attract and retain employees and would be required to consider other compensation alternatives.
Summary of Key Changes in the Amended and Restated ESPP
The changes made as part of the amendment and restatement set forth in the Amended and Restated ESPP include:
•increasing the number of Shares authorized for purchase under the Amended and Restated ESPP by 500,000 Shares (plus the number of Shares authorized for purchase under the ESPP on the Amendment Effective Date);
•aligning the definition of “change in control” with that in our Amended 2022 Stock Plan; and
•making other clarifying changes to allow the Company maximum flexibility for maintaining the Amended and Restated ESPP to the full extent permitted under Code Section 423.
Description of the Amended and Restated ESPP
The principal provisions of the Amended and Restated ESPP are summarized below. This summary is not a complete description of all of the Amended and Restated ESPP’s provisions, and is qualified in its entirety by reference to the text of the Amended and Restated ESPP, which is attached to this proxy statement as Appendix C.
Purpose
The Amended and Restated ESPP is intended to provide employees of the Company and its designated parents and subsidiaries with an opportunity to acquire Shares through overlapping or consecutive offer periods. The Administrator (defined below) has authority to determine the duration of each offer period; provided that an offer period may not be longer than 27 months.
Shares Subject to the Amended and Restated ESPP
The Amended and Restated ESPP provides employees with the right to purchase Shares through payroll deduction. The maximum number of Shares which may be sold under the Amended and Restated ESPP is 500,000 Shares plus the number of Shares that are authorized but unissued on the Amendment Effective Date, subject to adjustment as described below. The Administrator has authority to specify the maximum number of Shares that may be purchased by a single participant and by all participants, in the aggregate, for a particular purchase period. If the Administrator does not specify a limit on the maximum number of Shares that an individual participant may purchase, the limitation for the purchase period will be 250 Shares, subject to adjustment as summarized below.
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In the event that any change is made to our outstanding common stock (whether by reason of any stock split, reverse stock split, stock dividend, combination or reclassification of the common stock or other similar corporate transaction or event that affects the Shares such that the Administrator determines an adjustment to be appropriate), appropriate adjustments will be made to the maximum number of Shares of common stock that may be purchased in any offer period or purchase period under the Amended and Restated ESPP, as well as to any other terms that the Administrator determines require adjustment.
Share Pro-Ration
If the Administrator determines that on the last day of any purchase period, the number of Shares with respect to which options are to be exercised exceeds (i) the number of Shares then available for sale under the Amended and Restated ESPP or (ii) the number of Shares available for sale under the Amended and Restated ESPP on the first day of an offer period (of one or more of the offer periods in which such exercise date occurs), the Administrator may determine that the Company should make pro-rata allocations of Shares of Common Stock available for purchase on the first day of the offer period, in a uniform and nondiscriminatory manner. The Administrator may determine that the Company should either continue all offer periods then in effect or terminate any one or more offer periods then in effect.
Administration
The Amended and Restated ESPP will be administered by the Board or a committee appointed by the Board (the “Administrator”). Subject to the terms of the Amended and Restated ESPP, the Administrator has authority to construe, interpret and apply the terms of the Amended and Restated ESPP, to determine eligibility and to adjudicate all disputed claims filed under the Amended and Restated ESPP.
Eligibility
Unless the Administrator decides to change eligibility for any specific offer period, any employee of the Company or any of its designated parents and subsidiaries who has been employed by the Company or such designated parents and subsidiaries for at least 1 month, and whose customary employment with the Company is more than 20 hours per week and more than five months in any calendar year will be eligible to participate in the Amended and Restated ESPP, subject to signing an enrollment subscription agreement and other enrollment procedures. Additionally, the Administrator may also exclude, for any particular offer period, employees who satisfy the eligibility requirements of the Amended and Restated ESPP, but who are subject to rules or laws of foreign jurisdictions that prohibit participation in the Amended and Restated ESPP, certain highly compensated employees, and any employee who has not been employed for at least two years. An employee who is on an authorized sick leave, military leave or other leave of absence will remain an employee for purposes of the Amended and Restated ESPP unless the period of leave exceeds 90 days and the employee’s right to reemployment is not guaranteed either by statute or contract.
As of January 2025, the Company had approximately 700 employees, including 9 executive officers, who were eligible to participate in the Amended and Restated ESPP.
Special Limitations
The Amended and Restated ESPP imposes certain limitations upon a participant’s right to acquire common stock, including the following:
•No employee will be granted an option under the Amended and Restated ESPP if after such purchase the employee would own 5% or more of the total combined voting power or value of all classes of stock of the Company or any subsidiary.
•No participant will be granted rights to purchase stock under all employee stock purchase plans of the Company and its parents and subsidiaries to purchase more than $25,000 worth of common stock (valued at the time each purchase right is granted) for each calendar year in which such right is outstanding at any time.
•No participant may purchase more than 250 Shares in any particular purchase period, subject to adjustment as described above, unless a different limit is determined by the Administrator for such purchase period.
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Method of Payment
Shares will be available under the Amended and Restated ESPP through a series of purchase periods. Each purchase period is a period of approximately six months, or such other period designated by the Administrator. Payment for Shares purchased under the Amended and Restated ESPP will be made by payroll deduction, subject to a minimum deduction of 1% of compensation per pay period and a maximum deduction of 10% of compensation per pay period (unless the Administrator establishes a different maximum percentage prior to the initiation of the applicable purchase period or a lesser maximum amount is required under applicable law). Payroll deductions will occur over each purchase period. All payroll deductions will be withheld in whole percentages only. The payroll deduction amounts will be held in a recordkeeping account for the participant until the purchase of the Shares. Interest will not be paid on the amount credited to the account.
Notwithstanding the above, to the extent necessary to comply with applicable law (including prohibiting a participant from holding more than $25,000 worth of common stock), the Company may reduce a participant’s payroll deductions to 0%. The payroll deductions will recommence at the rate elected by the participant once permitted by applicable law, unless the participant sooner withdraws from the Amended and Restated ESPP.
A participant may discontinue participation in the Amended and Restated ESPP or may increase or decrease the rate of payroll deductions any time during an offer period, with such change becoming effective on the first full payroll period commencing ten business days after the Company’s receipt of the participant’s change in status notice (unless the Company elects to process the change sooner).
Payroll deductions received or held by the Company under the Amended and Restated ESPP may be used for any corporate purpose, and the Company will not be obligated to segregate such payroll deductions from its general assets.
Purchase of Shares
Unless a participant withdraws from the Amended and Restated ESPP, a participant’s option to purchase Shares will automatically be exercised on the last day of each purchase period, by applying the accumulated payroll deductions in the participant’s account to purchase the number of whole Shares that can be purchased with the amount credited to the account (subject to the limitation on the maximum number of Shares purchasable per participant described above). Fractional shares will not be purchased, unless otherwise determined by the Administrator. Any amount remaining in the account after the purchase will be carried over to the next purchase period if not withdrawn by the participant.
Purchase Price
The purchase price per Share will not be less than the lower of (i) 85% of the fair market value of a Share on the first day of an offer period, or (ii) 85% of the fair market value of a Share on the last day of a purchase period. The fair market value of a Share of our common stock on a given date, if our common stock is listed on any established stock exchange or national market system, such as the Nasdaq Global Market, is the closing price per Share as reported in the Wall Street Journal or such other source as the Administrator deems reliable. If the common stock is regularly quoted on an automated quotation system (such as the OTC Bulletin Board) or by a recognized securities dealer, fair market value of a Share will be the mean between the high bid and low asked prices for the common stock on the date of determination. In the absence of the two above options for determining fair market value, the Administrator will determine fair market value in good faith. As of December 31, 2024, the closing share price of a share of the Company's common stock on the Nasdaq Global Market was $55.28.
Withdrawal By Participant
No later than 14 days (or such other period as determined by the Administrator) prior to the exercise date, a participant may withdraw all (but not less than all) of the payroll deductions credited to the participant’s account and not yet used to exercise the participant’s option under the Amended and Restated ESPP. In this case, all of the participant’s payroll deductions credited to the participant’s account will be paid to the participant as promptly as practicable after receipt of notice of withdrawal, the participant’s option for the offer period will be automatically terminated, and no further payroll deductions for the purchase of shares will be made during the offer period. Alternatively, a participant may, no later than 14 days (or such other period as determined by the Administrator) prior to the exercise date, terminate future payroll deductions but allow accumulated payroll deductions to be used to exercise the participant’s option under the Amended and Restated ESPP at any time. In this case, no further payroll deductions for the purchase of Shares will be made during the applicable offer period, all of the participant’s payroll deductions credited to the participant’s account will be applied to the exercise of the participant’s option on the last day of the applicable purchase period, after such time, the participant’s option for the offer period will be automatically terminated. If the participant withdraws all the amounts credited to the participant’s account, then the participant will cease to participate in the offer period and may not resume participation until the next offer period.
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Termination of Employment
The effects of a termination of employment of a participant under the Amended and Restated ESPP depend on the timing of when a participant terminates employment relative to the next scheduled exercise date.
•Termination of employment more than three months from the next scheduled exercise date: Upon a participant’s termination of employment, the payroll deductions credited to such participant’s account during the offer period but not yet used to exercise the option will be returned to the participant or, in the case of the participant’s death, the participant’s designated beneficiary, and the participant’s option will be automatically terminated.
•Termination of employment within three months of the next scheduled exercise date: Upon a participant’s termination of employment, the payroll deductions credited to the participant’s account during the offer period but not yet used to exercise the option will be applied purchase Common Stock on the next exercise date, unless the participant (or in the case of a participant’s death, the participant’s designated beneficiary) withdraws from the Amended and Restated ESPP. In this case, no further payroll deductions will be credited to the participant’s account following the participant’s termination of employment, and the participant’s option under the Amended and Restated ESPP will be automatically terminated after the purchase of Common Stock on the next scheduled exercise date.
Change in Control
In the event of a change in control, which has the same meaning as in our Amended 2022 Stock Plan, each option under the Amended and Restated ESPP will be assumed by the successor corporation or a parent or subsidiary of the successor corporation, unless the Administrator elects to shorten the then-in process offer period and set a new exercise date. If the Administrator shortens the offer period in lieu of assumption, the Administrator will notify each participant in writing at least ten business days prior to the new exercise date of the change and inform the participants that either:
•The participant’s option will be exercised automatically on the new exercise date, unless the participant withdraws from the offer period prior to this new exercise date; or
•The Company will pay the participant on the new exercise date an amount in cash, cash equivalents, or property that is equal to the difference in the fair market value of the Shares subject to the option and the purchase price due had the participant’s option been exercised automatically (as described above).
Termination and Amendment of the Amended and Restated ESPP
The Administrator may terminate the Amended and Restated ESPP at any time. If approved by our stockholders, the Amended and Restated ESPP will terminate on the twentieth anniversary of July 1, 2016, unless earlier terminated by the Administrator or reapproved by our stockholders.
The Administrator may amend the Amended and Restated ESPP at any time, for any reason, except that the Administrator must seek stockholder approval to the extent required by Section 423 of the Code.
Transferability
No payroll deductions credited to a participant’s account, rights with regard to the exercise of an option or to receive Shares under the Amended and Restated ESPP may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and distribution, or to a designated beneficiary) by a participant.
Federal Income Tax Consequences
Payroll deductions to the Amended and Restated ESPP are made on an after-tax basis, which means that the applicable federal and state tax withholding is applied to a participant’s compensation before Amended and Restated ESPP contributions are deducted. The Amended and Restated ESPP is intended to be an “employee stock purchase plan” within the meaning of Section 423. Under a plan which so qualifies, no taxable income will be recognized by a participant subject to U.S. taxation, and no deductions will be allowable to us, upon either the grant or the exercise of the purchase rights. Taxable income will not be recognized until there is a sale or other disposition of the Shares acquired under the Amended and Restated ESPP or in the event the participant should die while still owning the purchased Shares.
If the participant sells or otherwise disposes of the purchased Shares within two years after the beginning of the offer period in which the Shares were acquired or within one year after the purchase date on which those Shares were actually acquired, then the participant will recognize ordinary income in the year of sale or disposition equal to the amount by which the fair market value of the Shares on the purchase date exceeded the purchase price paid for those Shares. We will be entitled to an income tax deduction, for the taxable year in which such disposition occurs, equal in amount to such excess.
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If the participant sells or otherwise disposes of the purchased Shares more than one year after the purchase date on which those Shares were actually acquired and more than two years after the beginning of the offer period in which the Shares were acquired, or in the event of the death of the participant while owning the Shares, and the purchase price of the Shares is less than 100% of the fair market value of the Shares on the first day of the applicable purchase period, the participant will recognize ordinary income in the year of sale or disposition equal to the lesser of (i) the amount by which the fair market value of the Shares on the sale or disposition date exceeded the purchase price paid for those Shares or (ii) 15% of the fair market value of the Shares on the start date of the purchase period in which such Shares were acquired. Any additional gain upon the disposition will be taxed as a long-term capital gain. We will not be entitled to an income tax deduction with respect to such disposition.
The foregoing summary of the effect of federal income taxation upon the participant with respect to Shares purchased under the Amended and Restated ESPP does not purport to be complete. Reference should be made to the applicable provisions of the Code. In addition, the summary does not discuss the tax implications of a participant’s death or the provisions of income tax laws of any municipality, state or foreign country in which the participant may reside.
New Plan Benefits
The benefits to be received by our executive officers and employees under the Amended and Restated ESPP are not determinable because, under the terms of the Amended and Restated ESPP, the amount of future purchases of Common Stock are based upon elections made by eligible employees (subject to the limitations and terms above). Our non-employee directors are not eligible to participate in the Amended and Restated ESPP.
Accounting Treatment
Pursuant to the accounting principles which are applicable to employee stock purchase plans, the fair value of each purchase right granted under the Amended and Restated ESPP is charged as a direct compensation expense to our reported earnings over the purchase period to which that purchase right pertains. The fair value of each such purchase right will be determined as of its grant date.
Required Vote; Recommendation of the Board
The affirmative vote of a majority of the stock represented and entitled to vote on this proposal, is required to vote “FOR” the approval of this Proposal 5.
THE BOARD RECOMMENDS THAT YOU VOTE “FOR” THE APPROVAL OF THE AMENDED AND RESTATED 2016 EMPLOYEE STOCK PURCHASE PLAN.
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PRINCIPAL STOCKHOLDERS
The following table sets forth information regarding the beneficial ownership of our Common Stock and Class C Special Stock as of March 14, 2025 with respect to:
•each of our directors and NEOs;
•all directors and executive officers as a group; and
•each person who is known to own beneficially more than 5% of our Common Stock or Class C Special Stock.
In accordance with SEC rules, each listed person’s beneficial ownership includes:
•all shares the Stockholder actually owns beneficially or of record;
•all shares over which the Stockholder has or shares voting or investment power; and
•all shares the Stockholder has the right to acquire within 60 days.
Unless otherwise indicated, all shares are or will be owned directly, and the indicated person has or will have sole voting and/or investment power. Unless otherwise indicated, the address of each person listed in the table is do ANI Pharmaceuticals, Inc., 210 Main Street West, Baudette, Minnesota 56623.
Beneficial ownership is determined in accordance with the rules of the SEC. The applicable percentage of ownership for each Stockholder is based on 21,600,973 shares of Common Stock and 10,864 shares of Class C Special Stock outstanding as of March 14, 2025.
| Common Stock Beneficially Owned | Class C Special Stock Beneficially Owned | |||||||||||||||||||||||||
| Name of Beneficial Owner | Number(1) | Percent | Number(1) | Percent | ||||||||||||||||||||||
| 5% Stockholders or holders of Class C Special Stock: | ||||||||||||||||||||||||||
BlackRock, Inc.(2) | 2,524,660 | 11.7 | % | — | — | |||||||||||||||||||||
Vanguard Group(3) | 1,288,972 | 6.0 | % | — | — | |||||||||||||||||||||
Meridian Venture Partners II, L.P.(4) | 1,164,381 | 5.4 | % | — | — | |||||||||||||||||||||
Millennium Management LLC(5) | 1,091,003 | 5.1 | % | — | — | |||||||||||||||||||||
Louis W. Sullivan, M.D.(6) | — | — | 2,777 | 25.6 | % | |||||||||||||||||||||
Hans Michael Jebsen(7) | — | — | 2,777 | 25.6 | % | |||||||||||||||||||||
Angela Ho(8) | — | — | 2,777 | 25.6 | % | |||||||||||||||||||||
Marcus Jebsen(9) | — | — | 1,388 | 12.8 | % | |||||||||||||||||||||
| Named Executive Officers and Directors: | ||||||||||||||||||||||||||
Thomas Haughey(10) | 56,160 | * | — | — | ||||||||||||||||||||||
Matthew Leonard(11) | 11,993 | * | — | — | ||||||||||||||||||||||
Antonio Pera(12) | 47,061 | * | — | — | ||||||||||||||||||||||
Muthusamy Shanmugam(13) | 715,159 | 3.3 | % | — | — | |||||||||||||||||||||
Renee Tannenbaum(14) | 22,621 | * | — | — | ||||||||||||||||||||||
Jeanne Thoma(15) | 56,633 | * | — | — | ||||||||||||||||||||||
Patrick Walsh(16) | 79,346 | * | — | — | ||||||||||||||||||||||
Nikhil Lalwani(17) | 534,509 | 2.5 | % | — | — | |||||||||||||||||||||
Stephen P. Carey(18) | 251,455 | 1.2 | % | — | — | |||||||||||||||||||||
Christopher Mutz(19) | 124,754 | * | — | — | ||||||||||||||||||||||
Ori Gutwerg(20) | 88,050 | * | — | — | ||||||||||||||||||||||
Meredith W. Cook(21) | 65,814 | * | — | — | ||||||||||||||||||||||
| All executive officers and directors as a group (15 persons) | 2,397,266 | 11.1 | % | — | — | |||||||||||||||||||||
__________________________
*Indicates beneficial ownership of less than 1%.
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(1)Beneficial ownership is determined in accordance with rules of the SEC, and includes generally voting power and/or investment power with respect to securities. Shares of common stock and class C special stock subject to options or warrants currently exercisable, or exercisable within 60 days of March 14, 2025, are deemed outstanding for computing the percentage of the person holding such options but are not deemed outstanding for computing the percentage of any other person. Except as indicated by footnote, the Company believes that the persons named in this table, based on information provided by such persons, have sole voting and investment power with respect to the shares of common stock and class C special stock indicated. As of March 14, 2025, there were 22,162,475 shares of common stock issued, 21,600,973 shares of common stock outstanding and 10,864 shares of class C special stock issued and outstanding.
(2)Based solely on Schedule 13G/A filed by BlackRock, Inc. on January 23, 2024. According to the Schedule 13G/A, the address of BlackRock, Inc. is 50 Hudson Yards, New York, NY 10001.
(3)Based solely on Schedule 13G filed by The Vanguard Group on February 13, 2024. According to the Schedule 13G, the address of The Vanguard Group is 100 Vanguard Blvd, Malvern, PA 19355.
(4)Based solely on Schedule 13D/A filed by Meridian Venture Partners II, L.P. on March 13, 2025. According to the Schedule 13D/A, the address for Meridian Venture Partners II, L.P is 259 N. Radnor-Chester Road, Suite 130, Radnor, Pennsylvania 19087.
(5)Based solely on Schedule 13G filed by Millennium Management LLC on January 21, 2025. According to the Schedule 13G, the address of Millennium Management LLC is 399 Park Avenue, New York, NY 10022.
(6)The address of Louis W. Sullivan, M.D. is 5287 North Powers Ferry Road, Atlanta, GA 30327.
(7)The address of Hans Michael Jebsen is c/o Jebsen & Co. Ltd., 28/F Caroline Center, 28 Yun Ping Road, Causeway Bay, Hong Kong, China.
(8)The address of Angela Ho is 386 Columbus Avenue, Apt. 16B, New York, NY 10024.
(9)The address of Marcus Jebsen is c/o MF Jebsen International Ltd., Island Place Tower, 29th Floor, 510 King’s Road, North Point, Hong Kong, China.
(10)These shares include options to purchase 4,634 shares of the Company’s common stock currently exercisable or exercisable within 60 days of March 14, 2025 and 4,410 shares of unvested restricted stock.
(11)These shares include 9,466 shares of unvested restricted stock.
(12)These shares include options to purchase 16,024 shares of the Company’s common stock currently exercisable or exercisable within 60 days of March 14, 2025 and 4,410 shares of unvested restricted stock.
(13)These shares include 29,377 shares held directly by Mr. Shanmugam, 33,113 shares of unvested restricted stock, 15,049 shares of unvested Performance Stock Units (PSUs), 5,000 shares of the Company's common stock held of record by SS Pharma LLC, of which Mr. Shanmugam is the sole managing member, and 632,620 shares of the Company’s common stock held of record by Esjay LLC, of which Mr. Shanmugam is the sole managing member.
(14)These shares include 8,859 shares of unvested restricted stock.
(15)These shares include options to purchase 16,024 shares of the Company’s common stock currently exercisable or exercisable within 60 days of March 14, 2025 and 4,410 shares of unvested restricted stock.
(16)These shares include options to purchase 4,634 shares of the Company’s common stock currently exercisable or exercisable within 60 days of March 14, 2025 and 4,410 shares of unvested restricted stock.
(17)These shares include options to purchase 138,027 shares of the Company’s common stock currently exercisable or exercisable within 60 days of March 14, 2025, 267,039 shares of unvested restricted stock, and 89,152 shares of unvested PSUs.
(18)These shares include options to purchase 87,914 shares of the Company’s common stock currently exercisable or exercisable within 60 days of March 14, 2025, 77,982 shares of unvested restricted stock, and 23,532 shares of unvested PSUs.
(19)These shares include options to purchase 33,758 shares of the Company’s common stock currently exercisable or exercisable within 60 days of March 14, 2025, 54,062 shares of unvested restricted stock, and 20,321 shares of unvested PSUs.
(20)These shares include options to purchase 13,204 shares of the Company’s common stock currently exercisable or exercisable within 60 days of March 14, 2025, 41,902 shares of unvested restricted stock, and 15,932 shares of unvested PSUs.
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(21)These shares include 43,767 shares of unvested restricted stock, and 14,631 shares of unvested PSUs.
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
In connection with our acquisition of Novitium, we entered into employment agreements with the two executives and founders of Novitium, Muthusamy Shanmugam and Chad Gassert. Both serve as executive officers of the Company and Mr. Shanmugam was also appointed to the board of directors. Mr. Shanmugam holds an interest in Scitus Pharma Services (“Scitus”), which provides clinical research services to Novitium, SS Pharma LLC (“SS Pharma”), which acquires and supplies API to Novitium, Esjay Pharma LLC (“Esjay”), which provided research and development and facilities consulting services through September 30, 2022, SThree Chemicals Pvt Ltd (“SThree”), which acquires and supplies API to Novitium; and Nuray Chemical Private Limited (“Nuray”), which manufactures and supplies API to Novitium. Mr. Gassert holds an interest in Scitus. Amounts paid to these entities in the fiscal year ended December 31, 2024 are as follows: Scitus, $2,758,631; SS Pharma, $1,244,478; Esjay, $114,751; SThree, $11,427,962; and Nuray, $0.
During 2023, the Company paid cash consideration to Mr. Shanmugam and Esjay, and Mr. Gassert's company Chali Properties LLC, totaling $6,684,930 and $1,903,183, respectively, for their portion of the cash consideration due to them as part of the Novitium acquisition for the achievement of the "ANDA Filing Earn-Out," as defined in the Novitium acquisition agreement. In 2024, the Company paid Mr. Shanmugam and Esjay, and Mr. Gassert's company Chali Properties LLC, approximately $6,667,746 and $1,898,290, respectively, for their portion of the cash consideration due to them as part of the Novitium acquisition.
Policies and Procedures for Related Party Transactions
Our Board has delegated to the Audit and Finance Committee, pursuant to the terms of a written policy, the authority to review, approve and ratify related party transactions. If it is not feasible for the Audit and Finance Committee to take an action with respect to a proposed related party transaction, our Board or another committee of the Company’s Board, may approve or ratify it. No member of the Board or any committee may participate in any review, consideration or approval of any related party transaction with respect to which such member or any of his or her immediate family members is the related party.
The Company’s policy defines a “related party transaction” as a transaction, arrangement or relationship (or any series of similar transactions, arrangements or relationships) in which the Company (including any of its subsidiaries) were, are or will be a participant and in which any related party had, has or will have a direct or indirect interest.
Prior to entering into or amending any related party transaction, the party involved must provide notice to the Company’s finance department of the facts and circumstances of the proposed transaction, including:
•The related party’s relationship to the Company and his or her interest in the transaction;
•The material facts of the proposed related party transaction, including the proposed aggregate value of such transaction or, in the case of indebtedness, the amount of principal that would be involved;
•The purpose and benefits of the proposed related party transaction with respect to the Company;
•If applicable, the availability of other sources of comparable products or services; and
An assessment of whether the proposed related party transaction is on terms that are comparable to the terms available to an unrelated third party or to employees generally.
If the Company’s finance department determines the proposed transaction is a related party transaction and the amount involved will or may be expected to exceed $10,000 in any calendar year, the proposed transaction is submitted to the Audit and Finance Committee for its prior review and approval or ratification. In determining whether to approve or ratify a proposed related party transaction, the Audit and Finance Committee will consider, among other things, the following:
•The purpose of the transaction;
•The benefits of the transaction to the Company;
•The impact on a director’s independence in the event the related party is a non-employee director, an immediate family member of a non-employee director or an entity in which a non-employee director is a partner, stockholder or executive officer;
•The availability of other sources for comparable products or services;
•The terms of the transaction; and
•The terms available to unrelated third parties or to employees generally.
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Related party transactions that involve $10,000 or less must be disclosed to the Audit and Finance Committee but are not required to be approved or ratified by the Audit and Finance Committee. We also produce quarterly reports to the Audit and Finance Committee of any amounts paid or payable to, or received or receivable from, any related party. These reports allow the Company to identify any related party transactions that were not previously approved or ratified. In that event, the transaction will be promptly submitted to the Audit and Finance Committee for consideration of all the relevant facts and circumstances, including those considered when a transaction is submitted for pre-approval. Under the Company’s policy, certain related party transactions as defined under the policy, such as certain transactions not requiring disclosure under the rules of the SEC, will be deemed to be pre-approved by the Audit and Finance Committee and will not be subject to these procedures.
OTHER MATTERS
As of the date of this Proxy Statement, there are no other matters which our management intends to present or has reason to believe others will present at the Annual Meeting. If other matters properly come before the Annual Meeting, the persons named as proxy in the accompanying form of proxy will vote the shares they represent as recommended by the Board (to the extent permitted by Rule 14a-4(c) of the Exchange Act).
ADDITIONAL INFORMATION
Householding
The SEC has adopted rules that permit companies and intermediaries, including brokers, banks and other nominee record holders, to satisfy the delivery requirements for proxy statements and annual reports with respect to two or more Stockholders sharing the same address by delivering a single Notice or set of proxy materials addressed to those Stockholders. This process, which is commonly referred to as “householding,” is designed to reduce duplicative mailings and save significant printing and processing costs as well as natural resources.
The Company will deliver promptly to any Stockholder upon written or oral request, a separate copy of this Proxy Statement and annual report to a Stockholder at a shared address to which a single copy of the documents was delivered. A Stockholder who wishes to receive a separate copy of this Proxy Statement and annual report, now or in the future, may obtain one, without charge, by addressing a written request to ANI Pharmaceuticals, Inc., Attn: Investor Relations, 210 Main Street West, Baudette, Minnesota 56623 or calling 1-866-540-7095. Stockholders can also obtain copies of this Proxy Statement and annual report on the Company’s website or on the SEC’s website. Beneficial owners sharing an address who are receiving multiple copies of proxy materials and annual reports and who wish to receive a single copy of such materials in the future should contact their broker, bank or other nominee to request that only a single copy of each document be mailed to all Stockholders at the shared address in the future.
Annual Report
Stockholders can access electronic copies of the Company’s Annual Report for the year ended December 31, 2024, together with the other proxy materials at www.proxyvote.com. A copy of the Company’s Annual Report, including the financial statements included therein, is also available without charge by visiting the Company’s website, www.anipharmaceuticals.com, by accessing the SEC’s EDGAR filing database at www.sec.gov, or upon written request to ANI Pharmaceuticals, Inc., Attn: Investor Relations, 210 Main Street West, Baudette, Minnesota 56623.
Stockholder Proposals for Inclusion in Our 2026 Annual Meeting Materials
Stockholder proposals submitted to us pursuant to SEC Rule 14a-8 under the Exchange Act for inclusion in our proxy materials for the 2026 Annual Meeting must be received by the Company on or before December 10, 2025, unless the date of the annual meeting in 2026 is changed by more than 30 calendar days from May 22, 2026, and must satisfy the requirements of the proxy rules promulgated by the SEC.
Any other Stockholder proposals to be presented at the Company’s next annual meeting of Stockholders must be given in writing to the Company’s Secretary and received at the Company’s principal executive offices not later than February 20, 2026, nor earlier than January 22, 2026; provided, however, that in the event that the annual meeting is not held within 30 calendar days before or after May 22, 2026, to be timely, notice by the Stockholder must be received not later than the close of business on the tenth calendar day following the date on which the first public announcement of the date of the annual meeting was made.
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For a proposal to be presented at the annual meeting, the proposal must contain specific information required by the Company’s bylaws, a copy of which may be obtained by accessing the SEC’s EDGAR filing database at www.sec.gov, the Company’s website at www.anipharmaceuticals.com, or by writing to the Company’s Secretary. If a proposal is not timely and properly made in accordance with the procedures set forth in the Company’s bylaws, it will be defective and may not be brought before the meeting. If the proposal nonetheless is brought before the annual meeting and the Chair of the annual meeting does not exercise the power and duty to declare the proposal defective, the persons named in the proxy may use their discretionary voting with respect to the proposal.
Stockholder proposals must have been received by us pursuant to SEC Rule 14a-8 under the Exchange Act, for inclusion in our proxy materials for the 2025 Annual Meeting on or before December 6, 2024. Any other Stockholder proposals to be presented at our 2025 Annual Meeting must have been received by us not later than February 20, 2025, nor earlier than January 21, 2025.
Director Nominations
In accordance with procedures set forth in the Company’s bylaws, Stockholders may propose nominees for election to the Company’s Board only after providing timely written notice to the Company’s Secretary and in accordance with the other procedures and requirements contained in the Company’s bylaws. To be timely, a Stockholder’s notice with respect to our 2026 Annual Meeting be delivered to or mailed and received at the Company’s principal executive offices on or before February 20, 2026, but not earlier than January 22, 2026; provided, however, that in the event that the 2026 Annual Meeting is not held within 30 days before or after May 22, 2026, to be timely, notice by the Stockholder must be received not later than the close of business on the tenth day following the date on which the first public announcement of the date of the annual meeting was made. In the case of a special meeting of Stockholders called for the purpose of electing directors, to be timely a Stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Company not later than the close of business on the 10th day following the date on which the first public announcement of the date of the special meeting was made. Stockholders who intend to solicit proxies in support of director nominees other than the Board’s nominees under SEC Rule 14a-19 must comply with the applicable provisions of our bylaws, as well as complying with the additional requirements of SEC Rule 14a-19, including SEC Rule 14a-19(b).
The notice must set forth, among other things set forth in our bylaws:
•The nominee’s name, age, business address and residence address;
•The nominee’s principal occupation or employment;
•The class and number of shares of the Company’s capital stock which are beneficially owned by the nominee, the name of each nominee holder of shares of all stock of the Company owned beneficially but not of record by such stockholder or any associated person, the number of such shares of stock of the Company held by each such nominee holder, and any pledge with respect to any of such stock; and
•Any other information concerning the nominee required under the rules of the SEC in a proxy statement soliciting proxies for the election of directors.
Submissions must be made by mail, courier or personal delivery. E-mailed submissions will not be considered. The Nominating and Corporate Governance Committee will consider only those Stockholder recommendations whose submissions comply with these procedural requirements. The Nominating and Corporate Governance Committee will evaluate candidates recommended by Stockholders in the same manner as those recommended by others.
To be timely, a Stockholder’s notice with respect to our 2025 Annual Meeting must have been delivered to or mailed and received at the Company’s principal executive offices on or before February 20, 2025, but not earlier than January 21, 2025.
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By Order of the Board of Directors, | |||||
| |||||
| Meredith W. Cook | |||||
| Senior Vice President, General Counsel and Corporate Secretary | |||||
_____, 2025 | |||||
Princeton, New Jersey | |||||
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Appendix A
Certificate of Amendment
of the
Restated Certificate of Incorporation
of ANI Pharmaceuticals, Inc.
ANI Pharmaceuticals, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that:
FIRST: The name of the Corporation is ANI Pharmaceuticals, Inc.
SECOND: Article IV of the Restated Certificate of Incorporation of the Corporation is amended as follows:
Article IV is amended by replacing the first sentence of the first paragraph of Article IV with:
“The aggregate number of shares of stock which the Corporation shall have authority to issue is Sixty Eight Million Four Hundred and Forty Seven Thousand Nine Hundred and Forty Eight (68,447,948) shares, consisting of Sixty Six Million (66,000,000) shares of common stock, $0.0001 par value (the “Common Stock”), Seven Hundred and Eighty One Thousand Two Hundred and Eighty One (781,281) shares of class C special stock, $0.0001 par value (the “Class C Special Stock”), and One Million Six Hundred and Sixty Six Thousand Six Hundred and Sixty Seven (1,666,667) shares of preferred stock, $0.0001 par value (the “Preferred Stock”).”
THIRD: The foregoing amendment has been duly adopted by the board of directors of the Corporation and the holders of a majority of the issued and outstanding shares of capital stock of the Corporation entitled to vote thereon at the annual meeting of stockholders of the Corporation held on May 22, 2025, pursuant to Sections 141 and 242 of the DGCL.
FOURTH: This Certificate of Amendment shall be effective on , 2025, at 5:00 P.M. Eastern Time.
IN WITNESS WHEREOF, ANI Pharmaceuticals, Inc. has caused this Certificate of Amendment to the Restated Certificate of Incorporation to be signed by its duly authorized officer on this day of , 2025.
____________________________________
Nikhil Lalwani
President and Chief Executive Officer
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Appendix B
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ANI PHARMACEUTICALS, INC. AMENDED AND RESTATED 2022 STOCK INCENTIVE PLAN
(Amended on May 22, 2025)
1.Purpose of Plan.
The purpose of the ANI Pharmaceuticals, Inc. Amended and Restated 2022 Stock Incentive Plan (this “Plan”) is to advance the interests of ANI Pharmaceuticals, Inc. (the “Company”) and its stockholders by enabling the Company and its Subsidiaries to attract and retain qualified persons to perform services for the Company and its Subsidiaries by providing an incentive to such individuals through opportunities for equity participation in the Company, and by rewarding such individuals who contribute to the achievement of the Company’s economic objectives.
The Plan was originally effective as of April 27, 2022, upon approval by the stockholders of the Company. The Plan was first amended and restated following its original effective date as of March 28, 2024. This second amendment and restatement of the Plan is effective as of the Restatement Effective Date.
2. Definitions.
The following terms will have the meanings set forth below, unless the context clearly otherwise requires:
2.1 “Board” means the Board of Directors of the Company.
2.2 “Broker Exercise Notice” means a written notice pursuant to which a Participant, upon exercise of an Option, irrevocably instructs a broker or dealer to sell a sufficient number of shares or loan a sufficient amount of money to pay all or a portion of the exercise price of the Option and/or any related withholding tax obligations and remit such sums to the Company and directs the Company to deliver stock certificates to be issued upon such exercise directly to such broker or dealer or their nominee.
2.3 “Cause” means “cause” as defined in any employment or other agreement or policy applicable to the Participant, or if no such agreement or policy exists, will mean (i) any crime involving dishonesty, fraud, misrepresentation, embezzlement or deliberate injury or attempted injury, in each case related to the Company or any Subsidiary, (ii) any unlawful or criminal activity of a serious nature, (iii) any intentional and deliberate breach of a duty or duties that, individually or in the aggregate, are material in relation to the Participant’s overall duties, or (iv) any material breach of any employment, service, confidentiality, non-compete or non-solicitation agreement entered into with the Company or any Subsidiary.
2.4 “Change in Control” means an event described in Section 14.1 of the Plan; provided, however, if under an Incentive Award that is subject to Section 409A of the Code, payment or settlement is triggered by a Change in Control, such that such payment or settlement would subject the Incentive Award to taxation under Section 409A of the Code, the term Change in Control will mean a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, as such term is defined in Section 409A of the Code.
2.5 “Code” means the Internal Revenue Code of 1986, as amended (including, when the context requires, all regulations, interpretations and rulings issued thereunder).
2.6 “Committee” means the group of individuals administering the Plan, as provided in Section 3 of the Plan.
2.7 “Common Stock” means the common stock of the Company, par value $0.0001 per share, or the number and kind of shares of stock or other securities into which such Common Stock may be changed in accordance with Section 4.3 of the Plan.
2.8 “Disability” means the disability of the Participant such as would entitle the Participant to receive disability income benefits pursuant to the long-term disability plan of the Company or Subsidiary then covering the Participant or, if no such plan exists or is applicable to the Participant, the permanent and total disability of the Participant within the meaning of Section 22(e)(3) of the Code; provided, however, if distribution of an Incentive Award subject to Section 409A of the Code is triggered by an Eligible Recipient’s Disability, such term will mean that the Eligible Recipient is disabled as defined by Section 409A of the Code and the regulations and rulings issued thereunder.
2.9 “Eligible Recipients” means (a) for the purposes of granting Incentive Stock Options, all employees (including, without limitation, officers and directors who are also employees) of the Company or any
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Subsidiary and (b) for the purposes of granting Non-Statutory Stock Options and other Incentive Awards, all employees (including, without limitation, officers and directors who are also employees) of the Company or any Subsidiary and any non-employee directors, consultants, advisors and independent contractors of the Company or any Subsidiary. Notwithstanding the foregoing, an Eligible Person shall also include any individual who is expected to become an employee of the Company or any Subsidiary or a non-employee director, consultant, advisor or independent contractor of the Company or any Subsidiary within a reasonable period of time after the grant of an Incentive Award (other than an Incentive Stock Option); provided that any Award granted to any such individual shall be automatically terminated and cancelled without consideration if the individual does not begin performing services for the Company or any Subsidiary within twelve (12) months after the date such Incentive Award is granted.
2.10 “Exchange Act” means the Securities Exchange Act of 1934, as amended.
2.11 “Fair Market Value” means, with respect to the Common Stock, as of any date: (i) the closing sale price of the Common Stock at the end of the regular trading session, as reported by The NASDAQ Stock Market, The New York Stock Exchange, The American Stock Exchange or any national exchange on which the Common Stock is then listed or quoted (or, if no shares were traded on such date, as of the next preceding date on which there was such a trade); or (ii) if the Common Stock is not so listed, admitted to unlisted trading privileges, or reported on any national exchange or, the closing sale price as of such date at the end of the regular trading session, as reported by OTC Bulletin Board or the Pink Sheets LLC, or other comparable service (or, if no shares were traded or quoted on such date, as of the next preceding date on which there was such a trade or quote); or (iii) if the Common Stock is not so listed or reported, such price as the Committee determines in good faith, and consistent with the definition of “fair market value” under Section 409A of the Code.
2.12 “Incentive Award” means an Option, Stock Appreciation Right, Restricted Stock Award, Stock Unit Award, Performance Award or Stock Bonus granted to an Eligible Recipient pursuant to the Plan.
2.13 "Incentive Stock Option” means a right to purchase shares of Common Stock granted to an Eligible Recipient pursuant to Section 6 of the Plan that qualifies as an “incentive stock option” within the meaning of Section 422 of the Code.
2.14 “Non-Statutory Stock Option” means a right to purchase shares of Common Stock granted to an Eligible Recipient pursuant to Section 6 of the Plan that does not qualify as an Incentive Stock Option.
2.15 “Option” means an Incentive Stock Option or a Non-Statutory Stock Option.
2.16 “Participant” means an Eligible Recipient who receives one or more Incentive Awards under the Plan.
2.17 “Performance Award” means a right granted to an Eligible Recipient pursuant to Section 10 of the Plan to receive an amount of cash, a number of shares of Common Stock, or a combination of both, contingent upon achievement of specified performance objectives during a specified period. A Performance Award is also commonly referred to as a “performance unit.”
2.18 “Previously Acquired Shares” means shares of Common Stock that are already owned by the Participant or, with respect to any Incentive Award, that are to be issued to the Participant upon the grant, exercise or vesting of such Incentive Award.
2.19 “Prior Plan Restatement” means any prior amendment and restatement of ANI Pharmaceuticals, Inc. 2008 Stock Incentive Plan.
2.20 “Restatement Effective Date” means May 22, 2025.
2.21 “Restricted Stock Award” means an award of shares of Common Stock granted to an Eligible Recipient pursuant to Section 8 of the Plan that are subject to restrictions on transferability and/or a risk of forfeiture.
2.22 “Retirement” means termination of employment or service at age 55 or older and completion of at least ten years of continuous service.
2.23 “Securities Act” means the Securities Act of 1933, as amended.
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2.24 “Stock Appreciation Right” means a right granted to an Eligible Recipient pursuant to Section 7 of the Plan to receive a payment from the Company, in the form of shares of Common Stock, cash or a combination of both, equal to the difference between the Fair Market Value of one or more shares of Common Stock and a specified exercise price of such shares.
2.25 “Stock Bonus” means an award of shares of Common Stock granted to an Eligible Recipient pursuant to Section 11 of the Plan.
2.26 “Stock Unit Award” means a right granted to an Eligible Recipient pursuant to Section 9 of the Plan to receive the Fair Market Value of one or more shares of Common Stock, payable in cash, shares of Common Stock, or a combination of both, the payment, issuance, retention and/or vesting of which is subject to the satisfaction of specified conditions, which may include achievement of specified performance objectives. A Stock Unit Award when payable in shares of Common Stock is also commonly referred to as a “restricted stock unit.”
2.27 “Subsidiary” means any entity that is directly or indirectly controlled by the Company or any entity in which the Company has a significant equity interest, as determined by the Committee, provided the Company has a “controlling interest” in the Subsidiary as defined in Treas. Reg. Sec. 1.409A-1(b)(5)(iii)(E)(1).
2.28 “Tax Date” means the date any withholding tax obligation arises under the Code for a Participant with respect to an Incentive Award.
3. Plan Administration.
3.1 The Committee. The Plan will be administered by the Board or by a committee of the Board. So long as the Company has a class of its equity securities registered under Section 12 of the Exchange Act, any committee administering the Plan will consist solely of two or more members of the Board who are “non-employee directors” within the meaning of Rule 16b-3 under the Exchange Act and who are “independent” as required by the listing standards of The NASDAQ Stock Market (or other applicable exchange or market on which the Company’s Common Stock may be traded or quoted). Such a committee, if established, will act by majority approval of the members (but may also take action by the written consent of all of the members of such committee), and a majority of the members of such a committee will constitute a quorum. As used in the Plan, “Committee” will refer to the Board or to such a committee, if established. To the extent consistent with applicable corporate law of the Company’s jurisdiction of incorporation, the Committee may delegate to any officers of the Company the duties, power and authority of the Committee under the Plan pursuant to such conditions or limitations as the Committee may establish; provided, however, that only the Committee may exercise such duties, power and authority with respect to Eligible Recipients who are subject to Section 16 of the Exchange Act. The Committee may exercise its duties, power and authority under the Plan in its sole and absolute discretion without the consent of any Participant or other party, unless the Plan specifically provides otherwise. Each determination, interpretation or other action made or taken by the Committee pursuant to the provisions of the Plan will be final, conclusive and binding for all purposes and on all persons, and no member of the Committee will be liable for any action or determination made in good faith with respect to the Plan or any Incentive Award granted under the Plan.
3.2 Authority of the Committee.
(a) In accordance with and subject to the provisions of the Plan, the Committee will have the authority to determine all provisions of Incentive Awards as the Committee may deem necessary or desirable and as consistent with the terms of the Plan, including, without limitation, the following: (i) the Eligible Recipients to be selected as Participants; (ii) the nature and extent of the Incentive Awards to be made to each Participant (including the number of shares of Common Stock to be subject to each Incentive Award, any exercise price, the manner in which Incentive Awards will vest or become exercisable and whether Incentive Awards will be granted in tandem with other Incentive Awards) and the form of written agreement, if any, evidencing such Incentive Award; (iii) the time or times when Incentive Awards will be granted; (iv) the duration of each Incentive Award; and (v) the restrictions and other conditions to which the payment or vesting of Incentive Awards may be subject. In addition, the Committee will have the authority under the Plan in its sole discretion to pay the economic value of any Incentive Award in the form of cash, Common Stock or any combination of both.
(b) Subject to Section 3.2(d) of the Plan, the Committee will have the authority under the Plan to amend or modify the terms of any outstanding Incentive Award in any manner, including, without limitation, the authority to modify the number of shares or other terms and conditions of an Incentive Award, extend the term of an Incentive Award, accelerate the exercisability or vesting or otherwise terminate any restrictions relating to an Incentive Award, accept the surrender of any outstanding Incentive Award or, to the extent not previously exercised or vested, authorize the grant of new Incentive Awards in substitution for surrendered Incentive Awards; provided, however that (i) the amended or modified terms must otherwise be permitted by the Plan as then in effect, and may
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not subject any Participant to taxation under Section 409A of the Code and (ii) any Participant adversely affected by such amended or modified terms must have consented to such amendment or modification.
(c) In the event of (i) any reorganization, merger, consolidation, recapitalization, liquidation, reclassification, stock dividend, stock split, combination of shares, rights offering, extraordinary dividend or divestiture (including a spin-off) or any other similar change in corporate structure or shares; (ii) any purchase, acquisition, sale, disposition or write-down of a significant amount of assets or a significant business; (iii) any change in accounting principles or practices, tax laws or other such laws or provisions affecting reported results; (iv) any uninsured catastrophic losses or extraordinary non-recurring items as described in Financial Accounting Standards Board Accounting Standards Codification 225, Income Statement or in management’s discussion and analysis of financial performance appearing in the Company’s annual report to stockholders for the applicable year; or (v) any other similar change, in each case with respect to the Company or any other entity whose performance is relevant to the grant or vesting of an Incentive Award, the Committee (or, if the Company is not the surviving corporation in any such transaction, the board of directors of the surviving corporation) may, without the consent of any affected Participant, amend or modify the vesting criteria (including any performance objectives) of any outstanding Incentive Award that is based in whole or in part on the financial performance of the Company (or any Subsidiary or division or other subunit thereof) or such other entity so as equitably to reflect such event, with the desired result that the criteria for evaluating such financial performance of the Company or such other entity will be substantially the same (in the sole discretion of the Committee or the board of directors of the surviving corporation) following such event as prior to such event; provided, however, that the amended or modified terms are permitted by the Plan as then in effect, including the limitations in Section 3.2(a) and 3.2(b).
(d) Notwithstanding any other provision of this Plan other than Section 4.3, the Committee may not, without prior approval of the Company’s stockholders, seek to effect any re-pricing of any previously granted, “underwater” Option or Stock Appreciation Right by: (i) amending or modifying the terms of the Option or Stock Appreciation Right to lower the exercise price; (ii) canceling the underwater Option or Stock Appreciation Right in exchange for (A) cash; (B) replacement Options or Stock Appreciation Rights having a lower exercise price; or (C) other Incentive Awards; or (iii) repurchasing the underwater Options or Stock Appreciation Rights and granting new Incentive Awards under this Plan. For purposes of this Section 3.2(d), Options and Stock Appreciation Rights will be deemed to be “underwater” at any time when the Fair Market Value of the Common Stock is less than the exercise price of the Option or Stock Appreciation Right.
(e) In addition to the authority of the Committee under Section 3.2(b) of the Plan and notwithstanding any other provision of the Plan, the Committee may, in its sole discretion, amend the terms of the Plan or Incentive Awards with respect to Participants resident outside of the United States or employed by a non-U.S. Subsidiary in order to comply with local legal requirements, to otherwise protect the Company’s or Subsidiary’s interests, or to meet objectives of the Plan, and may, where appropriate, establish one or more sub-plans (including the adoption of any required rules and regulations) for the purposes of qualifying for preferred tax treatment under foreign tax laws. The Committee shall have no authority, however, to take action pursuant to this Section 3.2(e) of the Plan:
(i) to reserve shares or grant Incentive Awards in excess of the limitations provided in Section 4.1 of the Plan; (ii) to effect any re-pricing in violation of Section 3.2(d) of the Plan; (iii) to grant Options or Stock Appreciation Rights having an exercise price in violation of Section 6.2 or 7.2 of the Plan, as the case may be; or (iv) for which stockholder approval would then be required pursuant to Section 422 of the Code or the rules of The NASDAQ Stock Market (or other applicable exchange or market on which the Company’s Common Stock may be traded or quoted). In addition, the Committee shall have no authority to grant any Incentive Award on or after April 10, 2020 that vests or becomes exercisable earlier than twelve months after such Incentive Award was granted; provided, however, that this minimum vesting condition shall not apply to (x) any Incentive Award that is outstanding on April 9, 2020, or (y) Incentive Awards granted on or after April 10, 2020 with respect to which the aggregate number of shares issuable pursuant to such Incentive Awards do not exceed 5% of the aggregate number of shares of Common Stock reserved for issuance under the Plan as of April 10, 2020 less the sum of the number of shares of Common Stock issued under the Plan prior to April 10, 2020 and the number of shares of Common Stock underlying Incentive Awards that were outstanding as of April 10, 2020 (collectively, “Exempted Awards”).
4. Shares Available for Issuance.
4.1 Maximum Number of Shares Available; Certain Restrictions on Awards.
(a) Subject to adjustment as provided in Section 4.3 of the Plan, the maximum number of shares of Common Stock that will be available for issuance under the Plan will be the sum of: (x) 6,510,000 shares, plus up to an additional 750,000 shares subject to approval of the Company’s stockholders on the Restatement Effective Date,
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which if approved in full will result in a new aggregate share reserve of 7,260,000 shares; (y) the number of shares of Common Stock subject to Incentive Awards granted under any Prior Plan Restatement or under the Plan that remain outstanding as of the Restatement Effective Date but only to the extent that such outstanding Incentive Awards are forfeited, expire or otherwise terminate without the issuance of such shares of Common Stock; and (z) the number of shares issued or Incentive Awards granted under the Plan in connection with the settlement, assumption or substitution of outstanding awards as a condition of the Company and/or any Subsidiary(ies) acquiring, merging or consolidating with another entity.
(b) The shares available for issuance under the Plan may, at the election of the Committee, be either treasury shares or shares authorized but unissued, and, if treasury shares are used, all references in the Plan to the issuance of shares will, for corporate law purposes, be deemed to mean the transfer of shares from treasury.
(c) Subject to adjustment as described below in Section 4.2 and 4.3 below, the aggregate number of shares of Common Stock that may be issued or transferred under the Plan pursuant to Incentive Stock Options shall not exceed 7,260,000 shares of Company Stock.
(d) Subject to adjustment as described below in Section 4.2 and 4.3 below, the maximum aggregate grant date value of shares of Common Stock subject to Incentive Awards granted to any director during any calendar year, taken together with any cash fees earned by such director for services rendered during the calendar year, shall not exceed $750,000 in total value. For purposes of this limit, the value of such Incentive Awards shall be calculated based on the grant date fair value of such Incentive Awards for financial reporting purposes. The limitation described in this paragraph shall be increased to $1,000,000 with respect to Incentive Awards made to a director during the calendar year in which the director’s initial term commences.
4.2 Accounting for Incentive Awards. Shares of Common Stock that are issued under the Plan or that are potentially issuable pursuant to outstanding Incentive Awards will be applied to reduce the maximum number of shares of Common Stock remaining available for issuance under the Plan. All shares so subtracted from the amount available under the Plan with respect to an Incentive Award (other than Incentive Awards granted pursuant to Section 4.1(c)) that lapses, expires, is forfeited (including issued shares forfeited under a Restricted Stock Award) or for any reason is terminated unexercised or unvested or is settled or paid in cash or any form other than shares of Common Stock will automatically again become available for issuance under the Plan; provided, however, that (i) any shares which would have been issued upon any exercise of an Option but for the fact that the exercise price was paid by a “net exercise” pursuant to Section 6.4(b) of the Plan or the tender or attestation as to ownership of Previously Acquired Shares pursuant to Section 6.4(a) of the Plan will not again become available for issuance under the Plan; (ii) the full number of shares of Common Stock subject to a Stock Appreciation Right granted that are settled by the issuance of shares of Common Stock will be counted against the shares authorized for issuance under this Plan, regardless of the number of shares actually issued upon settlement of such Stock Appreciation Right, and will not again become available for issuance under the Plan; and (iii) shares withheld by the Company to pay the exercise price of any Incentive Award or satisfy any tax withholding obligation will not again become available for issuance under the Plan. Any shares of Common Stock repurchased by the Company on the open market using the proceeds from the exercise of an Incentive Award will not increase the number of shares available for future grant of Incentive Awards. Subject to the foregoing, any shares of Common Stock related to Incentive Awards under this Plan or under any Prior Plan Restatement that terminate by expiration, forfeiture, cancellation or otherwise without the issuance of shares of Common Stock, or are settled in cash in lieu of shares, or are exchanged with the Committee’s permission, prior to the issuance of shares, for Incentive Awards not involving shares, will be available again for grant under this Plan.
4.3 Adjustments to Shares and Incentive Awards. In the event that the Committee determines that any reorganization, merger, consolidation, recapitalization, liquidation, reclassification, stock dividend, stock split, combination of shares, rights offering, divestiture or extraordinary dividend (including a spin-off) or any other similar corporate transaction or change in the corporate structure or shares of the Company affects the Common Stock, such that an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be provided or made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (a) the number and kind of securities or other property with respect to which Incentive Awards may be granted, (b) the number and kind of securities or property subject to outstanding Incentive Awards, and (c) the exercise price of outstanding Options and Stock Appreciation Rights or, if it deems it appropriate, the Committee may make provision for a cash payment to the holders of outstanding Incentive Awards. Notwithstanding the foregoing, no such adjustment shall be authorized with respect to any Options or Stock Appreciation Rights to the extent that such adjustment would cause the Option or Stock Appreciation Rights (determined as if such Option or Stock Appreciation Right was an Incentive Stock Option) to violate Section 424(a) of the Code or otherwise subject any Participant to taxation under Section 409A of the Code; and provided further that the number of Shares subject to any Award denominated in Shares shall always be a whole number.
5. Participation.
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Participants in the Plan will be those Eligible Recipients who, in the judgment of the Committee, have contributed, are contributing or are expected to contribute to the achievement of economic objectives of the Company or its Subsidiaries. Eligible Recipients may be granted from time to time one or more Incentive Awards, singly or in combination or in tandem with other Incentive Awards, as may be determined by the Committee in its sole discretion. Incentive Awards will be deemed to be granted as of the date specified in the grant resolution of the Committeea, which date will be the date of any related agreement with the Participant.
6. Options.
6.1 Grant. An Eligible Recipient may be granted one or more Options under the Plan, and such Options will be subject to such terms and conditions, consistent with the other provisions of the Plan, as may be determined by the Committee in its sole discretion. The Committee may designate whether an Option is to be considered an Incentive Stock Option or a Non-Statutory Stock Option. To the extent that any Incentive Stock Option (or portion thereof) granted under the Plan ceases for any reason to qualify as an “incentive stock option” for purposes of Section 422 of the Code, such Incentive Stock Option (or portion thereof) will continue to be outstanding for purposes of the Plan but will thereafter be deemed to be a Non-Statutory Stock Option. Options may be granted to an Eligible Recipient for services provided to a Subsidiary only if, with respect to such Eligible Recipient, the underlying shares of Common Stock constitute “service recipient stock” within the meaning of Treas. Reg. Section 1.409A-1(b)(5)(iii).
6.2 Exercise Price. The per share price to be paid by a Participant upon exercise of an Option will be determined by the Committee in its discretion at the time of the Option grant, provided that such price will not be less than 100% of the Fair Market Value of one share of Common Stock on the date of grant (or 110% of the Fair Market Value of one share of Common Stock on the date of grant of an Incentive Stock Option if, at the time the Incentive Stock Option is granted, the Participant owns, directly or indirectly, more than 10% of the total combined voting power of all classes of stock of the Company or any parent or subsidiary corporation of the Company). Notwithstanding the foregoing, to the extent that Options are granted under the Plan as a result of the Company’s assumption or substitution of options issued by any acquired, merged or consolidated entity, the exercise price for such Options shall be the price determined by the Committee pursuant to the conversion terms applicable to the transaction.
6.3 Exercisability and Duration. An Option will become exercisable at such times and in such installments and upon such terms and conditions as may be determined by the Committee in its sole discretion at the time of grant (including without limitation (i) the achievement of one or more specified performance objectives; and/or that (ii) the Participant remain in the continuous employ or service of the Company or a Subsidiary for a certain period); provided, however, that no Option may be exercisable after ten (10) years from its date of grant (five years from its date of grant in the case of an Incentive Stock Option if, at the time the Incentive Stock Option is granted, the Participant owns, directly or indirectly, more than 10% of the total combined voting power of all classes of stock of the Company or any parent or subsidiary corporation of the Company).
6.4 Payment of Exercise Price.
(a) The total purchase price of the shares to be purchased upon exercise of an Option will be paid entirely in cash (including check, bank draft or money order); provided, however, that the Committee, in its sole discretion and upon terms and conditions established by the Committee, may allow such payments to be made, in whole or in part, by (i) tender of a Broker Exercise Notice; (ii) by tender, or attestation as to ownership, of Previously Acquired Shares that are acceptable to the Committee; (iii) by a “net exercise” of the Option (as further described in paragraph (b), below); or (iv) by a combination of such methods.
(b) In the case of a “net exercise” of an Option, the Company will not require a payment of the exercise price of the Option from the Participant but will reduce the number of shares of Common Stock issued upon the exercise by the largest number of whole shares that has a Fair Market Value on the exercise date that does not exceed the aggregate exercise price for the shares exercised under this method. Shares of Common Stock will no longer be outstanding under an Option (and will therefore not thereafter be exercisable) following the exercise of such Option to the extent of (i) shares used to pay the exercise price of an Option under the “net exercise,” (ii) shares actually delivered to the Participant as a result of such exercise and (iii) any shares withheld for purposes of tax withholding pursuant to Section 13.1 of the Plan.
(c) Previously Acquired Shares tendered or covered by an attestation as payment of an Option exercise price will be valued at their Fair Market Value on the exercise date.
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6.5 Manner of Exercise. An Option may be exercised by a Participant in whole or in part from time to time, subject to the conditions contained in the Plan and in the agreement evidencing such Option, by delivery in person, by facsimile or electronic transmission or through the mail of written notice of exercise to the Company at its principal executive office in Baudette, Minnesota and by paying in full the total exercise price for the shares of Common Stock to be purchased in accordance with Section 6.4 of the Plan.
7. Stock Appreciation Rights.
7.1 Grant. An Eligible Recipient may be granted one or more Stock Appreciation Rights under the Plan, and such Stock Appreciation Rights will be subject to such terms and conditions, consistent with the other provisions of the Plan, as may be determined by the Committee in its sole discretion. The Committee will have the sole discretion to determine the form in which payment of the economic value of Stock Appreciation Rights will be made to a Participant (i.e., cash, shares of Common Stock or any combination thereof) or to consent to or disapprove the election by a Participant of the form of such payment. Stock Appreciation Rights may be granted to an Eligible Recipient for services provided to a Subsidiary only if, with respect to such Eligible Recipient, the underlying shares of Common Stock constitute “service recipient stock” within the meaning of Treas. Reg. Section 1.409A-1(b)(5)(iii).
7.2 Exercise Price. The exercise price of a Stock Appreciation Right will be determined by the Committee, in its discretion, at the date of grant but may not be less than 100% of the Fair Market Value of one share of Common Stock on the date of grant. Notwithstanding the foregoing, to the extent that Stock Appreciation Rights are granted under the Plan as a result of the Company’s assumption or substitution of stock appreciation rights issued by any acquired, merged or consolidated entity, the exercise price for such Stock Appreciation Rights shall be the price determined by the Committee pursuant to the conversion terms applicable to the transaction.
7.3 Exercisability and Duration. A Stock Appreciation Right will become exercisable at such time and in such installments as may be determined by the Committee in its sole discretion at the time of grant; provided, however, that no Stock Appreciation Right may be exercisable after ten (10) years from its date of grant. A Stock Appreciation Right will be exercised by giving notice in the same manner as for Options, as set forth in Section 6.5 of the Plan.
7.4 Grants in Tandem with Options. Stock Appreciation Rights may be granted alone or in addition to other Incentive Awards, or in tandem with an Option, at the time of grant of the Option. A Stock Appreciation Right granted in tandem with an Option shall cover the same number of shares of Common Stock as covered by the Option (or such lesser number as the Committee may determine), shall be exercisable at such time or times and only to the extent that the related Option is exercisable, have the same term as the Option and shall have an exercise price equal to the exercise price for the Option. Upon the exercise of a Stock Appreciation Right granted in tandem with an Option, the Option shall be canceled automatically to the extent of the number of shares covered by such exercise; conversely, upon exercise of an Option having a related Stock Appreciation Right, the Stock Appreciation Right shall be canceled automatically to the extent of the number of shares covered by the Option exercise.
8. Restricted Stock Awards.
8.1 Grant. An Eligible Recipient may be granted one or more Restricted Stock Awards under the Plan, and such Restricted Stock Awards will be subject to such terms and conditions, consistent with the other provisions of the Plan, as may be determined by the Committee in its sole discretion. The Committee may impose such restrictions or conditions, not inconsistent with the provisions of the Plan, to the vesting of such Restricted Stock Awards as it deems appropriate, including, without limitation, (i) the achievement of one or more specified performance objectives; and/or that (ii) the Participant remain in the continuous employ or service of the Company or a Subsidiary for a certain period.
8.2 Rights as a Stockholder; Transferability. Except as provided in Sections 8.1, 8.3, 8.4 and 15.3 of the Plan, a Participant will have all voting, dividend, liquidation and other rights with respect to shares of Common Stock issued to the Participant as a Restricted Stock Award under this Section 8 upon the Participant becoming the holder of record of such shares as if such Participant were a holder of record of shares of unrestricted Common Stock.
8.3 Dividends and Distributions. Unless the Committee determines otherwise in its sole discretion (either in the agreement evidencing the Restricted Stock Award at the time of grant or at any time after the grant of
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the Restricted Stock Award), any dividends or distributions paid with respect to shares of Common Stock subject to the unvested portion of a Restricted Stock Award will be subject to the same restrictions as the shares to which such dividends or distributions relate. The Committee will determine in its sole discretion whether any interest will be paid on such dividends or distributions.
8.4 Enforcement of Restrictions. To enforce the restrictions referred to in this Section 8, the Committee may place a legend on the stock certificates referring to such restrictions and may require the Participant, until the restrictions have lapsed, to keep the stock certificates, together with duly endorsed stock powers, in the custody of the Company or its transfer agent, or to maintain evidence of stock ownership, together with duly endorsed stock powers, in a certificate less book-entry stock account with the Company’s transfer agent.
9. Stock Unit Awards.
An Eligible Recipient may be granted one or more Stock Unit Awards under the Plan, and such Stock Unit Awards will be subject to such terms and conditions, consistent with the other provisions of the Plan, as may be determined by the Committee in its sole discretion. The Committee may impose such restrictions or conditions, not inconsistent with the provisions of the Plan, to the payment, issuance, retention and/or vesting of such Stock Unit Awards as it deems appropriate, including, without limitation, (i) the achievement of one or more specified performance objectives; and/or that (ii) the Participant remain in the continuous employ or service of the Company or a Subsidiary for a certain period.
10. Performance Awards.
An Eligible Recipient may be granted one or more Performance Awards under the Plan, and such Performance Awards will be subject to such terms and conditions, if any, consistent with the other provisions of the Plan, as may be determined by the Committee in its sole discretion, including, but not limited to, the achievement of one or more specified performance objectives.
11. Stock Bonuses.
An Eligible Recipient may be granted one or more Stock Bonuses under the Plan, and such Stock Bonuses will be subject to such terms and conditions, if any, consistent with the other provisions of the Plan, as may be determined by the Committee in its sole discretion, including, but not limited to, the achievement of one or more specified performance objectives.
12. Effect of Termination of Employment or Other Service. The following provisions shall apply upon termination of a Participant’s employment or other service with the Company and all Subsidiaries, except to the extent that the Committee provides otherwise in an agreement evidencing an Incentive Award at the time of grant or determines pursuant to Section 12.3 of the Plan.
12.1 Termination Due to Death, Disability or Retirement. In the event a Participant’s employment or other service with the Company and all Subsidiaries is terminated by reason of death, Disability or Retirement:
(a) All outstanding Options and Stock Appreciation Rights then held by the Participant will, to the extent exercisable as of such termination, remain exercisable in full for a period of one year after such termination (but in no event after the expiration date of any such Option or Stock Appreciation Right). Options and Stock Appreciation Rights not exercisable as of such termination will be forfeited and terminate;
(b) All Restricted Stock Awards then held by the Participant that have not vested as of such termination will be terminated and forfeited; and
(c) All outstanding but unpaid Stock Unit Awards, Performance Awards and Stock Bonuses then held by the Participant will be terminated and forfeited.
12.2 Termination for Reasons Other than Death, Disability or Retirement. Subject to Section 12.4 of the Plan, in the event a Participant’s employment or other service is terminated with the Company and all Subsidiaries for any reason other than death, Disability or Retirement, or a Participant is in the employ or service of a Subsidiary and the Subsidiary ceases to be a Subsidiary of the Company (unless the Participant continues in the employ or service of the Company or another Subsidiary):
(a) All outstanding Options and Stock Appreciation Rights then held by the Participant will, to the extent exercisable as of such termination, remain exercisable in full for a period of three months after such termination (but in no event after the expiration date of any such Option or Stock Appreciation Right). Options and Stock Appreciation Rights not exercisable as of such termination will be forfeited and terminate;
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(b) All Restricted Stock Awards then held by the Participant that have not vested as of such termination will be terminated and forfeited; and
(c) All outstanding but unpaid Stock Unit Awards, Performance Awards and Stock Bonuses then held by the Participant will be terminated and forfeited.
12.3 Modification of Rights Upon Termination. Notwithstanding the other provisions of this Section 12, upon a Participant’s termination of employment or other service with the Company and all Subsidiaries, the Committee may, in its sole discretion (which may be exercised at any time on or after the date of grant, including following such termination), except as provided in clause (ii), below, cause Options or Stock Appreciation Rights (or any part thereof) then held by such Participant to terminate, become or continue to become exercisable and/or remain exercisable following such termination of employment or service, and Restricted Stock Awards, Stock Unit Awards, Performance Awards or Stock Bonuses then held by such Participant to terminate, vest or become free of restrictions and conditions to payment, as the case may be, following such termination of employment or service, in each case in the manner determined by the Committee; provided, however, that any such action adversely affecting any outstanding Incentive. Award will not be effective without the consent of the affected Participant (subject to the right of the Committee to take whatever action it deems appropriate under Sections 3.2(c), 4.3 and 14 of the Plan).
12.4 Effects of Actions Constituting Cause. Notwithstanding anything in the Plan to the contrary, in the event that a Participant is determined by the Committee, acting in its sole discretion, to have committed any action which would constitute Cause as defined in Section 2.3 of the Plan, irrespective of whether such action or the Committee’s determination occurs before or after termination of such Participant’s employment with the Company or any Subsidiary, all rights of the Participant under the Plan and any agreements evidencing an Incentive Award then held by the Participant shall terminate and any unvested portion of the Incentive Award be forfeited without notice of any kind.
12.5 Determination of Termination of Employment or Other Service.
(a) The change in a Participant’s status from that of an employee of the Company or any Subsidiary to that of a non-employee consultant, director or advisor of the Company or any Subsidiary will, for purposes of the Plan, be deemed to result in a termination of such Participant’s employment with the Company and its Subsidiaries, unless the Committee otherwise determines in its sole discretion.
(b) The change in a Participant’s status from that of a non-employee consultant, director or advisor of the Company or any Subsidiary to that of an employee of the Company or any Subsidiary will not, for purposes of the Plan, be deemed to result in a termination of such Participant’s service as a non-employee consultant, director or advisor with the Company and its Subsidiaries, and such Participant will thereafter be deemed to be an employee of the Company or its Subsidiaries until such Participant’s employment is terminated, in which event such Participant will be governed by the provisions of this Plan relating to termination of employment or service (subject to paragraph (a), above).
(c) Unless the Committee otherwise determines in its sole discretion, a Participant’s employment or other service will, for purposes of the Plan, be deemed to have terminated on the date recorded on the personnel or other records of the Company or the Subsidiary for which the Participant provides employment or other service, as determined by the Committee in its sole discretion based upon such records.
(d) Notwithstanding the foregoing, if payment of an Incentive Award that is subject to Section 409A of the Code is triggered by a termination of a Participant’s employment or other service, such termination must also constitute a “separation from service” within the meaning of Section 409A of the Code, and any change in employment status that constitutes a “separation from service” under Section 409A of the Code shall be treated as a termination of employment or service, as the case may be.
12.6 Breach of Employment, Consulting, Confidentiality or Non-Compete Agreements. Notwithstanding anything in the Plan or in any Incentive Award granted hereunder to the contrary and in addition to the rights of the Committee under Section 12.4 of the Plan, the Committee in its sole discretion may cancel, rescind, withhold or otherwise limit or restrict any Incentive Award at any time in the event that a Participant materially breaches the terms of any employment, consulting, confidentiality or non-compete agreement entered into with the Company or any Subsidiary (including an employment, consulting, confidentiality or non-compete agreement made in connection with the grant of an Incentive Award), whether such breach occurs before or after termination of such Participant’s employment or other service with the Company or any Subsidiary, to the extent disgorgement or forfeiture of the Incentive Award or any amounts received under the Incentive Award is required under a policy of the Company or any successor, or its or their subsidiaries, adopted to comply with applicable requirements of law (including Section 10D of the Securities Exchange Act of 1934, as amended) or of any applicable stock exchange..
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13. Payment of Withholding Taxes.
13.1 General Rules. The Company is entitled to (a) withhold and deduct from future wages of the Participant (or from other amounts that may be due and owing to the Participant from the Company or a Subsidiary), or make other arrangements for the collection of, all legally required amounts necessary to satisfy any and all federal, foreign, state and local withholding and employment-related tax requirements attributable to an Incentive Award, including, without limitation, the grant, exercise, vesting or settlement of, or payment of dividends with respect to, an Incentive Award or a disqualifying disposition of stock received upon exercise of an Incentive Stock Option; (b) withhold cash paid or payable or shares of Common Stock from the shares issued or otherwise issuable to the Participant in connection with an Incentive Award; or (c) require the Participant to promptly remit the amount of such withholding to the Company before taking any action, including issuing any shares of Common Stock, with respect to an Incentive Award. Shares of Common Stock issued or otherwise issuable to the Participant in connection with an Incentive Award that gives rise to the tax withholding obligation that are withheld for purposes of satisfying the Participant’s withholding or employment-related tax obligation, will be valued at their Fair Market Value on the Tax Date. No withholding will be effected under this Plan which exceeds the minimum statutory withholding requirements.
13.2 Special Rules. The Committee may, in its sole discretion and upon terms and conditions established by the Committee, permit or require a Participant to satisfy, in whole or in part, any withholding or employment-related tax obligation described in Section 13.1 of the Plan by withholding shares of Common Stock underlying an Incentive Award, by electing to tender, or by attestation as to ownership of, Previously Acquired Shares, by delivery of a Broker Exercise Notice or a combination of such methods. For purposes of satisfying a Participant’s withholding or employment-related tax obligation, shares of Common Stock withheld by the Company or Previously Acquired Shares tendered or covered by an attestation will be valued at their Fair Market Value on the Tax Date.
14. Change in Control.
14.1 A “Change in Control” shall be deemed to have occurred if the event set forth in any one of the following paragraphs shall have occurred:
(a) the sale, lease, exchange or other transfer, directly or indirectly, of substantially all of the assets of the Company (in one transaction or in a series of related transactions) to a person or entity that is not controlled by the Company;
(b) the approval by the stockholders of the Company of any plan or proposal for the liquidation or dissolution of the Company;
(c) any person becomes after the effective date of the Plan the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of (A) 20% or more, but not 50% or more, of the combined voting power of the Company’s outstanding securities ordinarily having the right to vote at elections of directors, unless the transaction resulting in such ownership has been approved in advance by the Continuity Directors, or (B) 50% or more of the combined voting power of the Company’s outstanding securities ordinarily having the right to vote at elections of directors (regardless of any approval by the Continuity Directors);
(d) a merger or consolidation to which the Company is a party if the stockholders of the Company immediately prior to effective date of such merger or consolidation have “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act), immediately following the effective date of such merger or consolidation, of securities of the surviving corporation representing (A) more than 50%, but less than 80%, of the combined voting power of the surviving corporation’s then outstanding securities ordinarily having the right to vote at elections of directors, unless such merger or consolidation has been approved in advance by the Continuity Directors (as defined below), or (B) 50% or less of the combined voting power of the surviving corporation’s then outstanding securities ordinarily having the right to vote at elections of directors (regardless of any approval by the Continuity Directors);
(e) the Continuity Directors cease for any reason to constitute at least a majority of the Board; or
(f) any other change in control of the Company of a nature that would be required to be reported pursuant to Section 13 or 15(d) of the Exchange Act, whether or not the Company is then subject to such reporting requirements.
For purposes of this Section 14, “Continuity Directors” of the Company will mean any individuals who are members of the Board on the Restatement Effective Date and any individual who subsequently becomes a member of the Board whose election, or nomination for election by the Company’s stockholders, was approved by a vote of
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at least a majority of the Continuity Directors (either by specific vote or by approval of the Company’s proxy statement in which such individual is named as a nominee for director without objection to such nomination).
14.2 Vesting Upon a Change in Control. For Incentive Awards granted under the Plan on or after March 24, 2022, if a Change in Control occurs prior to the date on which an Incentive Award is vested and prior to the Participant’s separation from service, if such Incentive Award remains outstanding following the Change in Control (whether by substitution with another award or otherwise), and if there is a termination of the Participant’s employment or service with the Company and any subsidiary (or any successor) without “Good Cause” or without “Cause,” (as defined in any agreement between the Participant and the Company, or if not so defined, without “Cause” as defined in the Plan), or a constructive termination, including a resignation by the Participant for “Good Reason” (as may be defined in any agreement between the Participant and the Company) at any time within the twenty-four (24) months following the Change in Control, then the following shall apply:
•All outstanding Options and Stock Appreciation Rights shall become fully vested and exercisable;
•All Incentive Awards that are Restricted Stock Awards, Stock Unit Awards, and/or Stock Bonuses shall become fully vested; and
•For all Incentive Awards that are Performance Awards, the Committee shall determine the extent to which performance conditions are met based on actual performance achieved, in accordance with the terms of the Plan and the applicable Award Agreement.
14.3 Cash Payment.
(a) In the event of a merger or consolidation of the Company with or into another corporation or a sale of substantially all of the stock of the Company (a “Corporate Transaction”), each outstanding Incentive Award (including the portion of the award that is not otherwise exercisable or non-forfeitable) shall automatically lapse without the consent of any Participant, unless pursuant to the terms of such Corporate Transaction the outstanding Incentive Award is required or permitted to remain outstanding or is assumed by the surviving company (or its parent company) or replaced with an equivalent Incentive Award granted by the surviving company (or its parent company) in substitution for such outstanding Incentive Award. If an Incentive Award lapses pursuant to the preceding sentence because it was not assumed or substituted for connection with the Corporate Transaction, then (i) all the Participant’s Options and Stock Appreciation Rights shall become immediately vested and exercisable immediately prior to the consummation of the Corporate Transaction; (ii) all time-based vesting requirements on Participant’s Incentive Awards that are Restricted Stock Awards, Stock Unit Awards, and/or Stock Bonuses shall be deemed to be satisfied in full; and (iii) with respect to each Incentive Award that are Performance Awards, the Committee shall determine the extent to which performance conditions are met based on actual performance achieved, in accordance with the terms of the Plan and the applicable Award Agreement. After giving effect to the vesting acceleration described herein, the Committee shall either (i) allow all Participants to exercise all such Options and Stock Appreciation Rights to the extent vested and exercisable as of the consummation of such Corporate Transaction within a reasonable period prior to the consummation of the Corporate Transaction and cancel any outstanding Incentive Awards that remain unexercised or which are not otherwise vested upon consummation of the Corporate Transaction, or (ii) cancel any or all outstanding Incentive Awards in exchange for a payment (in cash, or in securities or other property) in an amount equal to the amount that the Participant would have received (net of the exercise price) with respect to such vested Incentive Awards had such Options and Stock Appreciation Rights been exercised and such other vested Incentive Awards settled immediately prior to the consummation of the Corporate Transaction. Notwithstanding the foregoing, if an Incentive Award lapses upon consummation of a Corporate Transaction and such award is not vested and non-forfeitable or the exercise price with respect to any outstanding Option or Stock Appreciation Right exceeds the Fair Market Value of the Common Stock immediately prior to the consummation of the Corporation Transaction, such Incentive Awards shall be cancelled without any payment to the Participant.
(b) Liquidation or Dissolution of the Company. In the event of the proposed dissolution or liquidation of the Company, each Incentive Award will terminate immediately upon consummation of such proposed action, unless otherwise provided by the Committee. Any Incentive Awards that are not vested and non-forfeitable as of the consummation of such proposed action and any Options or Stock Appreciation Rights that remain unexercised upon consummation of such proposed action shall be cancelled without any payment to the Participant.
(c) Special Provisions for Incentive Awards Subject to Section 409A of the Code. Notwithstanding the foregoing provisions of this Section 14.3, if an Incentive Award is subject to Section 409A of the Code, no payment of cash or other property shall be made with respect to such Incentive Award until the earlier of a Change in Control within the meaning of Section 409A of the Code or such time as such Incentive Award would have otherwise settled in the absence of a Corporate Transaction.
15. Rights of Eligible Recipients and Participants; Transferability.
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15.1 Employment or Service. Nothing in the Plan will interfere with or limit in any way the right of the Company or any.
Subsidiary to terminate the employment or service of any Eligible Recipient or Participant at any time, nor confer upon any Eligible Recipient or Participant any right to continue in the employ or service of the Company or any Subsidiary.
15.2 Rights as a Stockholder; Dividends. As a holder of Incentive Awards (other than Restricted Stock Awards), a Participant will have no rights as a stockholder unless and until such Incentive Awards are exercised for, or paid in the form of, shares of Common Stock and the Participant becomes the holder of record of such shares. Except as otherwise provided in the Plan or otherwise provided by the Committee, no adjustment will be made in the amount of cash payable or in the number of shares of Common Stock issuable under Incentive Awards denominated in or based on the value of shares of Common Stock as a result of cash dividends or distributions paid to holders of Common Stock prior to the payment of, or issuance of shares of Common Stock under, such Incentive Awards.
15.3 Restrictions on Transfer.
(a) Except pursuant to testamentary will or the laws of descent and distribution or as otherwise expressly permitted by subsections (b) and (c) below, no right or interest of any Participant in an Incentive Award prior to the exercise (in the case of Options) or vesting or issuance (in the case of Restricted Stock Awards and Performance Awards) of such Incentive Award will be assignable or transferable, or subjected to any lien, during the lifetime of the Participant, either voluntarily or involuntarily, directly or indirectly, by operation of law or otherwise.
(b) A Participant will be entitled to designate a beneficiary to receive an Incentive Award upon such Participant’s death, and in the event of such Participant’s death, payment of any amounts due under the Plan will be made to, and exercise of any Options or Stock Appreciation Rights (to the extent permitted pursuant to Section 12 of the Plan) may be made by, such beneficiary. If a deceased Participant has failed to designate a beneficiary, or if a beneficiary designated by the Participant fails to survive the Participant, payment of any amounts due under the Plan will be made to, and exercise of any Options or Stock Appreciation Rights (to the extent permitted pursuant to Section 12 of the Plan) may be made by, the Participant’s legal representatives, heirs and legatees. If a deceased Participant has designated a beneficiary and such beneficiary survives the Participant but dies before complete payment of all amounts due under the Plan or exercise of all exercisable Options or Stock Appreciation Rights, then such payments will be made to, and the exercise of such Options or Stock Appreciation Rights may be made by, the legal representatives, heirs and legatees of the beneficiary.
(c) Upon a Participant’s request, the Committee may, in its sole discretion, permit a transfer of all or a portion of a Non-Statutory Stock Option, other than for value, to such Participant’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, any person sharing such Participant’s household (other than a tenant or employee), a trust in which any of the foregoing have more than fifty percent of the beneficial interests, a foundation in which any of the foregoing (or the Participant) control the management of assets, and any other entity in which these persons (or the Participant) own more than fifty percent of the voting interests. Any permitted transferee will remain subject to all the terms and conditions applicable to the Participant prior to the transfer. A permitted transfer may be conditioned upon such requirements as the Committee may, in its sole discretion, determine, including, but not limited to execution and/or delivery of appropriate acknowledgments, opinion of counsel, or other documents by the transferee.
15.4 Non-Exclusivity of the Plan. Nothing contained in the Plan is intended to modify or rescind any previously approved compensation plans or programs of the Company or create any limitations on the power or authority of the Board to adopt such additional or other compensation arrangements as the Board may deem necessary or desirable.
16. Securities Law and Other Restrictions.
Notwithstanding any other provision of the Plan or any agreements entered into pursuant to the Plan, the Company will not be required to issue any shares of Common Stock under this Plan, and a Participant may not sell, assign, transfer or otherwise dispose of shares of Common Stock issued pursuant to Incentive Awards granted under the Plan, unless (a) there is in effect with respect to such shares a registration statement under the Securities Act and any applicable securities laws of a state or foreign jurisdiction or an exemption from such registration under the Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other U.S. or foreign regulatory body which the Committee, in its sole discretion, deems necessary or advisable. The Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates
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representing shares of Common Stock, as may be deemed necessary or advisable by the Company in order to comply with such securities law or other restrictions.
17. Compliance with Section 409A.
It is intended that the Plan and all Incentive Awards hereunder be administered in a manner that will comply with the requirements of Section 409A of the Code, or the requirements of an exception to Section 409A of the Code. The Committee is authorized to adopt rules or regulations deemed necessary or appropriate to qualify for an exception from or to comply with the requirements of Section 409A of the Code (including any transition or grandfather rules relating thereto). Notwithstanding anything in this Section 17 to the contrary, with respect to any Incentive Award subject to Section 409A of the Code, no amendment to or payment under such Incentive Award will be made unless and only to the extent permitted under Section 409A of the Code.
18. Plan Amendment, Modification and Termination.
The Board may suspend or terminate the Plan or any portion thereof at any time. In addition to the authority of the Committee to amend the Plan under Section 3.2(e) of the Plan, the Board may amend the Plan from time to time in such respects as the Board may deem advisable in order that Incentive Awards under the Plan will conform to any change in applicable laws or regulations or in any other respect the Board may deem to be in the best interests of the Company; provided, however, that no such amendments to the Plan will be effective without approval of the Company’s stockholders if: (i) stockholder approval of the amendment is then required pursuant to Section 422 of the Code or the rules of The NASDAQ Stock Market (or other applicable exchange or market on which the Company’s Common Stock may be traded or quoted); or (ii) such amendment seeks to increase the number of shares authorized for issuance hereunder (other than by virtue of an adjustment under Section 4.3 of the Plan) or to modify Section 3.2(d) of the Plan. No termination, suspension or amendment of the Plan may adversely affect any outstanding Incentive Award without the consent of the affected Participant; provided, however, that this sentence will not impair the right of the Committee to take whatever action it deems appropriate under Sections 3.2(c), 4.3 and 14 of the Plan.
19. Effective Date and Duration of the Plan.
The Plan will be effective as of the Restatement Effective Date and will terminate on the day immediately preceding the tenth anniversary of its Restatement Effective Date, if not terminated prior to such time by Board action. No Incentive Award will be granted after termination of the Plan. Incentive Awards outstanding upon termination of the Plan may continue to be exercised, earned or become free of restrictions, according to their terms.
20. Miscellaneous.
20.1 Dividend Equivalents. Any Participant selected by the Committee may be granted dividend equivalents based on the dividends declared on shares of Common Stock that are subject to any Incentive Award, to be credited as of dividend payment dates, during the period between the date the Incentive Award is granted and the date the Incentive Award is exercised, vests or expires, as determined by the Committee. Such dividend equivalents will be converted to cash or additional shares of Common Stock by such formula and at such time and subject to such limitations as may be determined by the Committee. Notwithstanding the foregoing, the Committee may not grant dividend equivalents based on the dividends declared on shares of Common Stock that are subject to an Option or Stock Appreciation Right and further, no dividend or dividend equivalents will be paid out with respect to any unvested Incentive Awards.
20.2 Fractional Shares. No fractional shares of Common Stock will be issued or delivered under the Plan or any Award. The Committee will determine whether cash, other Awards or other property will be issued or paid.
20.3 Governing Law. Except to the extent expressly provided herein or in connection with other matters of corporate governance and authority (all of which shall be governed by the laws of the Company’s jurisdiction of incorporation), the validity, construction, interpretation, administration and effect of the Plan and any rules, regulations and actions relating to the Plan will be governed by and construed exclusively in accordance with the laws of the State of Delaware, notwithstanding the conflicts of laws principles of any jurisdictions.
20.4 Successors and Assigns. The Plan will be binding upon and inure to the benefit of the successors and permitted assigns of the Company and the Participants.
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20.5 Construction. Wherever possible, each provision of the Plan and any agreement evidencing an Incentive Award granted under the Plan will be interpreted so that it is valid under the applicable law. If any provision of the Plan or any agreement evidencing an Incentive Award granted under the Plan is to any extent invalid under the applicable law, that provision will still be effective to the extent it remains valid. The remainder of the Plan and the Incentive Award agreement also will continue to be valid, and the entire Plan and Incentive Award agreement will continue to be valid in other jurisdictions.
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Appendix C
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AMENDED AND RESTATED ANI PHARMACEUTICALS, INC. 2016 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the Amended and Restated ANI Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan.
1.Purpose; Effectiveness.
(a)The purpose of the Plan is to provide employees of the Company and its Designated Parents or Subsidiaries with an opportunity to purchase Common Stock of the Company through accumulated payroll deductions. It is the intention of the Company to have the Plan qualify as an “Employee Stock Purchase Plan” under Section 423 of the Code. The provisions of the Plan, accordingly, shall be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code. Capitalized terms used herein shall have the meaning ascribed to such term in Section 2 of this Plan.
(b)The Plan was effective as of the Effective Date and was amended and restated effective as of the Amendment Effective Date and any outstanding options in effect on the Amendment Effective Date shall remain subject to the provisions of the Plan in effect on such date and without regard to any changes set forth in the amendment and restatement.
2.Definitions. As used herein, the following definitions shall apply:
(a)“Administrator” means either the Board or a committee of the Board that is responsible for the administration of the Plan as is designated from time to time by resolution of the Board.
(b)“Amendment Effective Date” means May 22, 2025, which is the date of the 2025 Annual Meeting of Stockholders of the Company where the Plan will be submitted to the Company’s stockholders for approval.
(c)“Applicable Laws” means the legal requirements relating to the administration of employee stock purchase plans, if any, under applicable provisions of federal securities laws, state corporate and securities laws, the Code, the rules of any applicable stock exchange or national market system, and the rules of any foreign jurisdiction applicable to participation in the Plan by residents therein.
(d)“Board” means the Board of Directors of the Company.
(e)“Change in Control” has the meaning set forth in the Equity Plan.
(f)“Change of Status Notice” means the agreement used to change a Participant’s payroll deductions, attached in the form of Exhibit B to this Plan, or such other form or method (including electronic forms) as the Administrator may designate from time to time.
(g)“Code” means the Internal Revenue Code of 1986, as amended.
(h)“Common Stock” means the common stock of the Company, par value $0.0001 per share.
(i)“Company” means ANI Pharmaceuticals, Inc., a Delaware corporation.
(j)“Compensation” means an Employee’s base wages or base salary from the Company or one or more Designated Parents or Subsidiaries, including such amounts of base wages or base salary as are deferred by the Employee (i) under a qualified cash or deferred arrangement described in Section 401(k) of the Code, or (ii) to a plan qualified under Section 125 of the Code. Compensation does not include overtime, bonuses, annual awards, other incentive payments, reimbursements or other expense allowances, fringe benefits (cash or noncash), moving expenses, deferred compensation, contributions (other than contributions described in the first sentence) made on the Employee’s behalf by the Company or one or more Designated Parents or Subsidiaries under any employee benefit or welfare plan now or hereafter established, and any other payments not specifically referenced in the first sentence.
(k)“Designated Parents or Subsidiaries” means the Parents or Subsidiaries which have been designated by the Administrator from time to time as eligible to participate in the Plan. As of the Amendment Effective Date the following entities are Designated Subsidiaries: ANIP Acquisition Company dba ANI Pharmaceuticals, Inc., a Delaware corporation, Alimera Sciences, Inc., a Delaware corporation, and Novitium Pharma LLC, a Delaware limited liability company.
(l)“Effective Date” means July 1, 2016.
(m)“Employee” means any individual, including an officer or director, who is an employee of the Company or a Designated Parent or Subsidiary for purposes of Section 423 of the Code. For purposes of the Plan, the employment relationship shall be treated as continuing intact while the individual is on sick leave or other leave of absence approved by the individual’s employer. Where the period of leave exceeds ninety (90) days and the individual’s right to reemployment is not guaranteed either by statute or by contract, the employment relationship will be deemed to have terminated on the ninety-first (91st) day of such leave, for purposes of determining eligibility to participate in the Plan pursuant to Section 3 below and the treatment of a participant’s payroll deductions upon termination of employment pursuant to Section 10 below.
(n)“Enrollment Date” means the first day of each Offer Period.
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(o)“Equity Plan” means the ANI Pharmaceuticals, Inc. Amended and Restated 2022 Stock Incentive Plan (as in effect from time to time) or any successor equity compensation plan thereto.
(p)“Exchange Act” means the Securities Exchange Act of 1934, as amended.
(q)“Exercise Date” means the last day of each Purchase Period.
(r)“Fair Market Value” means, as of any date, the value of Common Stock determined as follows:
(1) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation The Nasdaq Global Market, the Fair Market Value of a share of Common Stock shall be the closing sales price for such Common Stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the date of determination (or, if no closing sales price or closing bid was reported on that date, as applicable, on the last trading date such closing sales price or closing bid was reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
(2) If the Common Stock is regularly quoted on an automated quotation system (including the OTC Bulletin Board) or by a recognized securities dealer, but selling prices are not reported, the Fair Market Value of a share of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on date of determination (or, if no such prices were reported on that date, on the last date such prices were reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable; or
(3) In the absence of an established market for the Common Stock of the type described in (1) and (2), above, the Fair Market Value thereof shall be determined by the Administrator in good faith.
(s)“Offer Period” means an Offer Period established pursuant to Section 4 hereof.
(t)“Parent” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.
(u)“Participant” means an Employee of the Company or Designated Parent or Subsidiary who is actively participating in the Plan.
(v)“Plan” means this Amended and Restated ANI Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan.
(w)“Purchase Period” means a period of approximately six (6) months, or such other period determined by the Administrator, occurring during an Offer Period, during which time a Participant is permitted to purchase shares of Common Stock in accordance with the terms of this Plan.
(x)“Purchase Price” shall mean an amount equal to eighty-five percent (85%) of the lower of (i) Fair Market Value of a share of Common Stock on the Enrollment Date or (ii) Fair Market Value of a share of Common Stock on the Exercise Date; provided that the Administrator may, prior to the start of any Offer Period, establish a higher price per share of Common Stock for the applicable Offer Period.
(y)“Reserve” means the sum of the number of shares of Common Stock covered by each option under the Plan which have not yet been exercised and the number of shares of Common Stock which have been authorized for issuance under the Plan but not yet placed under option.
(z)“Subscription Agreement” means the agreement authorizing payroll deductions in the form of Exhibit A to this Plan, or such other form or method (including electronic forms) as the Administrator may designate from time to time.
(aa)“Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.
3.Eligibility.
(a)General. Any individual who is an Employee on a given Enrollment Date shall be eligible to participate in the Plan for the Offer Period commencing with such Enrollment Date.
(b)Limitations on Grant and Accrual. Any provisions of the Plan to the contrary notwithstanding, no Employee shall be granted an option under the Plan (i) if, immediately after the grant, such Employee (taking into account stock owned by any other person whose stock would be attributed to such Employee pursuant to Section 424(d) of the Code) would own stock and/or hold outstanding options to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or of any Parent or Subsidiary, or (ii) which permits the Employee’s rights to purchase stock under all employee stock purchase plans of the Company and its Parents or Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) worth of stock (determined at the Fair Market Value of the shares at the time such option is granted) for each calendar year in which such option is outstanding at any time. The determination of the accrual of the right to purchase stock shall be made in accordance with Section 423(b)(8) of the Code and the regulations thereunder.
(c)Other Limits on Eligibility. Notwithstanding Subsection (a), above, unless the Administrator determines otherwise for a relevant Offering Period, the following Employees shall not be eligible to participate in the Plan for any relevant Offer Period: (i) Employees whose customary employment is twenty (20) hours or less per week; (ii) Employees whose customary employment is for not more than five (5) months in
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any calendar year; and (iii) Employees who have been employed for less than one (1) month. The Administrator can also exclude, for any particular Offering Period, (A) any Employee who is a “highly compensated employee” as defined within the meaning of section 414(q) of the Code; (B) any Employee who are subject to rules or laws of a foreign jurisdiction and would be prohibited by such laws from participation of such Employees in the Plan or their participation would cause the Plan to violate a requirement of Section 423 of the Code; (C) any Employee who has not been employed at least two (2) years; or (D) any Employee also excludable under Section 423 of the Code and the regulations and guidance issued thereunder. Any exclusion set forth in this Section 3(c) shall be applied in an identical manner for an Offer Period to all Employees and in accordance with Treasury Regulation Section 1.423-2(e).
4.Offer Periods.
(a)The Plan shall be implemented through overlapping or consecutive Offer Periods until such time as (i) the maximum number of shares of Common Stock available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been sooner terminated in accordance with Section 19 hereof. The Administrator shall determine the duration of each Offer Period, subject to Sections 18(b) and 19; provided that in no event shall the Offer Period exceed twenty-seven (27) months. The Administrator will establish a Purchase Period during an Offer Period, as well as the Enrollment Date and Exercise Date applicable to such Purchase Period.
(b)A Participant shall be granted a separate option for each Offer Period in which the Participant participates. The option shall be granted on the Enrollment Date and shall be automatically exercised in successive installments on the Exercise Dates ending within the Offer Period.
(c)If on the first day of any Purchase Period in an Offer Period in which a Participant is participating, the Fair Market Value of the Common Stock is less than the Fair Market Value of the Common Stock on the Enrollment Date of the Offer Period (after taking into account any adjustment during the Offer Period pursuant to Section 18(a)), the Offer Period shall be terminated automatically, and the Participant shall be enrolled automatically in the new Offer Period which has its first Purchase Period commencing on that date, provided the Participant is eligible to participate in the Plan on that date and has not elected to terminate participation in the Plan.
(d)Except as specifically provided herein, the acquisition of Common Stock through participation in the Plan for any Offer Period shall neither limit nor require the acquisition of Common Stock by a Participant in any subsequent Offer Period.
5.Participation.
(a)An eligible Employee may become a Participant in the Plan by completing a Subscription Agreement and filing it with the designated payroll office of the Company at least ten (10) business days prior to the Enrollment Date for the Offer Period in which such participation will commence, unless a later time for filing the Subscription Agreement is set by the Administrator for all eligible Employees with respect to a given Offer Period.
(b)Payroll deductions for a Participant shall commence with the first partial or full payroll period beginning on the Enrollment Date and shall end on the last complete payroll period during the Offer Period, unless sooner terminated by the Participant as provided in Section 10.
6.Payroll Deductions.
(a)At the time a Participant files a Subscription Agreement, the Participant shall elect to have payroll deductions made during the Offer Period in amounts between one percent (1%) and not exceeding ten percent (10%), or such lesser maximum amount as required under Applicable Law, of the Compensation which the Participant receives during the Offer Period, unless the Administrator establishes a different maximum percentage prior to the Enrollment Date of the applicable Offer Period (subject to the limitations of Section 3 and Section 7).
(b)Unless otherwise permitted by the Administrator for an applicable Purchase Period, (i) all payroll deductions made for a Participant shall be credited to the Participant’s account under the Plan and will be withheld in whole percentages only and (ii) Participant may not make any additional payments into such account. To the extent necessary to comply with local law, the Administrator may permit Participants in one or more offerings to make contributions to the Plan by means other than payroll deductions.
(c)A Participant may discontinue participation in the Plan as provided in Section 10, or may increase or decrease the rate of payroll deductions during the Offer Period by completing and filing with the Company a Change of Status Notice authorizing an increase or decrease in the payroll deduction rate. Any increase or decrease in the rate of a Participant’s payroll deductions shall be effective with the first full payroll period commencing ten (10) business days after the Company’s receipt of the Change of Status Notice unless the Company elects to process a given change in participation more quickly. A Participant’s Subscription Agreement (as modified by any Change of Status Notice) shall remain in effect
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for successive Offer Periods unless terminated as provided in Section 10. The Administrator shall be authorized to limit the number of payroll deduction rate changes during any Offer Period.
(d)Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 3(b) herein, a Participant’s payroll deductions shall be decreased to zero percent (0%). Payroll deductions shall recommence at the rate provided in such Participant’s Subscription Agreement, as amended, at the time when permitted under Section 423(b)(8) of the Code and Section 3(b) herein, unless such participation is sooner terminated by the Participant as provided in Section 10.
7.Grant of Option. On each Enrollment Date, each Participant shall be granted an option to purchase (at the applicable Purchase Price) shares of the Common Stock, subject to adjustment as provided in Section 18 hereof; provided that, subject to the limitations described in Section 3(b), Section 6 and Section 12 hereof, in connection with any offering, the Administrator may (i) specify a maximum number of shares of Common Stock that may be purchased by any single Participant in any Purchase Period, and if no such limit is specified for an applicable Purchase Period, such limit shall be two hundred fifty (250) shares of Common Stock; and (ii) specify a maximum aggregate number of shares of Common Stock that may be purchased by all Participants pursuant to such offering. For the avoidance of doubt, the Administrator shall have the discretionary authority, exercisable prior to the start of any Offer Period, to increase or decrease the limitations to be in effect for the number of shares of Common Stock purchasable per Participant in any Purchase Period.
8.Exercise of Option. Unless a Participant withdraws from the Plan as provided in Section 10, below, the Participant’s option for the purchase of shares of Common Stock will be exercised automatically on each Exercise Date, by applying the accumulated payroll deductions in the Participant’s account to purchase the number of full shares of Common Stock subject to the option by dividing such Participant’s payroll deductions accumulated prior to such Exercise Date and retained in the Participant’s account as of the Exercise Date by the applicable Purchase Price (subject to the limitation on the maximum number of shares of Common Stock purchasable per Participant set forth above). No fractional shares of Common Stock will be purchased, unless otherwise determined by the Administrator. Any payroll deductions accumulated in a Participant’s account which are not sufficient to purchase a full share of Common Stock shall be carried over to the next Purchase Period or Offer Period, whichever applies, or returned to the Participant, if the Participant withdraws from the Plan. Notwithstanding the foregoing, any amount remaining in a Participant’s account following the purchase of shares of Common Stock on the Exercise Date due to the application of Section 423(b)(8) of the Code or Section 7, above, shall be returned to the Participant and shall not be carried over to the next Offer Period or Purchase Period. During a Participant’s lifetime, a Participant’s option to purchase shares hereunder is exercisable only by the Participant.
9.Delivery. Upon receipt of a request from a Participant after each Exercise Date on which a purchase of shares of Common Stock occurs, the Company shall arrange the delivery to such Participant, as promptly as practicable, of a certificate representing the shares of Common Stock purchased upon exercise of the Participant’s option; provided that the Company shall not be required to issue such a certificate if the Participant’s ownership of applicable shares of Common Stock is appropriately noted in the electronic records of the Company and/or its keeper of stockholder records.
10.Withdrawal; Termination of Employment.
(a)A Participant may, no later than fourteen (14) days (or such other period as determined by the Administrator) prior to Exercise Date, either (i) withdraw all but not less than all the payroll deductions credited to the Participant’s account and not yet used to exercise the Participant’s option under the Plan or (ii) terminate future payroll deductions, but allow accumulated payroll deductions to be used to exercise the Participant’s option under the Plan at any time by giving written notice to the Company with a Change of Status Notice. If the Participant elects withdrawal alternative (i) described above, all of the Participant’s payroll deductions credited to the Participant’s account will be paid to such Participant as promptly as practicable after receipt of notice of withdrawal, such Participant’s option for the Offer Period will be automatically terminated, and no further payroll deductions for the purchase of shares will be made during the Offer Period. If the Participant elects withdrawal alternative (ii) described above, no further payroll deductions for the purchase of shares will be made during the Offer Period, all of the Participant’s payroll deductions credited to the Participant’s account will be applied to the exercise of the Participant’s option on the next Exercise Date, and after such Exercise Date, such Participant’s option for the Offer Period will be automatically terminated. If a Participant withdraws from an Offer Period, payroll deductions will not resume at the beginning of the succeeding Offer Period unless the Participant delivers to the Company a new Subscription Agreement.
(b)Upon termination of a Participant’s employment relationship at a time more than three (3) months from the next scheduled Exercise Date, the payroll deductions credited to such Participant’s account during the Offer Period but not yet used to exercise the option will be returned to such Participant or, in the case of the Participant’s death, to the person or persons entitled thereto under Section 14, and such Participant’s
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option will be automatically terminated. Upon termination of a Participant’s employment relationship within three (3) months of the next scheduled Exercise Date, the payroll deductions credited to such Participant’s account during the Offer Period but not yet used to exercise the option will be applied to the purchase of Common Stock on the next Exercise Date, unless the Participant (or in the case of the Participant’s death, the person or persons entitled to the Participant’s account balance under Section 14) withdraws from the Plan by submitting a Change of Status Notice in accordance with subsection (a) of this Section 10. In such a case, no further payroll deductions will be credited to the Participant’s account following the Participant’s termination of employment and the Participant’s option under the Plan will be automatically terminated after the purchase of Common Stock on the next scheduled Exercise Date.
11.Interest. No interest shall accrue on the payroll deductions credited to a Participant’s account under the Plan.
12.Stock.
(a)Following the Amendment Effective Date, the maximum number of shares of Common Stock which shall be made available for sale under the Plan shall be the sum of 500,000 shares of Common Stock plus the number of authorized and unissued shares of Common Stock authorized under the Plan prior to the Amendment Effective Date, in each case subject to adjustment upon changes in capitalization of the Company as provided in Section 18. If the Administrator determines that, on a given Exercise Date, the number of shares of Common Stock with respect to which options are to be exercised may exceed (x) the number of shares then available for sale under the Plan or (y) the number of shares available for sale under the Plan on the Enrollment Date(s) of one or more of the Offer Periods in which such Exercise Date is to occur, the Administrator may provide that the Company shall (i) make a pro rata allocation of the shares of Common Stock available for purchase on such Enrollment Dates or Exercise Date, as applicable, in a uniform and nondiscriminatory manner, and (ii) either continue all Offer Periods then in effect or terminate any one or more Offer Periods then in effect pursuant to Section 19, below.
(b)A Participant will have no interest or voting right in shares of Common Stock covered by the Participant’s option until such shares of Common Stock are actually purchased on the Participant’s behalf in accordance with the applicable provisions of the Plan. No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date of such purchase.
(c)Shares of Common Stock to be delivered to a Participant under the Plan will be registered in the name of the Participant or in the name of the Participant and the Participant’s spouse.
13.Administration. The Plan shall be administered by the Administrator which shall have full and exclusive discretionary authority to construe, interpret and apply the terms of the Plan, to determine eligibility and to adjudicate all disputed claims filed under the Plan. Every finding, decision and determination made by the Administrator shall, to the full extent permitted by Applicable Law, be final and binding upon all persons.
14.Designation of Beneficiary.
(a)Each Participant will file a written designation of a beneficiary who is to receive any shares of Common Stock and cash, if any, from the Participant’s account under the Plan in the event of such Participant’s death. If a Participant is married and the designated beneficiary is not the spouse, spousal consent shall be required for such designation to be effective.
(b)Such designation of beneficiary may be changed by the Participant (and the Participant’s spouse, if any) at any time by written notice. In the event of the death of a Participant and in the absence of a beneficiary validly designated under the Plan who is living (or in existence) at the time of such Participant’s death, the Company shall deliver such shares of the Common Stock and/or cash to the Participant’s spouse, or if no spouse of the Participant is known to exist or survive the Participant, to the estate of the Participant.
15.Transferability. Neither payroll deductions credited to a Participant’s account nor any rights with regard to the exercise of an option or to receive shares of Common Stock under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and distribution, or as provided in Section 14 hereof) by the Participant. Any such attempt at assignment, transfer, pledge or other disposition shall be without effect, except that the Administrator may treat such act as an election to withdraw funds from an Offer Period in accordance with Section 10.
16.Use of Funds. All payroll deductions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions.
17.Reports. Individual accounts will be maintained for each Participant in the Plan. Statements of account will be given to Participants at least annually, which statements will set forth the amounts of payroll deductions, the Purchase Price, the number of shares of Common Stock purchased and the remaining cash balance, if any.
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18.Adjustments Upon Changes in Capitalization; Change in Control.
(a)Adjustments Upon Changes in Capitalization. Subject to any required action by the stockholders of the Company, the Reserves, the Purchase Price, the maximum number of shares of Common Stock that may be purchased in any Offer Period or Purchase Period, as well as any other terms that the Administrator determines require adjustment shall be proportionately adjusted for (i) any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, (ii) any other increase or decrease in the number of issued shares of Common Stock effected without receipt of consideration by the Company, or (iii) as the Administrator may determine in its discretion, any other transaction with respect to Common Stock to which Section 424(a) of the Code applies; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” Such adjustment shall be made by the Administrator and its determination shall be final, binding and conclusive. Except as the Administrator determines, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason hereof shall be made with respect to, the Reserves and the Purchase Price.
(b)Change in Control. In the event of a proposed Change in Control, each option under the Plan shall be assumed by such successor corporation or a parent or subsidiary of such successor corporation, unless the Administrator, in the exercise of its sole discretion and in lieu of such assumption, determines to shorten the Offer Period then in progress by setting a new Exercise Date (the “New Exercise Date”). If the Administrator shortens the Offer Period then in progress in lieu of assumption in the event of a Change in Control, the Administrator shall notify each Participant in writing at least ten (10) business days prior to the New Exercise Date, that the Exercise Date for the Participant’s option has been changed to the New Exercise Date and that either:
(1) the Participant’s option will be exercised automatically on the New Exercise Date, unless prior to such date the Participant has withdrawn from the Offer Period as provided in Section 10; or
(2) the Company shall pay to the Participant on the New Exercise Date an amount in cash, cash equivalents, or property as determined by the Administrator that is equal to the difference in the Fair Market Value of the shares of Common Stock subject to the option and the Purchase Price due had the Participant’s option been exercised automatically under Subsection (b)(1) above.
(c)For purposes of this Subsection, an option granted under the Plan shall be deemed to be assumed if, in connection with the Change in Control, the option is replaced with a comparable option with respect to shares of capital stock of the successor corporation or Parent thereof. The determination of option comparability shall be made by the Administrator prior to the Change in Control and its determination shall be final, binding and conclusive on all persons.
19.Amendment or Termination.
(a)The Administrator may at any time and for any reason terminate or amend the Plan. Except as provided in Section 18, no such termination can affect options previously granted, provided that the Plan or any one or more Offer Periods may be terminated by the Administrator on any Exercise Date or by the Administrator establishing a new Exercise Date with respect to any Offer Period and/or any Purchase Period then in progress if the Administrator determines that the termination of the Plan or such one or more Offer Periods is in the best interests of the Company and its stockholders. Except as provided in Section 18 and this Section 19, no amendment may make any change in any option theretofore granted which materially and adversely affects the rights of any Participant without the consent of affected Participants. To the extent necessary to comply with Section 423 of the Code (or any successor rule or provision or any other Applicable Law), the Company shall obtain stockholder approval in such a manner and to such a degree as required.
(b)Without stockholder consent and without regard to whether any Participant rights may be considered to have been “materially and adversely affected,” the Administrator shall be entitled to limit the frequency and/or number of changes in the amount withheld during Offer Periods, change the length of Purchase Periods within any Offer Period, determine the length of any future Offer Period, determine whether future Offer Periods shall be consecutive or overlapping, establish the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars, establish additional terms, conditions, rules or procedures to accommodate the rules or laws of applicable foreign jurisdictions, permit payroll withholding in excess of the amount designated by a Participant in order to adjust for delays or mistakes in the Company’s processing of properly completed withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Common Stock for each Participant properly correspond with amounts withheld from the Participant’s Compensation, and establish such other limitations or procedures as the Administrator determines in its sole discretion advisable and which are consistent with the Plan.
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20.Notices. All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Administrator at the location, or by the person, designated by the Administrator for the receipt thereof.
21.Conditions Upon Issuance of Shares. Shares of Common Stock shall not be issued with respect to an option unless the exercise of such option and the issuance and delivery of such shares of Common Stock pursuant thereto shall comply with all Applicable Laws and shall be further subject to the approval of counsel for the Company with respect to such compliance. As a condition to the exercise of an option, the Company may require the Participant to represent and warrant at the time of any such exercise that the shares of Common Stock are being purchased only for investment and without any present intention to sell or distribute such shares of Common Stock if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned Applicable Laws. In addition, no options shall be exercised or shares of Common Stock issued hereunder before the Plan shall have been approved by stockholders of the Company as provided in Section 23.
22.Term of Plan. The Plan was effective on the Effective Date and shall be amended and restated as of the Amendment Effective Date. The Plan shall continue in effect for a term of twenty (20) years following the Effective Date unless sooner terminated under Section 19.
23.Stockholder Approval. Continuance of the Plan shall be subject to approval by the stockholders of the Company within twelve (12) months before or after the date the Plan is adopted. Such stockholder approval shall be obtained in the degree and manner required under Applicable Laws.
24.No Employment Rights. The Plan does not, directly or indirectly, create any right for the benefit of any employee or class of employees to purchase any shares under the Plan, or create in any employee or class of employees any right with respect to continuation of employment by the Company or a Designated Parent or Subsidiary, and it shall not be deemed to interfere in any way with such employer’s right to terminate, or otherwise modify, an employee’s employment at any time.
25.No Effect on Retirement and Other Benefit Plans. Except as specifically provided in a retirement or other benefit plan of the Company or a Designated Parent or Subsidiary, participation in the Plan shall not be deemed compensation for purposes of computing benefits or contributions under any retirement plan of the Company or a Designated Parent or Subsidiary, and shall not affect any benefits under any other benefit plan of any kind or any benefit plan subsequently instituted under which the availability or amount of benefits is related to level of compensation. The Plan is not a “Retirement Plan” or “Welfare Plan” under the Employee Retirement Income Security Act of 1974, as amended.
26.Effect of Plan. The provisions of the Plan shall, in accordance with its terms, be binding upon, and inure to the benefit of, all successors of each Participant, including, without limitation, such Participant’s estate and the executors, administrators or trustees thereof, heirs and legatees, and any receiver, trustee in bankruptcy or representative of creditors of such Participant.
27.Governing Law. The Plan is to be construed in accordance with and governed by the internal laws of the State of Delaware, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties of the parties, except to the extent the internal laws of the State of Delaware are superseded by the laws of the United States. Should any provision of the Plan be determined by a court of law to be illegal or unenforceable, the other provisions shall nevertheless remain effective and shall remain enforceable.
28.Dispute Resolution. The provisions of this Section 28 (and as restated in the Subscription Agreement) shall be the exclusive means of resolving disputes arising out of or relating to the Plan. The Company and the Participant, or their respective successors (the “parties”), shall attempt in good faith to resolve any disputes arising out of or relating to the Plan by negotiation between individuals who have authority to settle the controversy. Negotiations shall be commenced by either party by notice of a written statement of the party’s position and the name and title of the individual who will represent the party. Within thirty (30) days of the written notification, the parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to resolve the dispute. If the dispute has not been resolved by negotiation, the parties agree that any suit, action, or proceeding arising out of or relating to the Plan shall be brought in the Delaware Court of Chancery for the District of Delaware (or should such court lack jurisdiction to hear such action, suit or proceeding, in the United States District Court for the District of Delaware) and that the parties shall submit to the jurisdiction of such court. The parties irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the laying of venue for any such suit, action or proceeding brought in such court. THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH
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SUIT, ACTION OR PROCEEDING. If any one or more provisions of this Section 28 shall for any reason be held invalid or unenforceable, it is the specific intent of the parties that such provisions shall be modified to the minimum extent necessary to make it or its application valid and enforceable.
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Exhibit A
AMENDED AND RESTATED ANI PHARMACEUTICALS, INC. 2016 EMPLOYEE STOCK PURCHASE PLAN SUBSCRIPTION AGREEMENT
Effective with the Offer Period beginning on:
January 1, 20__ or July 1, 20__
1.Personal Information
Legal Name (Please Print) _______________________________________ _______ _______
(Last) (First) (MI) Location Department
Street Address_________________________________________________ ________________
Daytime Telephone
City, State/Country, Zip__________________________________________ ________________
E-Mail Address
Social Security No. __ __ __ – __ __ – __ __ __ ______ Employee I.D. No.
2. Eligibility. Any Employee whose customary employment is more than twenty (20) hours per week and more than five months per calendar year, who has been an Employee for more than one (1) month and who does not hold (directly or indirectly) five percent (5%) or more of the combined voting power of the Company, a parent or a subsidiary, whether in stock or options to acquire stock is eligible to participate in the ANI Pharmaceuticals Employee Stock Purchase Plan (the “ESPP”); provided, however, that Employees who are subject to the rules or laws of a foreign jurisdiction that prohibit or make impractical the participation of such Employees in the ESPP are not eligible to participate.
3. Definitions. Each capitalized term in this Subscription Agreement shall have the meaning set forth in the ESPP.
4. Subscription. I hereby elect to participate in the ESPP and subscribe to purchase shares of the Company’s Common Stock in accordance with this Subscription Agreement and the ESPP. I have received a complete copy of the ESPP and a prospectus describing the ESPP and understand that my participation in the ESPP is in all respects subject to the terms of the ESPP. The effectiveness of this Subscription Agreement is dependent on my eligibility to participate in the ESPP.
5. Payroll Deduction Authorization. I hereby authorize payroll deductions from my Compensation during the Offer Period in the percentage specified below (payroll reductions may not exceed ten percent (10%) of Compensation nor $21,250 per calendar year) (circle only one):
1% 2% 3% 4% 5% 6% 7% 8% 9% 10%
6. ESPP Accounts and Purchase Price. I understand that all payroll deductions will be credited to my account under the ESPP. No additional payments may be made to my account. No interest will be credited on funds held in the account at any time including any refund of the account caused by withdrawal from the ESPP. All payroll deductions shall be accumulated for the purchase of shares of Common Stock at the applicable Purchase Price determined in accordance with the ESPP.
7. Withdrawal and Changes in Payroll Deduction. I understand that I may discontinue my participation in the ESPP at any time prior to an Exercise Date as provided in Section 10 of the ESPP, but if I do not withdraw from the ESPP, any accumulated payroll deductions will be applied automatically to purchase shares of Common Stock. I may increase or decrease the rate of my payroll deductions in whole percentage increments to not less than one percent (1%) on one occasion during any Purchase Period by completing and timely filing a Change of Status Notice. Any increase or decrease will be effective for the full payroll period occurring after ten (10) business days from the Company’s receipt of the Change of Status Notice.
8. Perpetual Subscription. I understand that this Subscription Agreement shall remain in effect for successive Offer Periods until I withdraw from participation in the ESPP, or termination of the ESPP.
9. Taxes. I have reviewed the ESPP prospectus discussion of the federal tax consequences of participation in the ESPP and consulted with tax consultants as I deemed advisable prior to my participation in the ESPP. I hereby agree to notify the Company in writing within thirty (30) days of any disposition (transfer or sale) of any shares purchased under the ESPP if such disposition occurs within two (2) years of the Enrollment Date (the first day of the Offer Period during which the shares were purchased) or within one (1) year of the Exercise Date (the date I purchased such shares), and I will make adequate provision to the Company for foreign, federal, state or other tax withholding obligations, if any, which arise upon the disposition of the shares. In addition, the Company may withhold from my Compensation any amount necessary to meet applicable tax withholding obligations incident to my participation in the ESPP, including any withholding necessary to make available to the Company any tax deductions or benefits contingent on such withholding.
C-10
10. Dispute Resolution. The provisions of this Section 10 and Section 28 of the ESPP shall be the exclusive means of resolving disputes arising out of or relating to the Plan. The Company and I, or our respective successors (the “parties”), shall attempt in good faith to resolve any disputes arising out of or relating to the Plan by negotiation between individuals who have authority to settle the controversy. Negotiations shall be commenced by either party by notice of a written statement of the party’s position and the name and title of the individual who will represent the party. Within thirty (30) days of the written notification, the parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to resolve the dispute. If the dispute has not been resolved by negotiation, the Company and I agree that any suit, action, or proceeding arising out of or relating to the Plan shall be brought in the Delaware Court of Chancery for the District of Delaware (or should such court lack jurisdiction to hear such action, suit or proceeding, in the United States District Court for the District of Delaware) and that we shall submit to the jurisdiction of such court. The Company and I irrevocably waive, to the fullest extent permitted by law, any objection we may have to the laying of venue for any such suit, action or proceeding brought in such court. THE COMPANY AND I ALSO EXPRESSLY WAIVE ANY RIGHT WE HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR PROCEEDING. If any one or more provisions of this Section 10 or Section 28 of the ESPP shall for any reason be held invalid or unenforceable, it is the specific intent of the Company and I that such provisions shall be modified to the minimum extent necessary to make it or its application valid and enforceable.
11. Designation of Beneficiary. In the event of my death, I hereby designate the following person or trust as my beneficiary to receive all payments and shares due to me under the ESPP:
I am single I am married
Beneficiary (please print) ___________________________________________ Relationship to Beneficiary
(Last) (First) (MI)
Street Address ____________________________________________________ ______________
City, State/Country, Zip ____________________________________________
12. Termination of ESPP. I understand that the Company has the right, exercisable in its sole discretion, to amend or terminate the ESPP at any time, and a termination may be effective as early as an Exercise Date, including the establishment of an alternative date for an Exercise Date within each outstanding Offer Period.
Date: __________________ Employee Signature:__________________________________
__________________________________
spouse’s signature (required if beneficiary is not your spouse)
Exhibit B
AMENDED AND RESTATED ANI PHARMACEUTICALS, INC. 2016 EMPLOYEE STOCK PURCHASE PLAN SUBSCRIPTION AGREEMENT CHANGE OF STATUS NOTICE
__________________________________________
Participant Name (Please Print)
__________________________________________
Social Security Number
Withdrawal From ESPP
I hereby withdraw from the Amended and Restated ANI Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan (the “ESPP”) and agree that my option under the applicable Offer Period will be automatically terminated and all accumulated payroll deductions credited to my account will be refunded to me or applied to the purchase of Common Stock depending on the alternative indicated below. No further payroll deductions will be made for the purchase of shares in the applicable Offer Period, and I shall be eligible to participate in a future Offer Period only by timely delivery to the Company of a new Subscription Agreement. Choose one alternative below:
Withdrawal and Purchase of Common Stock
Payroll deductions will terminate, but your account balance will be applied to purchase Common Stock on the next Exercise Date. Any remaining balance will be refunded.
C-11
Withdrawal Without Purchase of Common Stock
Entire account balance will be refunded to me, and no Common Stock will be purchased on the next Exercise Date provided this notice is submitted to the Company ten (10) business days prior to the next Exercise Date.
Change in Payroll Deduction
I hereby elect to change my rate of payroll deduction under the ESPP as follows:
Percentage to be Deducted (circle one): 1% 2% 3% 4% 5% 6% 7% 8% 9% 10% | ||
An increase or a decrease in payroll deduction will be effective for the first full payroll period commencing no fewer than ten (10) business days following the Company’s receipt of this notice, unless this change is processed more quickly.
Change of Beneficiary I am single I am married
This change of beneficiary shall terminate my previous beneficiary designation under the ESPP. In the event of my death, I hereby designate the following person or trust as my beneficiary to receive all payments and shares due to me under the ESPP:
Beneficiary (please print) _____________________________________ Relationship (if any)
(Last) (First) (MI)
Street Address ______________________________________________ __________________
City, State/Country, Zip ______________________________________
Date: ______________________ Employee Signature:________________________________
________________________________
spouse’s signature (if new beneficiary is not your spouse)
C-12
Appendix D
Non-GAAP Financial Measures
Adjusted non-GAAP EBITDA
ANI’s management considers adjusted non-GAAP EBITDA to be an important financial indicator of ANI’s operating performance, providing investors and analysts with a useful measure of operating results unaffected by non-cash stock-based compensation and differences in capital structures, tax structures, capital investment cycles, ages of related assets, and compensation structures among otherwise comparable companies. Management uses adjusted non-GAAP EBITDA when analyzing Company performance.
Adjusted non-GAAP EBITDA is defined as net (loss) income, excluding tax provision or benefit, interest expense, net, other expense, net, loss on extinguishment of debt, depreciation and amortization expense, non-cash stock-based compensation expense, M&A transaction and integration expenses, contingent consideration fair value adjustments, unrealized gain on our investment in equity securities, gain on sale of the former Oakville, Ontario manufacturing site, litigation expenses related to certain matters, amortization of certain purchase price adjustments, severance expense, and certain other items that vary in frequency and impact on ANI’s results of operations. Adjusted non-GAAP EBITDA should be considered in addition to, but not in lieu of, net income or loss reported under GAAP. A reconciliation of adjusted non-GAAP EBITDA to the most directly comparable GAAP financial measure is provided below.
Adjusted non-GAAP Diluted Earnings per Share
ANI’s management considers adjusted non-GAAP diluted earnings per share to be an important financial indicator of ANI’s operating performance, providing investors and analysts with a useful measure of operating results unaffected by the non-cash stock-based compensation, non-cash interest expense, depreciation and amortization, M&A transaction and integration expenses, contingent consideration fair value adjustment, unrealized gain on our investment in equity securities, gain on sale of the former Oakville, Ontario manufacturing site, litigation expenses related to certain matters, loss on extinguishment of debt, amortization of certain purchase price adjustments, severance expense, and certain other items that vary in frequency and impact on ANI’s results of operations. Management uses adjusted non-GAAP diluted earnings per share when analyzing Company performance.
Adjusted non-GAAP diluted earnings per share is defined as adjusted non-GAAP net income, as defined above, divided by the diluted weighted average shares outstanding during the period. Management will continually analyze this metric and may include additional adjustments in the calculation in order to provide further understanding of ANI’s results. Adjusted non-GAAP diluted earnings per share should be considered in addition to, but not in lieu of, diluted earnings (loss) per share reported under GAAP. A reconciliation of adjusted non-GAAP diluted earnings per share to the most directly comparable GAAP financial measure is provided below.
Table 1: Adjusted non-GAAP EBITDA Calculation and US GAAP to Non-GAAP Reconciliation
(unaudited, in thousands)
| Reconciliation of certain adjusted non-GAAP accounts: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net Revenues | Cost of sales (excluding depreciation and amortization) | Selling, general, and administrative expenses | Research and development expenses | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Twelve Months Ended December 31, | Twelve Months Ended December 31, | Twelve Months Ended December 31, | Twelve Months Ended December 31, | Twelve Months Ended December 31, | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2024 | 2023 | 2024 | 2023 | 2024 | 2023 | 2024 | 2023 | 2024 | 2023 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net (Loss) Income | $ | (18,522) | $ | 18,779 | As reported: | $ | 614,376 | $ | 486,816 | $ | 250,210 | $ | 181,513 | $ | 249,636 | $ | 161,697 | $ | 44,581 | $ | 34,286 | |||||||||||||||||||||||||||||||||||||||||||||||
| Add/(Subtract): | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Interest expense, net | 17,602 | 26,940 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other expense, net | 4,033 | 159 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Loss on extinguishment of debt | 7,468 | — | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| (Benefit) provision for income taxes | (3,690) | 1,093 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Depreciation and amortization | 67,731 | 59,791 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Contingent consideration fair value adjustment | (619) | 1,426 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Unrealized gain on investment in equity securities | (6,307) | — | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Intangible asset impairment charge | 7,600 | — | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Gain on sale of building | (5,347) | — | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Restructuring activities | — | 1,132 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Impact of Canada operations(1) | — | 2,697 | Impact of Canada operations(1) | — | (565) | — | (1,884) | — | (1,304) | — | (73) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | 29,344 | 20,652 | Stock-based compensation | — | — | (1,277) | (706) | (26,533) | (19,036) | (1,534) | (910) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| M&A transaction and integration expenses | 20,163 | 1,148 | M&A transaction and integration expenses | — | — | — | — | (20,163) | (1,148) | — | — | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Litigation expenses | 6,395 | — | Litigation expenses | — | — | — | — | (6,395) | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Inventory step-up amortization | 13,599 | — | Inventory step-up amortization | — | — | (13,599) | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Severance | 6,365 | — | Severance | — | — | — | — | (6,365) | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Equity Payout | 10,190 | — | Equity Payout | — | — | — | — | (9,171) | — | (1,019) | — | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Adjusted non-GAAP EBITDA | $ | 156,005 | $ | 133,817 | As adjusted: | $ | 614,376 | $ | 486,251 | $ | 235,334 | $ | 178,923 | $ | 181,009 | $ | 140,209 | $ | 42,028 | $ | 33,303 | |||||||||||||||||||||||||||||||||||||||||||||||
(1) Impact of Canada operations includes CDMO revenues, cost of sales relating to CDMO revenues, all selling, general, and administrative expenses, and all research and development expenses recorded in Canada in the period presented, exclusive of restructuring activities, stock-based compensation, and depreciation and amortization, which are included within their respective line items above. The adjustment of Canada operations represents revenues, cost of sales and expense that will not recur after the completion of the closure of our Canada operations (complete as of March 31, 2023) and the sale of the facility (complete as of March 31, 2024). The adjustment of Canada operations does not adjust for revenues, cost of sales, and expense that will recur at our other manufacturing facilities after the transfer of certain manufacturing activities is complete.
Table 2: Adjusted non-GAAP Net Income and Adjusted non-GAAP Diluted Earnings per Share Reconciliation
(unaudited, in thousands, except per share amounts)
| Twelve Months Ended December 31, | ||||||||||||||
| 2024 | 2023 | |||||||||||||
| Net (Loss) Income Available to Common Shareholders | $ | (20,147) | $ | 17,154 | ||||||||||
| Add/(Subtract): | ||||||||||||||
| Non-cash interest expense | 149 | 3,335 | ||||||||||||
| Depreciation and amortization | 67,731 | 59,791 | ||||||||||||
| Contingent consideration fair value adjustment | (619) | 1,426 | ||||||||||||
| Restructuring activities | — | 1,132 | ||||||||||||
| Gain on sale of building | (5,347) | — | ||||||||||||
Unrealized gain on investment in equity securities | (6,307) | — | ||||||||||||
| Intangible asset impairment charge | 7,600 | — | ||||||||||||
| Impact of Canada operations (1) | — | 2,697 | ||||||||||||
| Stock-based compensation | 29,344 | 20,652 | ||||||||||||
| M&A transaction and integration expenses | 20,163 | 1,148 | ||||||||||||
| Litigation expenses | 6,395 | — | ||||||||||||
| Inventory step-up amortization | 13,599 | — | ||||||||||||
| Severance | 6,365 | — | ||||||||||||
| Equity payout | 10,190 | — | ||||||||||||
| Loss on extinguishment of debt | 7,468 | — | ||||||||||||
| Other expense | 3,869 | — | ||||||||||||
| Less: | ||||||||||||||
| Estimated tax impact of adjustments | (38,154) | (21,643) | ||||||||||||
| Adjusted non-GAAP Net Income Available to Common Shareholders (2) | $ | 102,299 | $ | 85,692 | ||||||||||
| Diluted Weighted-Average | ||||||||||||||
| Shares Outstanding | 19,318 | 18,194 | ||||||||||||
| Adjusted Diluted Weighted-Average | ||||||||||||||
| Shares Outstanding | 19,668 | 18,194 | ||||||||||||
| Adjusted non-GAAP | ||||||||||||||
| Diluted Earnings per Share | $ | 5.20 | $ | 4.71 | ||||||||||
(1) Impact of Canada operations includes CDMO revenues, cost of sales relating to CDMO revenues, all selling, general, and administrative expenses, and all research and development expenses recorded in Canada in the period presented, exclusive of restructuring activities, stock-based compensation, and depreciation and amortization, which are included within their respective line items above. The adjustment of Canada operations represents revenues, cost of sales and expense that will not recur after the completion of the closure of our Canada operations (complete as of March 31, 2023) and the sale of the facility (complete as of March 31, 2024). The adjustment of Canada operations does not adjust for revenues, cost of sales, and expense that will recur at our other manufacturing facilities after the transfer of certain manufacturing activities is complete.
(2) Adjusted non-GAAP Net Income Available to Common Shareholders excludes undistributed earnings to participating securities.
