apvo-defc14a_20210514.htm

 

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

(Amendment No.__)

Filed by the Registrant 

Filed by a Party other than the Registrant 

Check the appropriate box:

Preliminary Proxy Statement

Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

Definitive Proxy Statement

Definitive Additional Materials

Soliciting Material Pursuant to § 240.14a-12

 

Aptevo Therapeutics Inc.

 

(Name of Registrant as Specified In Its Charter)

 

(Name of Person(s) Filing Proxy Statement if Other Than the Registrant)

Copies to:

Sean M. Donahue, Esq.

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, N.W.

Washington, DC 20004-2541

(202) 538-3557

 

Payment of Filing Fee (Check the appropriate box)

No fee required.

Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.

Title of each class of securities to which transaction applies:

 

Aggregate number of securities to which transaction applies:

 

Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined):

 

Proposed maximum aggregate value of transaction:

 

Total fee paid:

 

Fee paid previously with preliminary materials.

Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

Amount Previously Paid:

 

Form, Schedule or Registration Statement No.:

 

Filing Party:

 

Date Filed:

 

 

 


 

 

APTEVO THERAPEUTICS INC.

2401 4th Ave. Suite 1050

Seattle, Washington 98121

NOTICE OF ANNUAL MEETING OF STOCKHOLDERS

To Be Held On June 25, 2021

Dear Aptevo Stockholder:

You are cordially invited to attend the 2021 annual meeting of stockholders (the “Annual Meeting”) of Aptevo Therapeutics Inc., a Delaware corporation (the “Company”). The Annual Meeting will be held on June 25, 2021 at 10 a.m. Pacific Time at 2200 Alaskan Way, Suite 410, Seattle, WA 98121. You will be able to attend the Annual Meeting and vote in person during the Annual Meeting for the following purposes:

1. To elect two nominees to serve on the Company’s Board of Directors to hold office until the 2024 Annual Meeting of Stockholders and until their respective successors are duly elected and qualified.

2. To ratify the selection of Moss Adams LLP as the Company’s independent registered public accounting firm for the year ending December 31, 2021.

3. To approve the Aptevo Therapeutics Inc. 2018 Stock Incentive Plan (as Amended and Restated).

4. To vote upon a non-binding stockholder proposal, requesting that the Aptevo Board of Directors immediately commence a process to sell Aptevo to the highest bidder, if properly presented at the Annual Meeting.

5. To approve an amendment to our Amended and Restated Certificate of Incorporation to declassify our Board of Directors.

6. To conduct any other business properly brought before the Annual Meeting.

These items of business are more fully described in the proxy statement accompanying this Notice (the “Proxy Statement”).

The record date for the Annual Meeting is May 10, 2021. Only stockholders of record at the close of business on that date may vote on the proposals being presented at the Annual Meeting or any adjournment, postponement, rescheduling, or continuation thereof.

As you may be aware, we have received notice from Tang Capital Partners, LP, a Delaware limited partnership (“TCP” and, together with other participants in TCP’s proxy solicitation, “Tang Capital”), which owns approximately 39.6% of the Company’s common stock, expressing the intention of Tang Capital to nominate two director candidates for election to our Board of Directors at the 2021 Annual Meeting and to present a non-binding stockholder proposal requesting that the Aptevo Board of Directors immediately commence a process to sell Aptevo to the highest bidder (the “Tang Stockholder Proposal”). We do not endorse the election of any such Tang Capital candidates as director and we recommend that stockholders vote “AGAINST” the Tang Stockholder Proposal. You may receive proxy solicitation materials from Tang Capital or other persons or entities affiliated with Tang Capital, including an opposition proxy statement and proxy card. Please be advised that we are not responsible for the accuracy of any information provided by or relating to Tang Capital contained in any proxy solicitation materials filed or disseminated by Tang Capital or any other statements that they may otherwise make.

Our Board of Directors does not endorse any of Tang Capital’s director candidates and unanimously recommends that you vote “FOR” each of the director nominees proposed by our Board of Directors and “AGAINST” the Tang Stockholder Proposal using only the BLUE proxy card or by following the instructions to vote your shares over the Internet, by telephone, or by attending the Annual Meeting and voting in person during the Annual Meeting.

 

 


 

The Board of Directors strongly urges you NOT to sign or return any white proxy card or voting instruction form that Tang Capital may send to you, even as a protest vote against Tang Capital or any of Tang Capital’s director candidates. Even a “WITHHOLD” vote with respect to Tang Capital’s director candidates on its white proxy card will cancel any previously submitted BLUE proxy card vote. If you do sign a proxy card sent to you by Tang Capital, however, you have the right to change your vote by using the enclosed BLUE proxy card. Only the latest dated proxy card you vote will be counted.

Important Notice Regarding the Availability of Proxy Materials for the Stockholders’ Meeting to Be Held on June 25, 2021 at 10 a.m. Pacific Time at 2200 Alaskan Way, Suite 410, Seattle, WA 98121.

The Proxy Statement and Annual Report to stockholders

are available at www.proxyvote.com.

By Order of the Board of Directors

/s/ Heather Boussios

Vice President, Legal

Seattle, WA

May  11, 2021

You are cordially invited to attend the Annual Meeting. Whether or not you expect to attend the Annual Meeting, please complete, date, sign and return the enclosed proxy card, or vote over the telephone or the Internet as instructed in these materials, as promptly as possible in order to ensure your representation at the Annual Meeting. Even if you have voted by proxy, you may still vote if you attend the Annual Meeting and vote in person during the Annual Meeting.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

IMPORTANT

 

Your vote at this year’s Annual Meeting is especially important, no matter how many or how few shares you own. Please sign and date the enclosed BLUE proxy card and return it in the enclosed postage-paid envelope promptly.

All stockholders are invited to attend the Annual Meeting. Whether or not you expect to attend the Annual Meeting, we respectfully urge you to sign, date and return the enclosed BLUE proxy card as promptly as possible. Stockholders who execute a proxy card may nevertheless attend the Annual Meeting, revoke their proxy and vote their shares during the Annual Meeting. “Street name” stockholders who wish to vote their shares during the Annual Meeting will need to obtain a legal proxy from the bank, broker or other nominee in whose name their shares are registered. The instructions for voting by Internet or telephone are provided on your proxy card.

THE BOARD OF DIRECTORS STRONGLY URGES YOU NOT TO SIGN OR RETURN ANY WHITE PROXY CARD OR VOTING INSTRUCTION FORM THAT YOU MAY RECEIVE FROM Tang Capital OR ANY PERSON OTHER THAN THE COMPANY EVEN AS A PROTEST VOTE AGAINST Tang Capital OR ANY OF Tang Capital’S NOMINEES. Any white proxy card you sign and return from Tang Capital for any reason could invalidate previous BLUE proxy cards sent by you to support the Company’s Board of Directors.

Only your latest dated, signed proxy card or voting instruction form will be counted. Any proxy may be revoked at any time prior to its exercise at the Annual Meeting as described in this Proxy Statement. 

 

 

IMPORTANT!

PLEASE VOTE THE BLUE PROXY CARD TODAY!

WE URGE YOU NOT TO SIGN ANY WHITE PROXY CARD OR VOTING

INSTRUCTION FORM SENT TO YOU BY TANG CAPITAL

Remember, you can vote your shares by telephone or via the Internet. Please follow the easy instructions on the enclosed BLUE proxy card.

If you have any questions or need assistance in voting

your shares, please contact our proxy solicitor:

OKAPI PARTNERS

1212 Avenue of the Americas, 24th Floor

New York, New York 10036

Banks and Brokers Call: (212) 297-0720

Stockholders and All Others Call Toll Free: (844) 343-2623

Email: info@okapipartners.com

 

 

 


 

 

TABLE OF CONTENTS

 

QUESTIONS AND ANSWERS ABOUT THESE PROXY MATERIALS AND VOTING

 

1

 

 

 

BACKGROUND OF THE SOLICITATION

 

10

 

 

 

PROPOSAL 1  ELECTION OF DIRECTORS

 

13

 

 

 

information regarding the board of directors and corporate governance

 

16

 

 

 

PROPOSAL 2 RATIFICATION OF SELECTIONS OF INDPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

26

 

 

 

PROPOSAL 3 APPROVAL OF THE COMPANY’S 2018 STOCK INCENTIVE PLAN (AS AMENDED AND RESTATED)

 

28

 

 

 

EQUITY COMPENSATION PLAN INFORMATION

 

42

 

 

 

PROPOSAL 4 VOTE UPON THE TANG STOCKHOLDER PROPOSAL

 

43

 

 

 

PROPOSAL 5 APPROVAL OF AMENDMENTS TO OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO DECLASSIFY OUR BOARD OF DIRECTORS

 

45

 

 

 

Security Ownership of  Certain Beneficial Owners and Management

 

48

 

 

 

Executive Officers

 

50

 

 

 

Executive Compensation

 

51

 

 

 

Transactions With Related Persons

 

57

 

 

 

Householding of Proxy Materials

 

58

 

 

 

Other Matters

 

59

 

 

 

APPENDIX A

 

A-1

 

 

 

APPENDIX B

 

B-1

 

 

 

APPENDIX C

 

C-1

 

 

 

 

 

 

 

 

 

 

 

 


 

 

 

APTEVO THERAPEUTICS INC.

2401 4th Ave. Suite 1050

Seattle, Washington 98121

 

PROXY STATEMENT

FOR THE 2021 ANNUAL MEETING OF STOCKHOLDERS

To be held on June 25, 2021

QUESTIONS AND ANSWERS ABOUT THESE PROXY MATERIALS AND VOTING

Why am I receiving these materials?

We have sent you these proxy materials because the Board of Directors (the “Board”) of Aptevo Therapeutics, Inc. (sometimes referred to as the “Company,” “Aptevo,” “we,” “us” or “our”) is soliciting your proxy to vote at the 2021 Annual Meeting of Stockholders (the “Annual Meeting”), including at any adjournments, postponements, reschedulings, or continuations thereof. You are invited to attend the Annual Meeting to vote on the proposals described in this Proxy Statement. However, you do not need to attend the Annual Meeting to vote your shares. Instead, you may simply complete, sign and return the enclosed BLUE proxy card, or follow the instructions below to submit your proxy over the telephone or through the Internet.

We intend to mail these proxy materials on or about May 17, 2021 to all stockholders of record entitled to vote on the proposals being presented at the Annual Meeting.

How do I attend the Annual Meeting?

The meeting will be held on June 25, 2021 at 10 a.m. Pacific Time at 2200 Alaskan Way, Suite 410, Seattle, WA 98121. For questions regarding the Annual Meeting, please call our proxy solicitor, Okapi Partners toll free at (844) 343-2623. Have your proxy card or voting instruction form available. Information on how to vote by attending the Annual Meeting is discussed below.

Who can vote at the Annual Meeting?

Only stockholders of record at the close of business on May 10, 2021 (the “Record Date”) will be entitled to vote on the proposals being presented at the Annual Meeting. On the Record Date, there were 4,449,535 shares of common stock outstanding and entitled to vote.

Stockholder of Record:  Shares Registered in Your Name

If on May 10, 2021 your shares were registered directly in your name with the Company’s transfer agent, Broadridge Financial Solutions, Inc., then you are a stockholder of record. As a stockholder of record, you may vote by attending the Annual Meeting and voting during the Annual Meeting or vote by proxy. Whether or not you plan to attend the Annual Meeting, we urge you to vote by proxy to ensure your vote is counted.

Beneficial Owner:  Shares Registered in the Name of a Broker or Other Nominee

If on May 10, 2021 your shares were held, not in your name, but rather in an account at a brokerage firm, bank, dealer, other similar organization, or other nominee, then you are the beneficial owner of shares held in “street name” and these proxy materials are being forwarded to you by that organization. The organization holding your account is considered to be the stockholder of record for purposes of voting on the proposals being presented at the Annual Meeting. As a beneficial owner, you have the right to direct your broker or other agent regarding how to vote the shares in your account. You are also invited to attend the Annual Meeting.

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What am I voting on?

There are five matters scheduled for a vote:

 

Proposal 1: Election of two director nominees to serve on the Board until the 2024 annual meeting of stockholders (the “Director Election Proposal”);

 

Proposal 2: Ratification of the selection of Moss Adams LLP as the Company’s independent registered public accounting firm for the year ending December 31, 2021 (the “Auditor Ratification Proposal”);

 

Proposal 3: Approval of the Aptevo Therapeutics Inc. 2018 Stock Incentive Plan (as Amended and Restated) (the “Stock Incentive Plan Proposal”);

 

Proposal 4: Vote upon a non-binding stockholder proposal, requesting that the Aptevo Board of Directors immediately commence a process to sell Aptevo to the highest bidder, if properly presented at the Annual Meeting (the “Tang Stockholder Proposal”); and

 

Proposal 5: Approval of an amendment to our Amended and Restated Certificate of Incorporation to declassify our Board (the “Declassification Proposal”).

What if another matter is properly brought before the meeting?

The Board knows of no other matters that will be presented for consideration at the Annual Meeting. If any other matters are properly brought before the meeting, it is the intention of the persons named in the accompanying proxy card to vote on those matters in accordance with their best judgment, subject to compliance with Rule 14a-4(c) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

Will there be a proxy contest at the Annual Meeting?

We have received notice from Tang Capital Partners, LP, a Delaware limited partnership (“TCP” and, together with other participants in TCP’s proxy solicitation, “Tang Capital”), which owns approximately 39.6% of the Company’s common stock, expressing the intention of Tang Capital to nominate two director candidates for election to our Board at the Annual Meeting and to present a non-binding stockholder proposal requesting that the Aptevo Board of Directors immediately commence a process to sell Aptevo to the highest bidder. We do not endorse the election of any such Tang Capital candidates as director and we recommend that stockholders vote “AGAINST” the Tang Stockholder Proposal. You may receive proxy solicitation materials from Tang Capital or other persons or entities affiliated with Tang Capital, including an opposition proxy statement and proxy card. Please be advised that we are not responsible for the accuracy of any information provided by or relating to Tang Capital contained in any proxy solicitation materials filed or disseminated by Tang Capital or any other statements that they may otherwise make.

You may receive multiple mailings from Tang Capital. You will also likely receive multiple mailings from the Company prior to the date of the Annual Meeting, so that our stockholders have our latest proxy information and materials to vote. Proxy cards provided by the Company will be BLUE. Please see “What should I do if I receive a proxy card from Tang Capital?” and “What does it mean if I receive more than one BLUE proxy card or voting instruction form?” below for more information.

Our Board does not endorse any of Tang Capital’s director candidates and unanimously recommends that you vote “FOR” each of the director nominees proposed by the Board and “AGAINST” the Tang Stockholder Proposal using the BLUE proxy card or by following the instructions for voting over the Internet, by telephone, or in person at the Annual Meeting. Our Board strongly urges you NOT to sign or return any white proxy card sent to you by Tang Capital. If you have previously submitted a white proxy card sent to you by Tang Capital, you can revoke that proxy and vote for our Board’s nominees and on the other matters to be voted on at the Annual Meeting by casting a later-dated vote using the enclosed BLUE proxy card or voting over the Internet, by telephone, or in person at the Annual Meeting. Only the latest dated, valid proxy you submit will be counted.

What should I do if I receive a proxy card from Tang Capital?

Our Board does not endorse any of Tang Capital’s director candidates and strongly urges you NOT to sign or return any proxy card or voting instruction form that you may receive from Tang Capital or any person other than the Company, even as a protest vote against Tang Capital or any of Tang Capital’s director candidates. Voting to “WITHHOLD” with respect to any of Tang Capital’s director candidates on its proxy card is not the same as voting

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for our Board’s nominees because a vote to “WITHHOLD” with respect to any of Tang Capital’s director candidates on its proxy card will revoke any proxy you previously submitted.

How do I vote?

For the Director Election Proposal, you may either vote “For” each of the nominees to the Board or you may “Withhold” your vote for any nominee you specify. For the Auditor Ratification Proposal, you may vote “For” or “Against” or abstain from voting. For the Stock Incentive Plan Proposal, you may either vote “For” or “Against” or abstain from voting. For the vote upon the Tang Stockholder Proposal, you may vote “For” or “Against” or abstain from voting. For the Declassification Proposal, you may either vote “For” or “Against” or abstain from voting.

The Board recommends that you vote:

 

For” the election of each of the director nominees named in the Director Election Proposal;

 

For” the Auditor Ratification Proposal;

 

For” the Stock Incentive Plan Proposal;

 

Against” the Tang Stockholder Proposal; and

 

For” the Declassification Proposal.

The procedures for voting are as follows:

Stockholder of Record: Shares Registered in Your Name

If you are a stockholder of record, you may vote by attending the Annual Meeting and voting in person during the Annual Meeting, vote by proxy over the telephone, vote by proxy through the Internet or vote by proxy using the enclosed BLUE proxy card. Whether or not you plan to attend the Annual Meeting, we urge you to vote by proxy to ensure your vote is counted. You may still attend the Annual Meeting and vote in person during the Annual Meeting even if you have already voted by proxy.

 

To vote using the enclosed BLUE proxy card, simply complete, sign and date the enclosed BLUE proxy card and return it promptly in the envelope provided. If you return your signed BLUE proxy card to us before the Annual Meeting, we will vote your shares as you direct.

 

To vote over the telephone, dial toll-free (888) 391 – 6465 using a touch-tone phone and follow the recorded instructions. You will be asked to provide the company number and control number from the enclosed BLUE proxy card. Your telephone vote must be received by 11:59 p.m. EDT on June 24, 2021 to be counted.

 

To vote through the Internet, go to http://www.proxyvote.com to complete an electronic proxy card. You will be asked to provide the company number and control number from the enclosed BLUE proxy card. Your internet vote must be received by 11:59 p.m. EDT on June 24, 2021 to be counted.

 

If you attend the Annual Meeting, you can also vote in person during the Annual Meeting.

Beneficial Owner:  Shares Registered in the Name of Broker or Bank

If you are a beneficial owner of shares registered in the name of your broker, bank, or other nominee, these proxy materials along with a voting instruction form are being provided by that organization rather than the Company. Simply follow the instructions and mail the voting instruction form or vote by internet or telephone to ensure that your vote is counted. To vote by attending the Annual Meeting, you must obtain a valid proxy from your broker, bank or other nominee. Follow the instructions from your broker, bank or other nominee included with these proxy materials, or contact your broker, bank or other nominee to request a proxy form.

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How many votes do I have?

On each matter to be voted upon, you have one vote for each share of common stock you own as of May 10, 2021.

What happens if I do not vote?

Stockholder of Record: Shares Registered in Your Name

If you are a stockholder of record and do not vote by completing your proxy card, or by telephone, through the internet, or by attending the Annual Meeting and voting in person during the Annual Meeting, your shares will not be voted.

Beneficial Owner:  Shares Registered in the Name of Broker or Other Nominee

If you are a beneficial owner and do not instruct your broker, bank, or other nominee how to vote your shares, the question of whether your broker or nominee will still be able to vote your shares depends on whether the particular proposal is a “routine” matter. Brokers and nominees can use their discretion to vote “uninstructed” shares with respect to matters that are considered to be “routine,” but not with respect to “non-routine” matters. Because the Annual Meeting is expected to be the subject of a contested solicitation all proposals at the Annual Meeting are considered “non-routine” and therefore your bank, broker or other nominee does not have the authority to vote on a proposal at the Annual Meeting if you do not provide voting instructions with respect to such proposal.

What if I return a proxy card or otherwise vote but do not make specific choices?

If you return a signed and dated BLUE proxy card or otherwise vote without marking voting selections, your shares will be voted, as applicable:

 

“For” the election of each of the director nominees named in the Director Election Proposal;

 

For” the Auditor Ratification Proposal;

 

“For” the Stock Incentive Plan Proposal;

 

“Against” the Tang Stockholder Proposal; and

 

“For” the Declassification Proposal.

If any other matter is properly presented at the Annual Meeting and any adjournments or postponements thereof, your proxyholder (one of the individuals named on the enclosed BLUE proxy card) will vote your shares using his or her best judgment.

Who is paying for this proxy solicitation?

The entire cost of soliciting proxies on behalf of the Board, including the costs of preparing, assembling, printing and mailing this Proxy Statement, the BLUE proxy card and any additional soliciting materials furnished to stockholders by or on behalf of the Company, will be borne by the Company. Copies of solicitation material will be furnished to banks, brokerage houses, dealers, banks, voting trustees, their respective nominees and other agents holding shares in their names, which are beneficially owned by others, so that they may forward such solicitation material, together with our 2020 Annual Report, which includes our Form 10-K for the fiscal year ended December 31, 2020, to beneficial owners. In addition, if asked, we will reimburse these persons for their reasonable expenses in forwarding these materials to the beneficial owners.

Due to the possibility of a proxy contest, we have engaged the proxy solicitation firm of Okapi Partners to solicit proxies from stockholders in connection with the Annual Meeting. Okapi Partners expects that approximately 25 of its employees will assist in the solicitation of proxies. We will pay Okapi Partners, Inc. a fee not to exceed $120,000 plus costs and expenses. In addition, Okapi Partners and certain related persons will be indemnified against certain liabilities arising out of or in connection with the engagement.

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The Company estimates that its additional out-of-pocket expenses beyond those normally associated with soliciting proxies for the Annual Meeting as a result of the potential proxy contest will be $525,000 in the aggregate, of which approximately $275,000 has been incurred to date. Such additional solicitation costs are expected to include the fees incurred to retain Okapi Partners as the Company’s proxy solicitor, as discussed above, fees of outside legal and public relation advisors to advise the Company in connection with a possible contested solicitation of proxies, increased mailing costs, such as the costs of additional mailings of solicitation materials to stockholders, including printing costs, mailing costs and the reimbursement of reasonable expenses of banks, brokerage houses and other agents incurred in forwarding solicitation materials to beneficial owners, as described above, and the costs of retaining an independent inspector of election.

What does it mean if I receive more than one BLUE proxy card or voting instruction form?

You may receive more than one set of these proxy materials, including multiple copies of this Proxy Statement and multiple BLUE proxy cards or voting instruction forms. For example, if you hold your shares in more than one brokerage account, you may receive a separate voting instruction form for each brokerage account in which you hold shares. If you are a stockholder of record and your shares are registered in more than one name, you will receive more than one BLUE proxy card. To ensure that all of your shares are voted, please vote using each BLUE proxy card or voting instruction form you receive or, if you vote by Internet or telephone, you will need to enter each of your control numbers. Remember, you may vote by telephone, Internet or by signing, dating and returning the BLUE proxy card in the postage-paid envelope provided, or by voting in person at the Annual Meeting.

As previously noted, Tang Capital has provided us with a notice indicating that it intends to nominate two director candidates for election as directors at the Annual Meeting and to present a non-binding stockholder proposal requesting that the Aptevo Board of Directors immediately commence a process to sell Aptevo to the highest bidder. As a result, you may receive proxy cards from both the Company and Tang Capital. To ensure that stockholders have the Company’s latest proxy information and materials to vote, the Board may conduct multiple mailings prior to the date of the Annual Meeting, each of which will include a BLUE proxy card. The Board encourages you to vote each BLUE proxy card you receive.

THE BOARD STRONGLY URGES YOU TO REVOKE ANY PROXY CARD YOU MAY HAVE RETURNED WHICH YOU RECEIVED FROM Tang Capital. Even a “WITHHOLD” vote with respect to Tang Capital’s director candidates on their proxy card will cancel any previously submitted BLUE proxy card.

THE BOARD STRONGLY URGES YOU NOT TO SIGN OR RETURN ANY WHITE PROXY CARD OR VOTING INSTRUCTION FORM THAT YOU MAY RECEIVE FROM Tang Capital, EVEN AS A PROTEST VOTE AGAINST Tang Capital OR Tang Capital’S DIRECTOR CANDIDATES.

Can I change my vote or revoke my proxy?

Stockholder of Record: Shares Registered in Your Name

Yes.  You can revoke your proxy at any time before the final vote at the Annual Meeting.  If you are the record holder of your shares, you may revoke your proxy in any one of the following ways:

 

You may submit another properly completed proxy card with a later date.

 

You may grant a subsequent proxy by telephone or through the internet.

 

You may send a timely written notice that you are revoking your proxy to Aptevo’s Vice President, Legal, at 2401 4th Ave. Suite 1050, Seattle, Washington 98121.

 

You may attend the Annual Meeting and vote in person during the Annual Meeting.  Simply attending the Annual Meeting will not, by itself, revoke your proxy.

Beneficial Owner: Shares Registered in the Name of Broker or Bank

If your shares are held by your broker or bank as a nominee or agent, you should follow the instructions provided by your broker or bank.

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If you have previously signed a proxy card sent to you by Tang Capital, you may change your vote by marking, signing, dating and returning the BLUE proxy card or by voting by telephone, via the Internet or by attending the Annual Meeting and voting in person during the Annual Meeting. Only the latest dated, valid proxy that you submit will be counted. Submitting a proxy card sent to you by Tang Capital will revoke votes you have previously made via the Company’s BLUE proxy card.

When are stockholder proposals and director nominations due for next year’s annual meeting?

Pursuant to Rule 14a-8 of the Exchange Act, to be considered for inclusion in next year’s proxy materials, your proposal must be submitted in writing by January 14, 2022, to Aptevo’s Corporate Secretary at 2401 4th Ave. Suite 1050, Seattle, Washington 98121. Such a proposal must satisfy the rules and regulations of the Securities and Exchange Commission (the “SEC”). In order to avoid controversy, stockholders should submit proposals by means (including electronic) that permit them to prove the date of delivery.

In addition, our Amended and Restated Bylaws require that we be given advance written notice for nominations for election to our Board and of other business that stockholders wish to present for consideration at an annual meeting of stockholders (other than those proposals of business intended to be included in our proxy statement in accordance with Rule 14a-8 under the Exchange Act). The Amended and Restated Bylaws require that a stockholder who intends to present a proposal at an annual meeting of stockholders submit the proposal to the Corporate Secretary not less than 90 and nor more than 120 days before the first anniversary of the date of the previous year’s annual meeting. Therefore, to be eligible for consideration at the 2022 Annual Meeting of Stockholders, such a proposal and any nominations for director must be received by the Corporate Secretary between February 25, 2022 and March 27, 2022; provided, however, that in the event that the date of the annual meeting is advanced by more than 20 days, or delayed by more than 60 days, from the first anniversary of the preceding year’s annual meeting, a stockholder’s notice must be so received not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of (A) the 90th day prior to such annual meeting and (B) the tenth day following the day on which notice of the date of such annual meeting was mailed or public disclosure of the date of such annual meeting was made, whichever first occurs. This advance notice period is intended to allow stockholders an opportunity to consider all business and nominees expected to be considered at the meeting. Any proposals received after the applicable deadline may be considered untimely and may be excluded.

If a stockholder who wishes to present a proposal before the 2022 Annual Meeting outside of Rule 14a-8 of the Exchange Act fails to notify us by the required date, the proxies that our Board solicits for the 2022 Annual Meeting will confer discretionary authority on the person named in the proxy to vote on the stockholder’s proposal if it is properly brought before that meeting subject to compliance with Rule 14a-4(c) of the Exchange Act. If a stockholder makes timely notification, the proxies may still confer discretionary authority to the person named in the proxy under circumstances consistent with the SEC proxy rules, including Rule 14a-4(c) of the Exchange Act.

What are “broker non-votes”?

If you are a beneficial owner whose shares of record are held by a broker, you may instruct your broker how to vote your shares. If you do not give instructions to your broker, the broker will determine if it has the discretionary authority to vote on the particular matter. Under the rules of the New York Stock Exchange (“NYSE”), which are also applicable to Nasdaq-listed companies, brokers have the discretion to vote on routine matters, but do not have discretion to vote on non-routine matters.

When a stockholders meeting is the subject of a contested solicitation, under applicable rules of the NYSE, brokers do not have discretion to vote shares that they hold in their name on behalf of the beneficial holders with respect to any proposal. Because Tang Capital has submitted a notice of its intent to nominate directors, the Annual Meeting is expected to be the subject of a contested solicitation and therefore if you hold your shares in the name of your bank, broker or other nominee (sometimes called “street name” or “nominee name”) and you do not provide your bank, broker or other nominee with specific instructions regarding how to vote on a proposal to be voted on at the Annual Meeting, your bank, broker or other nominee will not be permitted to vote your shares on that proposal. In this regard, all proposals at the Annual Meeting are considered “non-routine” and therefore your bank, broker or other nominee does not have the authority to vote on a proposal at the Annual Meeting if you do not provide voting instructions with respect to such proposal.

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A broker non-vote occurs when a broker has not received voting instructions from the beneficial owner of the shares and the broker cannot vote the shares because the matter is not considered a routine matter under NYSE rules. Broker non-votes, if any, will be counted for purposes of calculating whether a quorum is present at the meeting, but will not be counted for purposes of determining the number of votes cast with respect to a particular proposal.

Your vote is important and we strongly encourage you to vote your shares by following the instructions provided on the BLUE voting instruction form you receive from your broker. Please return your BLUE voting instruction form to your broker and contact the person responsible for your account to ensure that a proxy is voted on your behalf. Because the Annual Meeting is expected to be the subject of a contested solicitation, if you do not provide timely instructions, your broker does not have the authority to vote on any proposals at the Annual Meeting.

How many votes are needed to approve each proposal?

For the Director Election Proposal, the two director nominees receiving the most “For” votes from the holders of shares present at the meeting or represented by proxy and entitled to vote on the election of directors will be elected. Votes “Withheld” will have no effect on the Director Election Proposal. Broker non-votes, if any, will also have no effect.

To be approved, the Auditor Ratification Proposal must receive “For” votes from a majority of the votes cast by the holders of all of the shares of common stock present or represented by proxy at the meeting and voting on such proposal. Abstentions and broker non-votes will have no effect on this proposal.

To be approved, the Stock Incentive Plan Proposal must receive “For” votes from a majority of the votes cast by the holders of all of the shares of common stock present or represented by proxy at the meeting and voting on such proposal. Abstentions and broker non-votes, if any, will have no effect on this proposal.

To be approved, the Tang Stockholder Proposal, if properly presented at the Annual Meeting, must receive “For” votes from a majority of the votes cast by the holders of all of the shares of common stock present or represented by proxy at the meeting and voting on such proposal. Abstentions and broker non-votes, if any, will have no effect on this proposal. Given the existing proxy contest and the Tang Unsolicited Indication of Interest (as defined below), the Board, in considering the outcome of the stockholder vote on the Tang Stockholder Proposal, will also consider whether the Tang Stockholder Proposal was approved by a majority of the votes cast by the holders of all of the shares of common stock present or represented by proxy at the meeting and voting on such proposal, other than those cast by Tang Capital and Aptevo’s Board and management.

To be approved, the Declassification Proposal must receive “For” votes from the holders of common stock representing at least seventy-five (75%) of the votes which all the stockholders would be entitled to cast in any annual election of directors or class of directors. Abstentions and broker non-votes will have the effect of a vote “against” this proposal.

What is the quorum requirement and how will votes be counted?

A quorum of stockholders is necessary to hold a valid meeting.  A quorum will be present if stockholders holding at least a majority of the outstanding shares entitled to vote are present at the Annual Meeting or represented by proxy.  On the record date, there were 4,449,535 shares outstanding and entitled to vote. Thus, the holders of 2,224,768 shares must be present or represented by proxy at the Annual Meeting to have a quorum.

Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee) or if you vote by attending the Annual Meeting and voting in person during the Annual Meeting. Abstentions and broker non-votes, if any, will be counted towards the quorum requirement. If there is no quorum, the chairman of the meeting or the holders of a majority of shares present at the Annual Meeting or represented by proxy and entitled to vote may adjourn the Annual Meeting to another date.

An inspector of elections appointed for the meeting will determine whether a quorum is present and will tabulate votes cast by proxy or in person at the meeting. If a quorum is not present, we expect to adjourn the Annual Meeting until we obtain a quorum.

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How can I find out the results of the voting at the Annual Meeting?

Preliminary voting results will be announced at the Annual Meeting.  In addition, final voting results will be published in a Current Report on Form 8-K that we expect to file within four business days after the Annual Meeting.  If final voting results are not available to us in time to file a Current Report on Form 8-K within four business days after the Annual Meeting, we intend to file a current report on Form 8‑K to publish preliminary results and, within four business days after the final results are known to us, file an additional current report on Form 8-K to publish the final results.

What proxy materials are available on the internet?

The Proxy Statement and the Annual Report on Form 10-K for the fiscal year ended December 31, 2020 are available at www.proxyvote.com.

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IMPORTANT

 

Tang Capital may send you solicitation materials in an effort to solicit your vote to elect up to two of Tang Capital’s proposed director candidates to the Board. THE BOARD STRONGLY URGES YOU NOT TO SIGN OR RETURN ANY PROXY CARD OR VOTING INSTRUCTION FORM THAT YOU MAY RECEIVE FROM Tang Capital OR ANY PERSON OTHER THAN THE COMPANY, EVEN AS A PROTEST VOTE AGAINST Tang Capital OR Tang Capital’S DIRECTOR CANDIDATES. Any proxy you sign from Tang Capital for any reason could invalidate previous BLUE proxy cards sent by you to support the Board.

Your vote at this year’s Annual Meeting is especially important, no matter how many or how few shares you own. Please sign and date the enclosed BLUE proxy card and return it in the enclosed postage-paid envelope promptly.

Only your latest dated, signed proxy card or voting instruction form will be counted. Any proxy may be revoked at any time prior to its exercise at the Annual Meeting as described in this Proxy Statement.

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Background of the Solicitation

The following is a chronology of the material contacts and events in our relationship with Tang Capital leading up to the filing of this Proxy Statement:

 

On November 3, 2020, TCP began accumulating shares of the Company’s common stock with its acquisition of 320,000 shares of the Company’s common stock in the open market. On the same day, Kevin Tang requested a meeting with the Company.

 

On November 4, 2020, Tang Capital purchased an additional 640,000 shares of the Company’s common stock. On the same day, the Company’s director of investor relations confirmed the scheduling of an introductory telephone call with Mr. Tang.

 

On November 5, 2020, Tang Capital purchased an additional 625,723 shares of the Company’s common stock. On the same day, the Company’s director of investor relations held a telephone conference with Mr. Tang and Thomas Wei of Tang Capital during which she discussed with them various matters relating to the Company.

 

On November 6, 2020, Tang Capital purchased an additional 174,277 shares of the Company’s common stock. At approximately 5:00 pm on the same day, Mr. Tang, Tang Capital and Tang Capital Management, LLC jointly filed a Schedule 13D (the “Schedule 13D”) to report their beneficial ownership of 1,760,000 shares of the common stock of the Company. That evening, Mr. Tang sent an email to Mr. White and the Company’s director of investor relations requesting a call with the Company’s management.

 

On November 8, 2020, given the significant and rapid accumulation of shares by TCP, the Company adopted a limited-duration stockholder rights plan with a 10% ownership threshold and an expiration date of November 8, 2021 (the “Rights Plan”).

 

On November 9, 2020, Mr. Joe Battaglia and Messrs. Tang and Wei from Tang Capital had an introductory call with the Company’s management team consisting of Mr. White, Jeff Lamothe, the Company’s Chief Financial Officer, and Jane Gross, Ph.D., the Company’s Chief Scientific Officer, and the Company’s director of investor relations.

 

On November 11, 2020, Messrs. White and Lamothe and the Company’s director of investor relations had a second call with Mr. Tang in which Mr. Tang indicated his desire to enter into a confidentiality agreement to discuss the Company’s strategic plans. Mr. White suggested that he would discuss the proposal with the Board.

 

On November 16, 2020, a representative of Piper Sandler & Co. (“Piper Sandler”), one of the Company’s financial advisors, contacted Mr. Tang on behalf of the Company pursuant to Piper Sandler’s customary wall-cross procedures in connection with a potential capital markets transaction (the “Potential Offering”).

 

On November 17, 2020, Messrs. Tang and Wei met with Messrs. White and Lamothe, Dr. Gross, Scott Stromatt, MD., and the Company’s director of investor relations, together with representatives from Piper Sandler, for a presentation about the Company and its therapeutic candidates and to discuss the Potential Offering.

 

On November 18, 2020, Mr. Tang sent an unsolicited, non-binding indication of interest in the form of a letter, on behalf of TCP, proposing to acquire all of the outstanding shares of the Company’s common stock not already beneficially owned by TCP for $50.00 per share in cash, subject to confirmatory due diligence conducted under a customary non-disclosure agreement (the “Tang Unsolicited Indication of Interest”). On the same day, Mr. Tang filed Amendment No. 1 to the Schedule 13D to reflect the same.

 

On November 19, 2020, the Company issued a press release confirming receipt of the Tang Unsolicited Indication of Interest. Also, on November 19, 2020, the Board decided not to proceed with the Potential Offering.

10


 

 

On November 23, 2020, Mr. Tang, Mr. White, and Fuad El-Hibri, the Chairman of the Board of Directors, had a call to discuss the Tang Unsolicited Indication of Interest and the potential of entering into a customary non-disclosure agreement.

 

On December 2, 2020, Messrs. El-Hibri and White again spoke with Mr. Tang, and Mr. Tang expressed interest in entering into a customary non-disclosure agreement to review the Company’s royalty streams and the arrangements related thereto.

 

On December 4, 2020, a representative of Piper Sandler spoke with Mr. Tang and delivered to Mr. Tang a form of confidentiality agreement for the purposes of discussing the Company’s royalty streams and the arrangements related thereto.

 

On December 8, 2020, a representative of Piper Sandler sent a follow-up email to Mr. Tang to confirm that he received the form of confidentiality agreement that was delivered on December 4, 2020. The Company never received a revised draft of the confidentiality agreement back from Mr. Tang and no such confidentiality agreement was ever executed.

 

On January 14, 2021, Messrs. El-Hibri and White spoke with Mr. Tang to discuss the Board’s consideration of the Tang Unsolicited Indication of Interest and confirmed to Mr. Tang that the Board authorized management to enter into a customary confidentiality agreement with Tang Capital and, thereafter, to provide diligence materials to Mr. Tang.

 

On January 16, 2021, Heather Boussios, the Company’s acting general counsel, delivered a confidentiality agreement to Mr. Tang in connection with the Tang Unsolicited Indication of Interest (the “CDA”).

 

On January 25, 2021, in response to comments on the CDA that Ms. Boussios received from Mr. Tang on January 22, 2021, Ms. Boussios delivered a revised draft of the CDA to Mr. Tang and his counsel.

 

On January 26, 2021, Messrs. White and Lamothe had a telephone conference with Mr. Tang during which Mr. Tang stated, among other things, that he would not agree to any “standstill” obligations in the CDA.

 

On January 29, 2021, Messrs. White and Lamothe had a call with Mr. Tang in an attempt to continue to negotiate mutually acceptable terms to the CDA.

 

On January 30, 2021, Mr. White sent an email to Mr. Tang requesting that he provide a revised draft of the CDA for the Company’s consideration.

 

On February 3, 2021, Mr. Tang sent a revised draft of the CDA to Mr. White, which draft was identical to the proposed draft that Mr. Tang circulated on January 22, 2021.

 

On February 9, 2021, Mr. Tang sent a notice of nomination and stockholder proposal (the “Notice”) by email to Mr. White and copied Ms. Boussios and Mr. Lamothe. The Notice provided that Tang Capital intended to nominate two candidates to stand for election to the Board of Directors at the Annual Meeting and that it intended to submit an advisory stockholder proposal requesting that “the Aptevo Board of Directors immediately commence a process to sell Aptevo to the highest bidder.” Tang Capital filed the Notice as soliciting material pursuant to Rule 14a-12 of the Exchange Act and as an exhibit to Amendment No. 2 to the Schedule 13D, which was filed on the same day.

 

On February 9, 2021, the Company issued a press release confirming receipt of the Notice.

 

On March 31, 2021, the Company issued a press release in which it announced its financial results for the period ended December 31, 2020 and provided a business update. The press release included a response to the Proposed Offer.

 

On April 28, 2021, the Company filed a preliminary proxy statement with the SEC.

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On May 3, 2021, Messrs. White and Lamothe had a call with Mr. Tang during which Mr. Tang proposed a settlement framework that would, among other things, avoid a proxy contest at the Annual Meeting.  

 

On May 6, 2021, Messrs. White and Lamothe had another call with Mr. Tang in which they proposed an alternative settlement framework that would, among other things, avoid a proxy contest at the Annual Meeting.  

 

On May 9, 2021, Mr. White sent an email to Mr. Tang, indicating, among other things, that the Company would be holding the Annual Meeting in late June, that it expected to file its definitive proxy statement for the Annual Meeting in the upcoming week, and that it was still open to discussing a settlement framework with Mr. Tang.  

 

On May 11, 2021, the Company filed this definitive proxy statement with the SEC.

OUR BOARD STRONGLY URGES YOU NOT TO SIGN OR RETURN ANY PROXY CARD OR VOTING INSTRUCTION FORM THAT YOU MAY RECEIVE FROM Tang Capital, EVEN AS A PROTEST VOTE AGAINST Tang Capital OR ANY OF Tang Capital’S DIRECTOR CANDIDATES, AS DOING SO WILL INVALIDATE ANY PRIOR VOTE YOU SUBMITTED ON THE BLUE PROXY CARD IN SUPPORT OF THE COMPANY’S DIRECTOR NOMINEES.

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Proposal 1

Election Of Directors

Aptevo’s Board is divided into three classes. Each class consists, as nearly as possible, of one-third of the total number of directors, and each class has a three-year term.

The Board presently has seven members. There are two directors in the class whose term of office expires in 2021. Each of the nominees listed below is currently a director of the Company. If elected at the Annual Meeting, each of these director nominees would serve until the 2024 annual meeting of stockholders and until his successor has been duly elected and qualified, or, if sooner, until the director’s death, resignation or removal. If stockholders approve the Declassification Proposal, then the terms of all incumbent directors will immediately expire at the 2022 annual meeting of stockholders. Stockholders would then be able to vote for nominees to the declassified Board at the 2022 annual meeting, and each elected director will hold office for a one-year term expiring at the 2023 annual meeting of stockholders.

Although we do not have a formal policy regarding the director attendance at annual meetings, it is the Company’s practice that directors and director nominees named in Aptevo’s proxy statement attend our annual stockholder meetings. All of our directors virtually attended our 2020 Annual Meeting of Stockholders.

Directors are elected by a plurality of the votes of the holders of shares present at the Annual Meeting or represented by proxy and entitled to vote on the election of directors. Accordingly, the two nominees receiving the highest number of affirmative votes will be elected.

We have received notice from Tang Capital, which owns approximately 39.6% of the Company’s common stock, expressing the intention of Tang Capital to nominate two director candidates for election to our Board at the Annual Meeting. We do not endorse the election of any such Tang Capital candidates as director.

Our Board does not endorse any of Tang Capital nominees and urges you NOT to sign or return any white proxy card that may be sent to you by Tang Capital. Voting to “WITHHOLD” with respect to any of Tang Capital’s director candidates on its proxy card is not the same as voting for the Company’s director nominees because a vote to “WITHHOLD” with respect to any of Tang Capital’s nominees on its proxy card will revoke any BLUE proxy you previously submitted. If you have already voted using Tang Capital’s white proxy card, you have every right to change your vote by using the BLUE proxy card or by voting over the Internet, by telephone, or by attending the Annual Meeting and voting in person during the Annual Meeting. Only the latest dated, valid proxy that you submit will be counted—any proxy may be revoked at any time prior to its exercise at the Annual Meeting by following the instructions under “Can I change my vote or revoke my proxy?” If you have any questions or require any assistance with voting your shares, please contact our proxy solicitor, Okapi Partners toll free at (844) 343-2623.

The enclosed BLUE proxy card will not be voted for more than two candidates or for anyone other than the Board’s nominees or designated substitutes. Unless otherwise instructed, the persons named in the enclosed proxy will vote to elect each of Daniel J. Abdun-Nabi and Grady Grant III to the Board, unless, by marking the appropriate space on the BLUE proxy card, the stockholder instructs that he, she or it withholds authority from the proxy holder to vote with respect to a specified candidate(s).

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The following is a brief biography of each director nominee and each director whose term will continue after the Annual Meeting.

Name

 

Age

 

Principal Occupation

Fuad El-Hibri

 

63

 

Executive Chairman of Emergent BioSolutions Inc.

Marvin L. White

 

59

 

President and Chief Executive Officer of Aptevo

Daniel J. Abdun-Nabi

 

66

 

Former President and Chief Executive Officer of Emergent BioSolutions Inc.

Grady Grant, III

 

65

 

Interim Chief Commercial Officer of  New Vision Pharmaceuticals

Zsolt Harsanyi, Ph.D.

 

77

 

Former Chief Executive Officer of Exponential Biotherapies Inc.

Barbara Lopez Kunz

 

63

 

President and Global Chief Executive of the Drug Information Association

John E. Niederhuber, M.D.

 

82

 

Former Executive Vice President of the Inova Health System

 

Nominees for Election for a Three-year Term Expiring at the 2024 Annual Meeting

Daniel J. Abdun-Nabi has served as a member of our Board since August 2016. Mr. Abdun-Nabi served as the President and Chief Executive Officer of Emergent BioSolutions Inc. (“Emergent”) from 2012 to 2019 and as a director of Emergent from 2009 to 2019. Prior to that, Mr. Abdun-Nabi served in other various leadership positions at Emergent, including President and Chief Operating Officer from 2007 to 2012, Corporate Secretary from 2004 to 2008, Senior Vice President, Corporate Affairs and General Counsel from 2004 to 2007, and Vice President and General Counsel from May 2004 to December 2004. Before joining Emergent, Mr. Abdun-Nabi was General Counsel for IGEN International, Inc., a biotechnology company, and its successor BioVeris Corporation, from 1999 to 2004, and Senior Vice President, Legal Affairs, General Counsel and Secretary of North American Vaccine, Inc., a publicly traded vaccine company acquired by Baxter International Inc. in 2000. Mr. Abdun-Nabi currently serves on the board of directors and audit committee for REGENXBIO, Inc. (Nasdaq: RGNX). Mr. Abdun-Nabi earned a bachelor degree in political science from the University of Massachusetts Amherst, a J.D. from the University of San Diego School of Law and an LLM from Georgetown University Law Center. The Board believes that Mr. Abdun-Nabi is qualified to serve on Aptevo's Board because of his extensive experience and knowledge of the biotechnology industry and Aptevo products.

Grady Grant, III has served as a member of our Board since August 2016. Mr. Grant is currently serving as Interim Chief Commercial Officer for New Vision Pharmaceuticals LLC, a contract pharmaceutical development and manufacturing company specializing in blow-fill-seal packaging. Previously, from 2018 to 2020, he was the Vice President of Sales for Tissue Tech Limited, a regenerative medicine company, and from 2011 to 2018, he worked as Vice President of Medical Sales for Mead Johnson Nutrition Company, a public company focused on pediatric nutrition. Prior to that, he served for 30 years at Eli Lilly and Company in various capacities, including service as Vice President of Sales Neuroscience from 2005 to 2011. Mr. Grant earned a bachelor degree in pharmaceutical science from Temple University. The Board believes that Mr. Grant is qualified to serve on Aptevo's Board because of his knowledge of the pharmaceutical industry and marketed products.

 

The Board Of Directors Unanimously Recommends A Vote In Favor Of Each Named Nominee.

Directors Continuing in Office Until the 2022 Annual Meeting

Fuad El-Hibri has served as the Chairman of our Board since August 2016. Mr. El-Hibri has served as the Executive Chairman of the Board of Directors of Emergent since 2012. Previously, Mr. El-Hibri served in various leadership positions at Emergent, including Chief Executive Officer and as Chairman of Emergent's Board of Directors from 2004 to 2012 and President from 2006 to 2007. Prior to Emergent, Mr. El-Hibri served as Chief Executive Officer and Chairman of the Board of Directors of BioPort Corporation (“BioPort”) from 1998 until 2004,

14


 

when, as a result of its corporate reorganization, BioPort became a wholly owned subsidiary of Emergent and was subsequently renamed as Emergent BioDefense Operations Lansing Inc. Mr. El-Hibri is Chairman of East West Resources Corporation (“East West Resources”), a venture capital and business consulting firm, a position he has held since 1990, and from 1990 to 2004, he served as President of East West Resources. Mr. El-Hibri is a member of the Board of Directors of the International Biomedical Research Alliance, an academic joint venture among the National Institutes of Health, Oxford University and Cambridge University. He also serves as Chairman of the El-Hibri Foundation. Previously, Mr. El-Hibri served as a member of the Board of Trustees of American University from 2004 to 2010 and a member of the Board of Directors of the U.S. Chamber of Commerce from 2011 to 2017. Mr. El-Hibri received a master's degree in public and private management from Yale University and a B.A. in economics from Stanford University. The Board believes that Mr. El-Hibri is qualified to serve on Aptevo's Board because of his extensive industry and leadership experience.

 

Marvin L. White  has served as our President, Chief Executive Officer and as a member of our Board since August 2016. From 2010 to 2016, Mr. White served as a director of Emergent, and in 2020, he rejoined the Emergent Board of Directors. From 2008 to 2014, Mr. White served as the Chief Financial Officer of St. Vincent Health, and was responsible for finance, materials management, accounting, patient financial services and managed care for all 19 hospitals and 36 joint ventures. Prior to joining St. Vincent Health in 2008, Mr. White was the Chief Financial Officer of Lilly USA, LLC, a subsidiary of Eli Lilly and Company, where he also held leadership positions in treasury and corporate finance and investment banking in the Corporate Strategy Group. He serves on the Board of Directors of OneAmerica Financial Insurance Partners, Inc., a mutual insurance and financial services company based in Indianapolis, Indiana. Prior to taking the role of President and Chief Executive Officer of Aptevo, Mr. White served on the Board of Directors of Washington Prime Group, a New York Stock Exchange-listed real estate investment trust (REIT) that invests in shopping centers, and CoLucid Pharmaceuticals, Inc., a pharmaceutical company that was publicly-traded until its acquisition by Eli Lilly in 2017. Mr. White earned a bachelor of science degree from Wilberforce University in Accounting and his MBA degree in Finance from Indiana University. Mr. White’s tenure as Chief Executive Officer of Aptevo and his director experience at Emergent provides valuable management and leadership experience. In addition, Mr. White provides crucial insight to the Board on company strategic planning and operations. For these reasons, the Board believes Mr. White is qualified to serve on Aptevo’s Board.

 

John E. Niederhuber, M.D.  has served on our Board and as our Vice Chairman (previously lead independent director) since August 2016. Dr. Niederhuber is currently an adjunct professor of surgery and oncology at The Johns Hopkins University School of Medicine. Dr. Niederhuber is the former Executive Vice President of the Inova Health System, Founder of the Inova Translational Medicine Institute (“Inova”), and founding President and Chief Executive Officer of the Genomics and Bioinformatics Research Institute, a joint venture between Inova and the University of Virginia. Dr. Niederhuber joined the Inova Health System in 2010 as Executive Vice President of the Health System and Chief Executive Officer of Inova. He officially retired from his position at Inova in 2019. Prior to Inova, he served as the Director of the National Cancer Institute, the National Institutes of Health from 2006 to 2010 and as the Director of the University of Wisconsin Comprehensive Cancer Center and professor of surgery and oncology (member of the McArdle Laboratory) at the University of Wisconsin School of Medicine from 1997 to 2005. He chaired the Department of Surgery at Stanford University School of Medicine from 1991 to 1997 and held professorships at The Johns Hopkins University School of Medicine from 1987 to 1991 and at the University of Michigan from 1973 to 1987. Dr. Niederhuber also previously served on the Board of Directors of Emergent from 2010 to 2016. Dr. Niederhuber earned a bachelor of science from Bethany College and his M.D. from The Ohio State University School of Medicine. He is a member of the National Academy of Medicine. The Board believes that Dr. Niederhuber is qualified to serve on Aptevo's Board because he provides valuable insights to the Board through his experience in the field of oncology, immunology, genomics and in the business of healthcare.

 

Directors Continuing in Office Until the 2023 Annual Meeting

Zsolt Harsanyi, Ph.D.  has served as a member of our Board since August 2016. Dr. Harsanyi has served on the Board of Directors of Emergent since 2004 and as Chairman of the Board of Directors of N-Gene Research Laboratories, Inc., a privately-held biotechnology company, since 2011. Prior to that, Dr. Harsanyi served as Chief Executive Officer and Chairman of the Board of Directors of Exponential Biotherapies Inc., a private biotechnology company, from 2004 to 2011. Prior to that, Dr. Harsanyi served as President of Porton International Inc., a pharmaceutical and vaccine company, from January 1983 to December 2004. In 1996, Dr. Harsanyi founded Dynport Vaccine Company LLC. Prior to that, he was Vice President of Corporate Finance at E.F. Hutton, Inc. Dr.

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Harsanyi directed the first assessment of biotechnology for the U.S. Congress’ Office of Technology Assessment, served as a consultant to the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research and was on the faculties of Microbiology and Genetics at Cornell Medical College. Dr. Harsanyi received his bachelor degree from Amherst College and his Ph.D. in genetics from Albert Einstein College of Medicine. The Board believes Dr. Harsanyi is qualified to serve on Aptevo’s Board because of his industry experience, his senior executive and financial positions, and his public company audit committee chair experience.

Barbara Lopez Kunz  has served as a member of our Board since August 2016. Ms. Kunz is currently the President and Global Chief Executive of the Drug Information Association, a non-profit health care company. Ms. Kunz serves as Chair of the Board of Directors of Children’s National Health System Research Institute. From 2007 to 2013, she worked as President of Health and Life Sciences Global Business at Battelle Memorial Institute, a private nonprofit applied science and technology development company. Prior to that, she worked as Senior VP/GM for Thermo Fisher Scientific Inc.’s Fisher Biosciences from 2003 to 2007 and led the Latin America regional business from 2000 to 2003 at Uniqema, a company acquired by Croda International plc in 2006. Ms. Kunz earned bachelor degrees in both biology and chemistry from Thiel College, MBA coursework at Cleveland State University, an MS in polymer science from the University of Akron and is certified in INSEAD’s international executive program. The Board believes that Ms. Kunz is qualified to serve on Aptevo’s Board because of her leadership experience, her business acumen and knowledge of the healthcare industry.

 

information regarding the board of directors and corporate governance

Corporate Governance Guidelines

The Board adopted Corporate Governance Guidelines to assist with its exercise of its duties and responsibilities and to serve the best interests of the Company and its stockholders. The Board, with the assistance of the Nominating and Corporate Governance Committee, continuously evaluates the Company’s Corporate Governance Guidelines to ensure such guidelines are effectively serving the interests of the Company’s stockholders and are up-to-date with respect to current corporate governance best practices. Accordingly, in January 2021, the Board amended its Corporate Governance Guidelines to, among other things, specify that with respect to diversity, the Board will specifically consider a candidate’s gender, nationality, race, ethnicity, and sexual orientation as part of its criteria in considering any such candidate for service on the Board.

Independence of The Board

As required under the Nasdaq Stock Market (“Nasdaq”) listing standards, a majority of the members of a listed company’s Board of Directors must qualify as “independent,” as affirmatively determined by the Board of Directors. The Board consults with the Company’s in-house counsel to ensure that the Board’s determinations are consistent with relevant securities and other laws and regulations regarding the definition of “independence,” including those set forth in pertinent listing standards of Nasdaq, as in effect from time to time.

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Consistent with these considerations, after review of all relevant identified transactions or relationships between each director, or any of his or her family members, and the Company, its senior management and its independent auditors, the Board has affirmatively determined that the following six directors, representing a majority of the members of the Board, are independent directors within the meaning of the applicable Nasdaq listing standards: Mr. El-Hibri, Mr. Abdun-Nabi, Mr. Grant, Dr. Harsanyi, Ms. Kunz and Dr. Niederhuber. In making this determination, the Board found that none of these directors had a material or other disqualifying relationship with the Company. In determining that Mr. El-Hibri and Mr. Abdun-Nabi were independent, the Board considered their respective roles at Emergent, and previous transactions between the Company and Emergent. As Mr. White serves as our President and Chief Executive Officer, he is not independent. Additionally, in accordance with our Corporate Governance Guidelines, the Board determined that all members of the Audit, Compensation, and Nominating and Corporate Governance (“Nom/Gov”) committees of the Board are independent. Additionally, information regarding our Board committees and their members is provided below.

86% Board Independence

                                                                                      

 

100% Committee Independence for Audit, Compensation, and Nom/Gov Committees

 

 

 

 

 

Audit
Committee

 

Compensation
Committee

 

Nominating and Corporate Governance
Committee

 

 

 

 

 

 

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Board Skills and Diversity

Our directors bring to our Board a wide variety of skills, qualifications, and viewpoints that strengthen the Board’s ability to carry out its oversight role on behalf of our stockholders. The table below is a summary of the range of skills and experiences that each director brings to the Board, each of which we find to be relevant to our business. Because it is a summary, it does not include all of the skills, experiences, and qualifications that each director offers, and the fact that a particular experience, skill, or qualification is not listed does not mean that a director does not possess it. All of our directors exhibit high integrity, an appreciation for diversity of background and thought, innovative thinking, a proven record of success, and deep knowledge of corporate governance requirements and best practices.

 

 

ATTRIBUTES, EXPERTISE & SKILLS

Fuad El-Hibri

Marvin L. White

Daniel J. Abdun-Nabi

Grady Grant, III

Zsolt Harsanyi, Ph.D.

Barbara Lopez Kunz

John E. Niederhuber, M.D.

Leadership Experience

X

X

X

X

X

X

X

Strategic Planning and Operations

X

X

X

X

X

X

X

Corporate Governance Experience

X

X

X

X

X

X

X

Relevant Industry Experience

X

X

X

X

X

X

X

ESG and/or Human Capital Management Experience

X

X

X

X

X

X

X

Risk Management Expertise

X

X

X

X

X

X

X

Finance Experience

X

X

X

X

X

X

X

Sales / Marketing Experience

 

 

 

X

 

X

 

Legal Expertise

 

 

X

 

 

 

 

Public Company Board Experience

X

X

X

X

X

X

X

Aptevo Institutional Knowledge

X

X

X

X

X

X

X

 

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As discussed below, while we do not have a formal policy on diversity, we are committed to comprising our Board with well-rounded individuals possessing a diversity of complementary skills, core-competencies and expertise, including diversity with respect to age, gender, national origin and race, for the optimal functioning of the Board. Below provides a snapshot of certain characteristics of our current Board.

 

 

Board Leadership Structure

Our corporate governance guidelines provide the Board flexibility in determining its leadership structure. The Board has decided to keep separate the positions of chief executive officer and chairman of the Board. The Board believes this separate governance structure is optimal because it enables Mr. White to focus his entire energy on running the Company while affording us the benefits of additional leadership and other contributions from Mr. El-Hibri.

Our corporate governance guidelines provide that in the event that the chairman of the Board is not an independent director, the Nominating and Corporate Governance Committee may nominate an independent director to serve as lead director, who shall be approved by a majority of the independent directors. The lead director, among other things, would serve as the presiding director at all executive sessions, determine the need for special meetings of the Board, and consult with directors on matters relating to corporate governance and Board performance.  Because the Chairman of the Board is currently an independent director, the Board does not have a lead director at this time.

Our corporate governance guidelines also provide that the Board may elect a vice chairman of the Board.  The vice chairman, among other things, would assist the chairman of the Board in performing his or her duties and responsibilities, perform the duties of the chairman of the Board during his or her absence or disability, and if an independent director, serve as chair of the Nominating and Corporate Governance Committee.  Mr. Niederhuber currently serves as Vice Chairman of the Board and chair of the Nominating and Corporate Governance Committee.  

Role of the Board in Risk Oversight

Our Board is actively engaged in oversight of risks Aptevo faces and consideration of the appropriate responses to those risks. The Board is responsible for oversight of Aptevo’s risk management programs and, in performing this function, will receive periodic risk assessment and mitigation initiatives for information and approval as necessary. The Audit Committee periodically discusses with senior management the Company’s cybersecurity risk profile, product risk and risk management, including guidelines and policies to govern the process by which Aptevo’s exposure to risk is handled. The Audit Committee also reviews and comments on a periodic risk assessment performed by management. After the Audit Committee performs its review and comment function, it reports any significant findings to the Board. The Compensation Committee strives to create incentives that encourage a reasonable and appropriate level of risk-taking consistent with our business strategy. The Nominating and Corporate Governance Committee is responsible for reviewing our corporate governance and developing and maintaining corporate governance policies and procedures that are appropriate in light of the risks we face.

Meetings of The Board

Our corporate governance guidelines provide that the directors are responsible for attending Board meetings and meetings of committees on which they serve. The Board met sixteen times during 2020. Each Board member attended 75% or more of the aggregate number of meetings of the Board and of the committees on which she or he served, held during the portion of 2020 for which she or he was a director or committee member.

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Information Regarding Committees of the Board

The Board has four standing committees: an Audit Committee, a Compensation Committee, a Nominating and Corporate Governance Committee and an Executive Committee. The duties and responsibilities of each committee is set forth in such committee’s written charter. Each committee’s charter is available to stockholders on the Company’s website at https://aptevotherapeutics.gcs-web.com/corporate-governance/overview/. The following table provides membership and meeting information for 2020 for each of the Board committees:  

Name

 

Audit

 

Compensation

 

Nominating and

Corporate

Governance

 

Executive

Fuad El-Hibri

 

 

 

 

 

X

 

X

Marvin L. White

 

 

 

 

 

 

 

X

Daniel J. Abdun-Nabi

 

X

 

X

 

 

 

X

Grady Grant, III

 

X

 

 

 

X

 

 

Zsolt Harsanyi, Ph.D.

 

X*

 

 

 

 

 

X*

Barbara Lopez Kunz

 

X

 

X*

 

 

 

 

John E. Niederhuber, M.D.

 

 

 

X

 

X*

 

 

 

*

Committee Chairperson

Below is a description of each committee of the Board.

Each of the committees has authority to engage legal counsel or other experts or consultants, as it deems appropriate to carry out its responsibilities. The Board has determined that each member of the Audit, Compensation, and Nominating and Corporate Governance Committees meet the applicable Nasdaq rules and regulations regarding “independence” and each member is free of any relationship that would impair his or her individual exercise of independent judgment with regard to the Company.

Audit Committee

The Audit Committee of the Board was established by the Board in accordance with Section 3(a)(58)(A) of the Exchange Act to oversee the Company’s corporate accounting and financial reporting processes and audits of its financial statements. For this purpose, the Audit Committee performs several functions, including: (1) appointing, approving the compensation of and assessing the independence of our independent registered public accounting firm; (2) overseeing the work of our independent registered public accounting firm; (3) reviewing and discussing with management and the independent registered public accounting firm our annual and quarterly financial statements and related disclosures; (4) monitoring our internal control over financial reporting, disclosure controls and procedures and code of business conduct and ethics; (5) overseeing our internal audit function; (6) assisting the Board in overseeing our compliance with legal and regulatory requirements; (7) periodically discussing our risk management policies, and reviewing and commenting on a periodic risk assessment by management; (8) establishing policies regarding hiring employees from our independent registered public accounting firm and procedures for the receipt and retention of accounting related complaints and concerns; (9) meeting independently with our internal auditing staff, independent registered public accounting firm and management; (10) reviewing and approving or ratifying any related party transactions; and (11) preparing audit committee reports required by SEC rules.

The Audit Committee is composed of four directors: Dr. Harsanyi, Mr. Abdun-Nabi, Mr. Grant, and Ms. Kunz. The Audit Committee met six times during 2020.

The Board has also determined that each of the members of the audit committee qualify as an “audit committee financial expert,” as defined in the applicable SEC rules.

 

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Compensation Committee

The Compensation Committee of the Board acts on behalf of the Board to review, recommend for adoption and oversee the Company’s compensation strategy, policies, plans and programs, including: (1) annually reviewing and approving corporate goals and objectives relevant to the compensation of our executive officers; (2) determining the compensation of our chief executive officer; (3) reviewing and approving the compensation of our other named executive officers; (4) overseeing the evaluation of our senior executives; (5) overseeing and administering our cash and equity incentive plans; and (6) preparing the compensation committee report, if required by SEC rules.

To the extent permitted by applicable law and the provisions of a given equity-based plan, and consistent with the requirements of applicable law and such equity-based plan, the Compensation Committee may delegate to one or more executive officers of the Company the power to grant options or other stock awards pursuant to such equity-based plan to employees of the Company or any subsidiary of the Company who are not directors or executive officers of the Company. The Compensation Committee may also form and delegate authority to one or more subcommittees as it deems appropriate from time to time under the circumstances (including (a) a subcommittee consisting of a single member and (b) a subcommittee consisting of at least two members, each of whom qualifies as a “non-employee director,” as such term is defined from time to time in Rule 16b-3 promulgated under the Exchange Act, and the rules and regulations thereunder, and an “outside director,” as such term is defined from time to time in Section 162(m) of the Internal Revenue Code of 1986, as amended, and the rules and regulations thereunder).

The Compensation Committee is composed of three directors: Ms. Kunz, Mr. Abdun-Nabi, and Dr. Niederhuber. The Compensation Committee met seven times during 2020.

Compensation Committee Processes and Procedures

The Compensation Committee meets as often as it deems necessary in order to perform its responsibilities. The agenda for each meeting is usually developed by the Chair of the Compensation Committee, in consultation with the Chief Executive Officer, the General Counsel and head of Human Resources and Willis Towers Watson, our independent compensation consultant. The Compensation Committee meets regularly in executive session. From time to time, various members of management and other employees as well as outside advisors or consultants may be invited by the Compensation Committee to make presentations, to provide financial or other background information or advice or to otherwise participate in Compensation Committee meetings. The Compensation Committee shall review and approve, or recommend for approval by the Board, the compensation of the Company’s Chief Executive Officer and the Company’s other executive officers, including salary, bonus and incentive compensation levels; deferred compensation; executive perquisites; equity compensation (including awards to induce employment); severance arrangements; change-in-control benefits and other forms of executive officer compensation. The Chief Executive Officer may not participate in, or be present during, any deliberations or determinations of the Compensation Committee regarding his compensation or individual performance objectives. Under the charter, the Compensation Committee has the authority to obtain, at the expense of the Company, advice and assistance from compensation consultants and internal and external legal, accounting or other advisors and other external resources that the Compensation Committee considers necessary or appropriate in the performance of its duties and the authority to conduct or authorize investigations into any matters within the scope of its responsibilities as it shall deem appropriate, including the authority to request any officer, employee or advisor of the Company to meet with the Compensation Committee. The Compensation Committee has direct responsibility for the oversight of the work of any consultants or advisers engaged for the purpose of advising the Compensation Committee. In particular, the Compensation Committee has the sole authority to retain, in its sole discretion, compensation consultants to assist in its evaluation of executive and director compensation, including the authority to approve the consultant’s reasonable fees and other retention terms. Under the charter, the Compensation Committee may select, or receive advice from, a compensation consultant, legal counsel or other adviser to the Compensation Committee, other than in-house legal counsel and certain other types of advisers, only after taking into consideration six factors, prescribed by the SEC and Nasdaq, that bear upon the adviser’s independence.

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During 2020, after taking into consideration the factors prescribed by the SEC and Nasdaq, the Compensation Committee engaged Willis Towers Watson as a compensation consultant. The Compensation Committee requested that Willis Towers Watson:

 

assist in modeling the 2018 Stock Incentive Plan (as Amended and Restated);

 

evaluate the efficacy of the Company’s existing compensation strategy and practices in supporting and reinforcing the Company’s long-term strategic goals; and

 

assist in refining the Company’s compensation strategy and in developing and implementing an executive compensation program to execute that strategy.

As part of its engagement, Willis Towers Watson was requested by the Compensation Committee to provide recommendations for Aptevo’s 2020 peer group, review compensation philosophy and guiding principles in support of executive pay program design considerations, review and assess executive and Board compensation recommendations, advise on performance contingent equity programs and provide recommendations for 2020 long-term incentive grant guidelines. Willis Towers Watson did not provide any additional services to the Company in 2020.

Nominating and Corporate Governance Committee

The Nominating and Corporate Governance Committee of the Board acts on behalf of the Board to (1) develop and recommend corporate governance guidelines for review, (2) identify individuals qualified to become board members, (3) recommend persons to be nominated for election as directors, (4) oversee the evaluation of the board and (5) provide board education recommendations.

The Nominating and Corporate Governance Committee is composed of three directors: Dr. Niederhuber, Mr. El-Hibri, and Mr. Grant. The Nominating and Corporate Governance Committee met four times during 2020.

The Nominating and Corporate Governance Committee exercises general oversight with regard to the Board and identifies individuals qualified to become board members and recommends director nominees for the annual meeting of stockholders. The process followed by the Nominating and Corporate Governance Committee to identify and evaluate director candidates includes identifying qualified individuals consistent with guidelines approved by the Board and recommending to the Board the candidate for election as director.

In considering whether to recommend any particular candidate for inclusion in the Board’s slate of director nominees, the Nominating and Corporate Governance Committee considers the candidate’s integrity, character, demonstrated track record, education and time dedication. The Nominating and Corporate Governance Committee believes that candidates for director should have certain minimum qualifications, including the ability to read and understand basic financial statements, being over 21 years of age and having the highest personal integrity and ethics. The Nominating and Corporate Governance Committee does not assign specific weights to particular criteria and no particular criterion is a prerequisite for a prospective nominee. However, the Nominating and Corporate Governance Committee retains the right to modify these qualifications from time to time. The Nominating and Corporate Governance Committee does not have a formal policy with respect to diversity, but believes that the backgrounds and qualifications of its directors, considered as a group, should provide a composite mix of experience, knowledge and abilities that will allow it to fulfill its responsibilities. Additionally, our corporate governance guidelines state that it is a goal of the Board to strive for diversity in the composition of the membership of the Board. Moreover, the Board will specifically consider a candidate’s gender, nationality, race, ethnicity, and sexual orientation as part of its criteria in considering any such candidate for service on the Board.

In the case of incumbent directors whose terms of office are set to expire, the Nominating and Corporate Governance Committee reviews these directors’ overall service to the Company during their terms, including the number of meetings attended, level of participation, quality of performance and any other relationships and transactions that might impair the directors’ independence. The Nominating and Corporate Governance Committee also takes into account the results of the Board’s self-evaluation, conducted annually on a group and individual basis. In the case of new director candidates, the Nominating and Corporate Governance Committee also determines

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whether the nominee is independent for Nasdaq purposes, which determination is based upon applicable Nasdaq listing standards, applicable SEC rules and regulations and the advice of counsel, if necessary. The Nominating and Corporate Governance Committee then uses its network of contacts to compile a list of potential candidates, but may also engage, if it deems appropriate, a professional search firm. The Nominating and Corporate Governance Committee conducts any appropriate and necessary inquiries into the backgrounds and qualifications of possible candidates after considering the function and needs of the Board. The Nominating and Corporate Governance Committee meets to discuss and consider the candidates’ qualifications and then selects a nominee for recommendation to the Board by majority vote.

In making such recommendations, the Nominating and Corporate Governance Committee shall consider candidates recommended by stockholders. The Nominating and Corporate Governance Committee does not alter the manner in which it evaluates candidates, including the minimum criteria set forth above, based on whether or not the candidate was recommended by a stockholder. The Nominating and Corporate Governance Committee reviews and evaluates information available to it regarding candidates recommend by stockholders and applies the same guidelines, and follows substantially the same process in considering them, as it does in considering other candidates. Stockholders who wish to recommend individuals for consideration by the Nominating and Corporate Governance Committee to become nominees for election to the Board at an Annual Meeting of the Stockholders may do so by delivering a written recommendation to the Nominating and Corporate Governance Committee at our principal executive office not earlier than the 120th day prior to such Annual Meeting of the Stockholders and not later than the close of business on the later of (A) the 90th day prior to such Annual Meeting of the Stockholders and (B) the tenth day following the day on which notice of the date of such Annual Meeting of the Stockholders was mailed or made public. Submissions must include the full name of the proposed nominee, a description of the proposed nominee’s business experience for at least the previous five years, complete biographical information, a description of the proposed nominee’s qualifications as a director and a representation that the recommending stockholder is a beneficial or record holder of our stock. Any such submission must be accompanied by the written consent of the proposed nominee to be named as a nominee and to serve as a director if elected.

Executive Committee

The purpose of the Executive Committee is to exercise such authority of the Board as may be necessary or appropriate during intervals between Board meetings, which includes, without limiting the generality of the foregoing, managing the business and affairs of the Company on behalf of the Board. The Executive Committee generally has the same authority as the Board and, except as otherwise required by law, may take any and all actions as if such actions were taken by the full Board. The Executive Committee provides the Company with the ability to respond and take action quickly, as may be necessary, with respect to matters that may arise in between routine, scheduled meetings of the Board. Without limiting the foregoing, the Executive Committee enables the Board to act quickly with respect to financing matters, collaboration arrangements, and other partnership opportunities that may require quick or immediate action. The Executive Committee replaced the Board’s ad hoc Financing Committee, which, prior to its disbandment, met 26 times during 2020. Members (including the Chair) of the Executive Committee do not receive additional compensation for their committee service.

The Executive Committee is composed of four directors: Dr. Harsanyi, Mr. Abdun-Nabi, Mr. El-Hibri, and Mr. White. Dr. Harsanyi is the Chairman of the Executive Committee.

Overboarding

The Board recognizes the substantial time commitment required of directors of public company boards. Accordingly, as set forth in our Corporate Governance Guidelines, directors are encouraged to limit the number of other public company boards on which he or she serves to three; however, directors may serve on more than three public company boards upon consent of the Board. Directors are required to advise the Chairman of the Board in advance of accepting an invitation to serve on another public company board.

Board Refreshment

While the Board recognizes the value of onboarding new directors who may offer fresh perspectives, the Board does not believe that it should establish term limits as a means to accomplish this. The Board believes that term limits could result in the loss of directors who have been able to develop, over a period of time, increasing insight into the

23


 

Company and its operations and an institutional memory that benefit the entire membership of the Board as well as management. Pursuant to our Corporate Governance Guidelines and as an alternative to term limits, the Nominating and Corporate Governance Committee is charged with the duty of reviewing each director’s continuation on the Board at least once every three years. This will allow each director the opportunity to conveniently confirm his or her desire to continue as a member of the Board and allow the Company to conveniently replace directors who are no longer interested or effective.

Director Continuing Education

The Board encourages and expects each director to partake in continuing director education on an ongoing basis to enable him or her to better perform his or her duties and to recognize and deal appropriately with issues that arise. The Company has a policy of paying for all reasonable expenses related to continuing director education.

Stockholder Communications With The Board

Our Board will give appropriate attention to written communications that are submitted by stockholders and other interested parties and will respond if and as appropriate. The Chairman, with the assistance of Aptevo’s Corporate Secretary, will be primarily responsible for monitoring communications from stockholders and other interested parties and for providing copies or summaries to the other directors as the Chairman considers appropriate.

Communications will be forwarded to all directors if they relate to important substantive matters and include suggestions or comments that the Chairman considers to be important for the directors to know. In general, communications relating to corporate governance and corporate strategy are more likely to be forwarded than communications relating to ordinary business affairs, personal grievances and matters as to which Aptevo receives repetitive or duplicative communications.

Stockholders and other interested parties who wish to send communications on any topic to the Board, Chairman or Independent Directors as a group should address such communications to the Board, Chairman or Independent Directors, as applicable, c/o Corporate Secretary, Aptevo Therapeutics Inc., 2401 4th Ave., Suite 1050, Seattle, Washington 98121. The Corporate Secretary will review all such correspondence and forward to the Board, Chairman or Independent Directors a summary and/or copies of any such correspondence that deals with the functions of the Board or its committees or that she otherwise determines requires their attention.

Employee, Officer and Director Hedging

Our policy prohibits our directors, officers or employees from purchasing financial instruments that are designed to hedge or offset any decrease in the market value of the Company's equity securities held by such persons.

Code of Ethics

The Company has adopted the Aptevo Therapeutics Inc. Code of Conduct and Business Ethics that applies to all officers, directors and employees. The Code of Conduct and Business Ethics is available on the Company’s website at https://aptevotherapeutics.gcs-web.com/corporate-governance/overview. If the Company makes any substantive amendments to the Code of Conduct and Business Ethics or grants any waiver from a provision of the Code to any executive officer or director, the Company will promptly disclose the nature of the amendment or waiver on its website.

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Environmental, Social, and Corporate Governance and Human Capital Management

Environmental, Social, and Corporate Governance

Our directors and management are focused on environmental, social, and governance matters (“ESG”).  We are committed to social responsibility and making ethical business decisions. As we continue to grow, Aptevo remains dedicated to its one simple mission - to enhance the lives of others. We must be unwavering in our commitment to operating with honesty and integrity. This includes protecting the health, safety, and welfare of our employees. We have an Environmental, Health and Safety program that focuses on implementing policies and training programs, as well as performing self-audits to enhance work safety. Importantly, during the COVID-19 pandemic, our continuing focus on safe work practices has enabled us to preserve business continuity without sacrificing our commitment to keeping our colleagues and workplace visitors safe.

In addition, we are committed to adopting and implementing sound ESG policies and practices across our business.  Protecting the environment is important to us and we strive to act sustainably as an organization and to be in compliance with all applicable environmental laws, rules, and regulations.

We operate on the premise that good corporate governance, strong oversight, and rigorous risk management are fundamental to the future success of our business. We believe that our ESG and sustainability policies and practices are well aligned with the long-term best interests of our stockholders and the businesses and communities that we serve.

Human Capital Management

 

We believe the strength of our workforce is critical to our success. Accordingly, we strive to recruit and retain personnel by providing competitive pay and benefits and creating a diverse and inclusive environment where our employees can succeed. The following provides a summary of our human capital management practices.

Diversity, Equity, and Inclusion

Aptevo is an equal opportunity employer, and we are committed to fostering diversity and inclusion within our work environment and beyond. Our efforts are focused on hiring and retaining qualified candidates, and promoting a supportive and inclusive working environment for all of our employees. The Company is resolute on its commitment to the development and fair treatment of all candidates and employees, including equal opportunity hiring and advancement practices and policies, and anti-harassment and anti-retaliation policies. We believe that fostering diversity, equity, and inclusion is a key element to discovering, developing, and bringing transformative therapies to patients. As of December 31, 2020, 60% of our workforce and 46% of our leadership (at the director level and above) were female. In addition, 23% of our workforce and 29% of our leadership (at the director level and above) were racially or ethnically diverse. We strive to build a workforce representative of the people we serve and to nurture an inclusive culture where all voices are welcomed, heard, and respected.

Compensation and Benefits

We offer competitive pay and benefits designed to attract and retain talent and drive Company performance. In setting appropriate compensation levels, we look at the average base pay rate for each position based on market data. We also offer an annual cash incentive program and long-term equity incentive plans designed to assist in attracting, retaining, and motivating employees and promoting the creation of long-term value for stockholders.

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PROPOSAL 2

Ratification of Selection of Independent Registered Public Accounting Firm

Moss Adams LLP currently serves as the Company’s independent registered public accounting firm. After consideration of the firm’s qualifications and past performance, the Audit Committee of the Board has selected Moss Adams LLP as the Company’s independent registered public accounting firm for the year ending December 31, 2021 and has further directed that management submit the selection of its independent registered public accounting firm for ratification by the stockholders at the Annual Meeting. Moss Adams LLP has audited the Company’s financial statements since 2020. Representatives of Moss Adams LLP are expected to be present at the Annual Meeting. They will have an opportunity to make a statement if they so desire and will be available to respond to appropriate questions.

None of the Company’s Amended and Restated Certificate of Incorporation, Bylaws nor other governing documents or law require stockholder ratification of the selection of Moss Adams LLP as the Company’s independent registered public accounting firm. However, the Audit Committee of the Board is submitting the selection of Moss Adams LLP to the stockholders for ratification as a matter of good corporate practice. If the stockholders fail to ratify the selection, the Audit Committee of the Board will reconsider whether or not to retain that firm. The Audit Committee, however, will be under no obligation to retain a new or different independent registered public accounting firm. Even if the selection is ratified, the Audit Committee of the Board in its discretion may direct the appointment of different independent auditors at any time during the year if they determine that such a change would be in the best interests of the Company and its stockholders.

Principal Accountant Fees and Services

As described in the Company’s Current Report on Form 8-K filed on August 27, 2020, on August 25, 2020 the Audit Committee determined to change the Company’s independent accounting firm effective as of such date and notified Ernst & Young LLP, the Company’s then-current independent accounting firm, of its dismissal. On August 26, 2020, the Audit Committee engaged Moss Adams LLP to serve as the independent accounting firm for the Company, effective as of such date.

The following table summarizes the fees of Moss Adams LLP, our Independent Registered Public Accounting Firm, billed to us for their audit and other services for the year ended December 31, 2020, as well as Ernst & Young LLP, our former Independent Registered Public Accounting Firm, billed to us for audit and other services for the years ended December 31, 2019 and 2020. The audit fees include an estimate of amounts not yet billed.

For the year ended December 31, 2020, fees paid or accrued to Moss Adams LLP were:

 

 

 

Year Ended December 31,

 

 

 

2020

 

 

 

(in thousands)

 

Audit Fees

 

$

194,500

 

Audit-related Fees

 

 

 

Tax Fees

 

 

 

All Other Fees

 

 

 

Total Fees

 

$

194,500

 

 

 

 

 

 

 

 

 

 

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For the year ended December 31, 2020, fees paid or accrued to Ernst & Young LLP were:

 

 

 

Year Ended December 31,

 

 

 

2020

 

 

2019

 

 

 

(in thousands)

 

Audit Fees

 

$

210,000

 

 

$

543,000

 

Audit-related Fees

 

 

 

 

 

 

Tax Fees

 

 

 

 

 

 

All Other Fees

 

 

 

 

 

 

Total Fees

 

$

210,000

 

 

$

543,000

 

 

Audit Fees. Audit fees consist of fees from our principal auditor for the audit of our consolidated financial statements and other professional services provided in connection with statutory and regulatory filings or engagements and comfort letters.

 

Pre-Approval Policies and Procedures

The Audit Committee has policies and procedures that require the pre-approval by the Audit Committee (or one of its members) of all services performed by the Company’s independent registered public accounting firm and related fee arrangements. In the first half of each year, the Audit Committee approves the proposed services, including the nature, type and scope of services contemplated, and the related fees, to be rendered by these firms during the year. In accordance with this policy, the Audit Committee or one of its members pre-approved all services to be performed by the Company’s independent registered accounting firm.

The Board Of Directors Unanimously Recommends A Vote In Favor Of Proposal 2.

 

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Proposal 3

Approval of the Company’s 2018 Stock Incentive Plan (as Amended and Restated)

Overview

We are asking you to approve the 2018 Stock Incentive Plan (as Amended and Restated) (for purposes of this proposal, the “Amended Plan”), which was approved by the Board on April 26, 2021, subject to stockholder approval at the Annual Meeting. If approved by stockholders at the Annual Meeting, the Amended Plan will replace the 2018 Stock Incentive Plan (for the purposes of this proposal, the “Current Plan”), and the Amended Plan will be effective upon this approval. If the stockholder vote on the Amended Plan at the Annual Meeting is postponed, the Amended Plan will be effective on such date on which a stockholders’ meeting to vote to approve the Amended Plan occurs, and, until such time, the Current Plan will continue in effect, in accordance with its terms. The Current Plan originally was adopted by our Board in April 2018 and approved by our stockholders in June 2018. In the proxy statement for the 2018 Annual Meeting of Stockholders, the Board estimated that by approving the Current Plan, the Company would have sufficient number of shares of common stock to cover awards for approximately three years depending primarily on our growth and share price.

The Board believes that equity awards are a critical part of our compensation program. Our compensation philosophy emphasizes equity-based awards because they align the interests of our employees (including our executive officers), directors, consultants, and advisors with those of our stockholders, encourage long-term retention, and incentivize long-term value creation. To enable us to continue offering meaningful equity-based incentives to our employees, officers, and directors, as well as consultants and advisors, the Board believes that it is both necessary and appropriate to increase the number of shares available for these purposes.

Accordingly, the Board is seeking stockholder approval of the Amended Plan in order to authorize an additional 500,000 new shares for issuance thereunder. If approved by stockholders at the 2021 Annual Meeting, the Amended Plan will be effective upon such approval (the “Effective Date”). As of April 15, 2021, 67,241 shares remained available for awards under the Current Plan.

The following is a summary of the principal purposes and provisions of the Amended Plan, which is qualified in its entirety by reference to the complete text of the Amended Plan, a copy of which is attached as Appendix B to this Proxy Statement. To the extent the description below differs from the text of the Amended Plan set forth in Appendix B, the text of the Amended Plan controls.

Summary of Principal Amendments

 

Increased authorized pool of shares. The Amended Plan will increase the number of shares authorized for issuance under the Plan by 500,000 shares of common stock.

 

No liberal share recycling of options or stock appreciation rights. Shares underlying options and stock appreciation rights (“SARs”) issued under the Amended Plan will not be recycled into the share pool under the Amended Plan if they are withheld in payment of the exercise price of the award or to satisfy tax withholding obligations in respect of the such awards.

 

Restrictions on Dividends and Dividend Equivalents. The Amended Plan prohibits participants from receiving current dividends or dividend equivalents that are paid before the underlying award vests and is paid.

 

Enhanced clawback provisions. The Amended Plan includes a recoupment, or “clawback” provision, under which any award agreement may provide for the cancellation or forfeiture of an award or the forfeiture and repayment to the Company of any gain related to an award, or other provisions intended to have a similar effect, upon such terms and conditions as may be determined by the Committee (as defined below) in accordance with any Company clawback policy (or successor policy) or otherwise, including as required by the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, or other applicable law, regulation or stock exchange listing requirement. The Amended Plan also has enhanced this clawback provision by providing that participants in the Amended Plan agree to and

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acknowledge that they are obligated to cooperate with, and provide any and all assistance necessary to, the Company to recover or recoup any award or amount paid under the Amended Plan that becomes subject to clawback pursuant to any applicable law, government regulation, stock exchange listing requirement or policy of the Company, including, but not limited to, submitting documentation necessary to recover or recoup any such award.

 

Other changes. The Amended Plan also provides for certain clarifying changes and revisions, and incorporates other administrative provisions and definitions.

Background for Request to Increase the Number of Shares Reserved for Equity Incentive Awards

Equity compensation is a vital component of our executive compensation philosophy. The Board believes it is in the best interests of the Company and its stockholders to approve the Amended Plan in order to continue to motivate outstanding performance by our executive officers, employees, consultants, advisors, and non-employee directors. If this proposal is not approved, we believe that our efforts to motivate these individuals would be negatively impacted and that we would be at a disadvantage against our competitors for recruiting, retaining, and motivating those individuals who are critical to our success. We rely on equity as part of the compensation package for employees and directors. The current shares of common stock available for issuance under the Current Plan as of April 15, 2021 is 67,241 shares, which is not sufficient to grant equity awards in 2022 assuming that such grants are consistent with our historic practices. Accordingly, if this proposal is not approved, we could be forced to increase cash compensation, thus reducing resources available to meet our business needs.

In consideration of the limited number of shares remaining available for issuance under the Current Plan and our need for equity compensation to maintain a competitive position in attracting, retaining, and motivating key personnel, our Board adopted the Amended Plan. In calculating the size of the increase in the authorized number of shares issuable under the Amended Plan, our Board considered, among other things, our hiring plans and expected number of employees, our historic share usage under our stock incentive plans, our “burn rate,” our current overhang in shares issuable upon exercise of outstanding awards granted under our stock incentive plans or as inducement grants, the existing terms of such outstanding awards and assumptions regarding stock option exercise activity and forfeiture rates. On April 23, 2021, the last reported sale price of our common stock on Nasdaq was $25.53 per share.

If stockholders approve the Amended Plan, we will have 500,000 shares of common stock available for issuance pursuant to future awards under the Amended Plan (plus (i) any shares of common stock available for issuance under the Current Plan (up to 67,241 shares), plus (ii) any Returning Shares (as defined below)). We expect that this number of shares available for issuance, given our historical and projected utilization and assuming relative stock price stability, will meet our grant needs until approximately early 2025. This is only an estimate, and circumstances could cause the share reserve to be used more quickly or more slowly. These circumstances include, but are not limited to, the future price of shares of our common stock, the mix of cash, options, and full value awards provided as long-term incentive compensation, grant amounts provided by our competitors, payout of performance-based awards in excess of target in the event of superior performance, hiring activity, and promotions during the next few years.

Dilution Analysis

As of April 15, 2021, our capital structure consisted of 4,449,535 shares of common stock outstanding. As of April 15, 2021, 67,241 shares remained available for awards under the Current Plan. The proposed share authorization is a request for 500,000 new shares of common stock to be available for awards under the Amended Plan.

Overhang provides a measure of the potential dilutive effect of all outstanding equity awards and shares available for future grant. We calculated overhang as the total number of options outstanding, plus shares available to be granted, divided by the total shares of common stock outstanding. Our overhang at December 31, 2020 was 20.56%, and our overhang at March 31, 2021 was 19.89%. If the 500,000 additional shares proposed to be authorized for issuance under our Amended Plan are included in the calculations our overhang would have been 31.89% at December 31, 2020 and 31.13% at March 31, 2021.

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The Board believes that this number of shares represents a reasonable amount of potential equity dilution, which will allow us to continue granting equity awards, which are an important component of our equity compensation program.

Burn Rate

Burn rate provides a measure of the potential dilutive impact of the equity awards we grant. Set forth below is a table that reflects our burn rate for 2018, 2019, and 2020, as well as the average over those years.

Fiscal Year

 

Equity Awards Granted (2)

 

 

Basic Weighted

Average Number

of Shares of

Common Stock

Outstanding (2)

 

 

Gross Burn Rate (1)

 

2020

 

 

210,306

 

 

 

3,390,919

 

 

6.20%

 

2019

 

 

145,361

 

 

 

2,917,035

 

 

4.98%

 

2018

 

 

64,813

 

 

 

1,607,147

 

 

4.03%

 

Three-Year Average

 

 

140,160

 

 

 

2,638,367

 

 

5.07%

 

 

 

(1)

“Gross Burn Rate” is defined as the number of equity awards granted in the year divided by the basic weighted-average of shares of common stock outstanding.

 

(2)

Adjusted to reflect the impact of the 14-to-1 reverse stock split of our common stock effected on March 26, 2020.

The only equity compensation plan from which we may currently issue new awards is the Current Plan. We may also issue new awards as inducement grants. The following table summarizes information regarding all of our outstanding options under all of our equity compensation plans and shares available for future awards under all of our equity plans as of March 31, 2021.

 

 

March 31, 2021*

 

Outstanding options

 

 

356,611

 

Outstanding RSUs

 

 

61,771

 

Total shares of common stock underlying all outstanding options and RSUs

 

 

418,382

 

Weighted-average exercise price of outstanding options

 

$

19.60

 

Weighted-average remaining contractual life of outstanding options (in years)

 

 

9.37

 

Total shares available for future awards

 

 

68,624

 

 

*Excludes inducement awards granted pursuant to Nasdaq Listing Rule 5635(c)(4).

Promotion of Sound Corporate Governance Practices

We have designed the Amended Plan to include a number of features that reinforce and promote alignment of equity compensation arrangements for employees, officers, non-employee directors, and consultants with the interests of our stockholders. These features include, but are not limited to, the following:

 

Limitation on Awards to Non-Employee Directors.  Awards granted to non-employee directors may not exceed an aggregate value of $1,000,000 (taken together with any cash fees earned by such non-employee director for services rendered during the calendar year and based on grant date fair value) in any one fiscal year period.

 

No Discounted Stock Options or Stock Appreciation Rights.  Stock options and SARs may not be granted with exercise prices lower than the fair market value of the underlying shares on the grant date.

 

Prohibition on Repricing.  The exercise price of a stock option or SAR may not be reduced, directly or indirectly, without the prior approval of stockholders, including by a cash repurchase of “underwater” awards.

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Minimum Vesting Requirements.  Subject to certain limited exceptions, awards granted under the Amended Plan will be subject to a minimum vesting period of one year.

 

No Liberal Share Recycling.  Shares retained by or delivered to the Company to pay the exercise price of a stock option or SAR or to satisfy tax withholding taxes in connection with the exercise or settlement of an award count against the number of shares remaining available under the Amended Plan. The Amended Plan also prohibits “net share counting” upon the exercise of stock options or SARs and prohibits the reuse of shares purchased on the open market with the proceeds of option exercises.

 

No Dividends on Unearned or Unvested Awards.  The Amended Plan prohibits the current payment of dividends or dividend equivalent rights on unearned or unvested awards.

 

Awards Subject to Clawback.  Awards under the Amended Plan are subject to clawback in the event the participant engages in misconduct that causes the need for restatement of financial statements.

 

No Tax Gross-Ups.  The Amended Plan does not provide for any tax gross-ups.

 

No Liberal Change in Control Definition.  The Amended Plan defines “Reorganization Event” and “Change in Control Event” based on the consummation of the transaction rather than the announcement or stockholder approval of the transaction.

Description of the Amended Plan

References to the “Committee” in this summary mean the Compensation Committee of the Board. As the full Board may perform any function of the Committee with respect to the Amended Plan (except to the extent limited under Nasdaq rules), the term “Committee” also refers to the Board.

Types of Awards; Shares Available for Issuance

The Amended Plan allows for the issuance of Incentive Stock Options (“ISOs”) intended to qualify under Section 422 of the Internal Revenue Code, as amended (the “Code”), Nonstatutory Stock Options (“NSOs”), SARS, restricted stock awards, restricted stock units, other stock-based awards, cash-based awards, and performance awards (collectively, “Awards”). Subject to adjustment in the event of stock splits, stock dividends, or similar events, and assuming the Amended Plan is approved by our stockholders, Awards may be made under the Amended Plan for up to 500,000 shares of common stock, plus (i) any shares of common stock available for issuance under the Current Plan (up to 67,241 shares), plus (ii) any Returning Shares (collectively, the “Share Reserve”).

If any shares to which an Award relates are (i) forfeited, canceled or payment is made to the participant in the form of cash, cash equivalents or other property other than shares; (ii) tendered by the participant or withheld by the Company to satisfy any tax withholding obligation with respect to an Award other than an Option or SAR; or (iii) otherwise terminated without payment being made to the participant in the form of shares, such shares shall be added back to the Share Reserve (such shares, the “Returning Shares”). Notwithstanding the foregoing, the following shares will not be added back to the Share Reserve: (i) shares previously owned or acquired by the participant that are delivered to the Company, or withheld from an Award, to pay the exercise price of an Award, (ii) shares that are delivered or withheld for purposes of satisfying a tax withholding obligation relating to an Option or SAR, (iii) shares not issued or delivered as a result of the net settlement of an outstanding Option or SAR, or (iv) shares repurchased on the open market with the proceeds of the exercise price of an Option. Subject to applicable stock exchange requirements, substitute Awards will not count against the Share Reserve, nor will shares subject to a substitute Award again be available for Awards under the Amended Plan to the extent of any forfeiture, expiration or cash settlement. Shares of common stock delivered by the Company under the Amended Plan may be authorized but unissued common stock or previously-issued common stock acquired by the Company.

Certain limitations apply to the shares of common stock available for issuance under the Amended Plan. The maximum aggregate grant date value of shares of common stock subject to awards that may be granted to a non-employee director during any calendar year, taken together with any cash fees earned by such non-employee director for services rendered during the calendar year, cannot exceed $1,000,000 in total value. The Committee may make

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exceptions to this limit for a non-executive chair of the Board or, in extraordinary circumstances, for other individual non-employee directors, as the Committee may determine in its discretion, provided that the non-employee director receiving such additional compensation may not participate in the decision to award such compensation.

In connection with a merger or consolidation of an entity with us or our acquisition of property or stock of an entity, the Committee may grant Awards under the Amended Plan in substitution for an option or other stock or stock-based Awards granted by such entity or an affiliate thereof on such terms as the Committee determines appropriate in the circumstances, notwithstanding any limitation on Awards contained in the Amended Plan. Substitute Awards granted under the Amended Plan in connection with a merger or consolidation of an entity with the Company or the acquisition by the Company of property or stock of an entity will not count against the overall share limits and limitations described above, except as required by reason of Section 422 and related provisions of the Code.

Descriptions of Awards

Options.  Optionees receive the right to purchase a specified number of shares of common stock at a specified option price and subject to such other terms and conditions as are specified in connection with the option grant. Only our employees or employees of our subsidiaries, if any, may receive ISOs as defined in Section 422 of the Code. An option that is not intended to be an ISO is an NSO. Options may not be granted at an exercise price that is less than 100% of the fair market value of the common stock on the effective date of grant; provided, however, that if the Committee approves the grant of an option with an exercise price to be determined on a future date, the exercise price may not be less than 100% of the fair market value of the common stock on such future date. ISOs may not be granted at an exercise price less than 110% of the fair market value in the case of stock options granted to optionees holding more than 10% of the total combined voting power of all classes of our stock. Under the terms of the Amended Plan, stock options may not be granted for a term in excess of 10 years (and five years in the case of ISOs granted to optionees holding greater than 10% of the total combined voting power of all classes of our stock). Any or all of the Awards available under the Amended Plan may be in the form of ISOs. The Amended Plan permits participants to pay the exercise price of options using one or more of the following manners of payment: (i) payment by cash, check or wire transfer, or, except as may otherwise be provided in the applicable option Award agreement or approved by the Committee, in connection with a “cashless exercise” through a broker, (ii) to the extent provided in the applicable option Award agreement or approved by the Committee, and subject to certain conditions, by surrender to us of shares of common stock owned by the participant valued at their fair market value, (iii) to the extent provided in an applicable NSO agreement or approved by the Committee, and subject to certain conditions, by delivery of a notice of “net exercise” as a result of which we will retain a number of shares of common stock otherwise issuable pursuant to the stock option equal to the aggregate exercise price for the portion of the option being exercised divided by the fair market value of our common stock on the date of exercise, (iv) to the extent provided by applicable law and provided for in the applicable option Award agreement or approved by the Committee, by any other lawful means, or (v) any combination of the foregoing.

Stock Appreciation Rights.  A SAR is an award entitling the holder, upon exercise, to receive a number of shares of common stock or cash (or a combination thereof) determined by reference to appreciation, from and after the date of grant, in the fair market value of a share of our common stock over the measurement price. SARs may be granted independently or in tandem with stock options granted under the Amended Plan. The Amended Plan provides that the measurement price of an SAR may not be less than 100% of the fair market value of our common stock on the effective date of grant (provided, however, that if the Committee approves the grant of a SAR effective as of a future date, the measurement price will not be less than 100% of the fair market value on such future date) and that SARs granted under the Amended Plan may not have a term in excess of 10 years.

Limitation on Repricing of Options or SARs; No Reload Rights or Dividend Equivalents.  With respect to options and SARs, unless such action is approved by stockholders or otherwise permitted under the terms of the Amended Plan in connection with certain changes in capitalization and reorganization events, we may not (i) amend any outstanding option or SAR granted under the Amended Plan to provide an exercise price or measurement price per share that is lower than the then-current exercise price or measurement price per share of such outstanding option or SAR, (ii) cancel any outstanding option or SAR (whether or not granted under the Amended Plan) and grant in substitution therefor new Awards under the Amended Plan (other than certain substitute Awards described above) covering the same or a different number of shares of common stock and having an exercise price or measurement price per share lower than the then-current exercise price or measurement price per share of the canceled option or

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SAR, (iii) cancel in exchange for a cash payment any outstanding option or SAR with an exercise price or measurement price per share above the then-current fair market value of our common stock, or (iv) take any other action under the Amended Plan that constitutes a “repricing” within the meaning of the rules of Nasdaq. No option or SAR granted under the Amended Plan will contain any provision entitling the grantee to the automatic grant of additional options or SARs in connection with any exercise of the original option or SAR or provide for the payment or accrual of dividend equivalents.

Restricted Stock Awards.  We may issue Awards entitling recipients to acquire shares of our common stock subject to our right to repurchase all or part of such shares at their issue price or other stated or formula price (or to require forfeiture of such shares if issued at no cost) from the recipient in the event that conditions specified by the Committee in the applicable Award are not satisfied prior to the end of the applicable restriction period established for such Award. We refer to these Awards as Restricted Stock. Any dividends (whether paid in cash, stock or property) declared and paid by the Company with respect to shares of Restricted Stock (“Unvested Dividends”) will be paid to the participant only if and when such shares become free from the restrictions on transferability and forfeitability that apply to such shares. No interest will be paid on Unvested Dividends.

Restricted Stock Units.  We may also grant Awards entitling the recipient to receive shares of our common stock (or cash equal to the fair market value of such shares) to be delivered at the time such Award vests. We refer to these Awards as Restricted Stock Units. The Committee may, in its discretion, provide that settlement of Restricted Stock Units will be deferred, on a mandatory basis or at the election of the participant in a manner that complies with Section 409A of the Code. A participant has no voting rights with respect to any Restricted Stock Units.

Other Stock-Based Awards.  Under the Amended Plan, the Committee may grant other Awards of shares of common stock and other Awards that are valued in whole or in part by reference to, or are otherwise based upon our common stock or other property, having such terms and conditions as the Committee may determine. We refer to these types of Awards as Other Stock-Based Awards. Other Stock-Based Awards may be available as a form of payment in the settlement of other Awards granted under the Amended Plan or as payment in lieu of compensation to which a participant is otherwise entitled. Other Stock-Based Awards may be paid in shares of our common stock or cash, as the Committee determines.

Other Cash-Based Awards. The Company may also grant Awards denominated in cash rather than shares of common stock.

Performance Awards.  Restricted Stock, Restricted Stock Units, and Other Stock-Based Awards and Cash-Based Awards granted under the Amended Plan may be made subject to achievement of performance goals. We refer to these types of Awards as Performance Awards. Performance measures established by the Committee may consist of one or more criteria determined by the Committee, including, without limitation:

 

revenue (gross, operating or net);

 

revenue growth;

 

EBIT;

 

EBITDA;

 

earnings growth;

 

profit margins or contributions;

 

expense levels or ratios;

 

return on investment;

 

return on assets;

 

return on equity;

 

return on capital (total or invested);

 

operating cash flow;

 

cash flow sufficient to achieve financial ratios or a specified cash balance;

 

free cash flow;

 

cash flow return on capital;

 

net cash provided by operating activities;

 

cash flow per share;

 

working capital or adjusted working capital;

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return on stockholders’ equity;

 

total stockholder return;

 

stock price; stock price appreciation;

 

market capitalization;

 

earnings per share (basic or diluted) (before or after taxes);

 

price-to-earnings ratio;

 

acquisitions or divestitures;

 

collaborations, licensing, or joint ventures;

 

product research and development;

 

clinical trials;

 

regulatory filings or approvals;

 

patent application or issuance;

 

manufacturing or process development;

 

sales or net sales;

 

sales growth;

 

market share;

 

market penetration;

 

inventory control;

 

growth in assets;

 

key hires;

 

business expansion;

 

achievement of milestones under a third-party agreement;

 

financing;

 

resolution of significant litigation;

 

legal compliance or risk reduction;

 

improvement of financial ratings; or

 

achievement of balance sheet or income statement objectives.

Such performance measures: (i) may vary by participant and may be different for different Awards; and (ii) may be particular to a participant or the department, branch, line of business, subsidiary or other unit in which the participant works and may cover such period as may be specified by the Committee. Performance criteria that are financial metrics may be determined in accordance with GAAP or financial metrics that are based on, or able to be derived from GAAP, and may be adjusted when established or at any time thereafter to include or exclude any items otherwise includable or excludable under GAAP. The determination of performance with respect to a performance criteria may include or exclude any one or more of:

 

extraordinary items;

 

gains or losses on the dispositions of discontinued operations;

 

the cumulative effects of changes in accounting principles;

 

the impairment or writedown of any asset or assets;

 

charges for restructuring and rationalization programs;

 

other extraordinary or non-recurring items, as specified by the Committee when establishing the performance measures; or

 

such other factors as the Committee may determine.

 

Dividends and Dividend Equivalents

The Committee is authorized to grant to participants a right under the Amended Plan, to receive cash, common stock, other Awards or other property equal in value to all or a specified portion of the dividends paid with respect to a specified number of shares of common stock (“Dividend Equivalents”). Dividend Equivalents will be subject to the same vesting terms as applied to the original Award to which it relates. With respect to any Award that provides for or includes a right to dividends or Dividend Equivalents, if dividends are declared during the period that an equity Award is unvested, such dividends (or Dividend Equivalents) will either (i) not be paid or credited with

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respect to such Award or (ii) be accumulated but remain subject to vesting requirement(s) to the same extent as the applicable Award and shall only be paid at the time or times such vesting requirement(s) are satisfied. In no event will dividends or dividend equivalents be paid with respect to Options or SARs.

Transferability of Awards

Except as the Committee may otherwise determine or provide in an Award in connection with certain gratuitous transfers, Awards may not be sold, assigned, transferred, pledged, or otherwise encumbered by the person to whom they are granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution or, other than in the case of an ISO, pursuant to a qualified domestic relations order. During the life of the participant, Awards are exercisable only by the participant.

Eligibility to Receive Awards

Employees, officers, directors, consultants, and advisors of Aptevo or a subsidiary of Aptevo are eligible to be granted Awards under the Amended Plan. However, ISOs may only be granted to our employees. The granting of Awards under the Amended Plan is discretionary, and we cannot now determine the number or type of Awards to be granted in the future to any particular person or group, except that Awards are subject to the limitations described above. Because our executives and non-employee directors are eligible to receive awards under the Amended Plan, they may be deemed to have a personal interest in the approval of this proposal. As of March 31, 2021, 58 employees, six non-employee directors, and eleven consultants would be eligible to receive Awards under the Amended Plan.

Administration

The Committee (which shall consist of two or more members who are not current or former officers or employees of the Company, who are “non-employee directors” to the extent required by and within the meaning of Rule 16b-3 under the Exchange Act and who are “independent” pursuant to the rules of Nasdaq) administers the Amended Plan and is authorized to grant Awards and to adopt, amend, and repeal the administrative rules, guidelines, and practices relating to the Amended Plan and to construe and interpret the provisions of the Amended Plan and any Award agreements entered into under the Amended Plan. The Committee may correct any defect, supply any omission, or reconcile any inconsistency in the Amended Plan or any Award in the manner and to the extent it will deem expedient and it will be the sole and final judge of such expediency.

Pursuant to the terms of the Amended Plan, the Committee may delegate authority under the Amended Plan to persons as it deems appropriate; provided, however, no such delegation may be made if it will prevent the Amended Plan or any award under the Amended Plan from complying with Rule 16b-3, the rules of the Nasdaq, or any other law. Additionally, the full Board may perform any function of the Committee except to the extent limited under Nasdaq rules. The Committee, with the input of management, selects the recipients of Awards and determines, in addition to other items, and subject to the terms of the Amended Plan:

 

the number of shares of common stock, cash, or other consideration covered by Awards and the terms and conditions of such Awards, including the dates upon which such Awards become exercisable or otherwise vest;

 

the exercise or measurement price of Awards, if any;

 

the effect on Awards of a change in control of Aptevo; and

 

the duration of Awards.

To the extent permitted by applicable law, the Committee may delegate to one or more of our officers the power to grant Awards to our employees or non-executive officers and to exercise such other powers under the Amended Plan as the Committee may determine, provided that the Committee will fix the terms of the Awards to be granted by such officers and the maximum number of shares subject to Awards that the officers may grant. No officer will be authorized to grant Awards to any of our executive officers.

Awards to non-employee directors will only be granted and administered by a committee, all the members of which are independent as defined by Section 5605(a)(2) of the Nasdaq Listing Rules.

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Except as otherwise provided under the Amended Plan, each Award may be made alone or in addition or in relation to any other Award. The terms of each Award need not be identical, and the Committee need not treat participants uniformly. Except as otherwise provided for in the Amended Plan, the Committee will determine the effect on an Award of the disability, death, retirement, termination, or other cessation of employment, authorized leave of absence or other change in the employment or other status of a participant and the extent to which, and the period during which, the participant (or the participant’s legal representative, conservator, guardian, or designated beneficiary) may exercise rights under the Award.

We are required to make equitable adjustments (in the manner determined by the Committee) to the number and class of securities available under the Amended Plan and any outstanding awards under the Amended Plan and the share counting rules and limits set forth in the Amended Plan to reflect stock splits, stock dividends, recapitalizations, combinations of shares, reclassifications of shares, spin-offs, and other similar changes in capitalization or events or any dividends or distributions to holders of our common stock other than ordinary cash dividends.

All decisions by the Committee will be made in the Committee’s sole discretion and will be final and binding on all persons having or claiming any interest in the Amended Plan or in any Award. We will indemnify and hold harmless each director, officer, employee, or agent to whom any duty or power relating to the administration or interpretation of the Amended Plan has been or will be delegated against any cost or expense (including attorneys’ fees) or liability (including any sum paid in settlement of a claim with the Committee’s approval) arising out of any act or omission to act concerning the Amended Plan unless arising out of such person’s own fraud or bad faith.

Minimum Vesting.  No Award, other than Cash-Based Awards, may vest (or, if applicable, be exercisable) until at least twelve (12) months following the date of grant of the Award; provided, however, that the following Awards are not be subject to the foregoing minimum vesting requirement: any (i) substitute Awards; (ii) Awards to non-employee directors that vest on the earlier of the one-year anniversary of the date of grant and the next annual meeting of stockholders that is at least 50 weeks after the immediately preceding year’s annual meeting; and (iii) any additional Awards that the Committee may grant, up to a maximum of five percent (5%) of the available share reserve authorized or issuance under the Amended Plan, subject to adjustments made in accordance with the terms of the Amended Plan. The foregoing restrictions do apply to the Committee’s discretion to provide for accelerated exercisability or vesting of any Award in cases of death, disability, Reorganization Event, or a Change in Control Event, in the terms of the Award document or otherwise.

Amendment of Awards.  Except as otherwise provided under the Amended Plan with respect to repricing outstanding stock options or SARs, Performance Awards, the minimum vesting rules and exclusions thereto, the prohibitions on acceleration of vesting and exclusions thereto, or actions requiring stockholder approval, the Committee may amend, modify, or terminate any outstanding Award, including but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise or realization, and converting an ISO to an NSO, provided that the participant’s consent to any such action will be required unless the Committee determines that the action, taking into account any related action, does not materially and adversely affect the participant’s rights under the Amended Plan or the change is otherwise permitted under the terms of the Amended Plan in connection with a change in capitalization or reorganization event.

Clawback. The Committee may condition an eligible person’s right to receive a grant of an Award, or a participant’s right to exercise an Award, to retain common stock, cash or other property acquired in connection with an Award, or to retain the profit or gain realized by a participant in connection with an Award, upon the participant’s compliance with specified conditions relating to non-competition, confidentiality of information relating to the Company, non-solicitation of customers, suppliers, and employees of the Company, cooperation in litigation, non-disparagement of the Company and its officers, non-employee directors and affiliates, or other requirements applicable to the participant, as determined by the Committee, at the time of grant or otherwise, including during specified periods following termination of service.

In the event that the participant engages in misconduct that causes or partially causes the need for restatement of financial statements that would have resulted in a lower Award where the payment was predicated upon the achievement of certain financial results that were the subject of the restatement, to the extent of the reduction in amount of such Award as determined by the Committee (i) the Award will be canceled and (ii) the participant will

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forfeit (A) the shares of common stock received or payable on the vesting or exercise of the Award and (B) the amount of the proceeds of the sale or gain realized on the vesting or exercise of the Award.

Awards granted under the Amended Plan are subject to the terms of the Company’s recoupment, clawback or similar policy as it may be in effect from time to time, as well as any other policy of the Company that applies to Awards, such as anti-hedging or pledging policies, as they may be in effect from time to time. By accepting Awards under the Amended Plan, participants agree and acknowledge that they are obligated to cooperate with, and provide any and all assistance necessary to, the Company to recover or recoup any Award or amounts paid under the Amended Plan subject to clawback pursuant to such law, government regulation, stock exchange listing requirement or Company policy.

Reorganization Events and Change in Control Events

Definitions.  The Amended Plan contains provisions addressing the consequences of any reorganization or change in control event. A “Reorganization Event” is defined under the terms of the Amended Plan to mean: (a) any merger or consolidation of us with or into another entity as a result of which the common stock is converted into or exchanged for the right to receive cash, securities, or other property, or is canceled, or (b) any exchange of shares of common stock for cash, securities or other property pursuant to a share exchange or other transaction.

A “Change in Control Event” is defined under the terms of the Amended Plan to mean: (a) the acquisition by an individual, entity or group (a “Person”) of beneficial ownership of any capital stock of the Company if, after such acquisition, such Person beneficially owns 50% or more of either (x) the aggregate number of shares of common stock then-outstanding or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors, excluding certain specified acquisitions that pursuant to the terms of the Amended Plan do not constitute a Change in Control Event; (b) such time as the continuing directors do not constitute a majority of the Board (or, if applicable, the Board of Directors of a successor corporation to the Company), excluding any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board; (c) the consummation of a merger, consolidation, reorganization, recapitalization or share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), excluding certain Business Combinations set forth in the Amended Plan; or (d) the complete liquidation or dissolution of the Company.

Impact on Awards. Upon the occurrence of a Reorganization Event or Change in Control Event, (except to the extent specifically provided otherwise in an applicable Award agreement or another agreement between the Company and the participant) awards shall either:  (a) be assumed, or substantially equivalent Awards shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof); (b) upon written notice to a participant, be terminated immediately prior to the consummation of such Reorganization Event or Change in Control Event unless exercised by the participant (only to the extent then vested and exercisable) within a specified period following the date of such notice; (c) only if Awards are not assumed or substituted pursuant to clause (a) above, become exercisable, realizable, or deliverable, or restrictions applicable to an Award shall lapse, in whole or in part prior to or upon such Reorganization Event or Change in Control Event; (d) in the event of a Reorganization Event or Change in Control Event under the terms of which holders of common stock will receive upon consummation thereof a cash payment for each share surrendered in the Reorganization Event or Change in Control Event (the “Acquisition Price”), make or provide for a cash payment to participants with respect to each Award held by a participant equal to (X) the number of shares of common stock subject to the vested portion of the Award (after giving effect to any acceleration of vesting that occurs upon or immediately prior to such Reorganization Event or Change in Control Event in cases where such awards are not assumed or substituted) multiplied by (Y) the excess, if any, of (I) the Acquisition Price over (II) the exercise, grant or purchase price of such Award and any applicable tax withholdings, in exchange for the termination of such Award; (e) provide that, in connection with a liquidation or dissolution of the Company, Awards shall convert into the right to receive liquidation proceeds (if applicable, net of the exercise, measurement or purchase price thereof and any applicable tax withholdings); and (f) any combination of the foregoing. If the per share fair market value of the common stock does not exceed the per share exercise price of an Option or SAR, the Company is not required to make any payment to the participant upon surrender or cancelation of the Option or SAR. The Committee is not obligated by the Amended Plan to treat all Awards, all Awards held by a participant, or all Awards of the same type, identically.

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Notwithstanding the foregoing, except to the extent specifically provided to the contrary in the Award agreement or any other agreement between the participant and the Company, each Award shall become immediately vested, exercisable, or free from forfeiture, as applicable, if on or prior to the first anniversary of the date of the consummation of a Change in Control Event, the participant’s service with the Company or a successor corporation is terminated without “Cause” (as defined in the Amended Plan) by the Company or the successor corporation or is terminated for “Good Reason” (as defined in the Amended Plan) by the participant.

Amendment or Termination

The Committee may amend, suspend, or terminate the Amended Plan or any portion thereof at any time provided that (i) no amendment that would require stockholder approval under the rules of the national securities exchange on which the Company then maintains its primary listing may be made effective unless and until our stockholders approve such amendment; and (ii) if the national securities exchange on which the Company then maintains its primary listing does not have rules regarding when stockholder approval of amendments to equity compensation plans is required (or if the Company’s common stock is not then listed on any national securities exchange), then no amendment to the Amended Plan (A) materially increasing the number of shares authorized under the Amended Plan (other than as provided for in the Amended Plan in connection with substitute Awards, changes in capitalization or reorganization events), (B) expanding the types of Awards that may be granted under the Amended Plan, or (C) materially expanding the class of participants eligible to participate in the Amended Plan will be effective unless and until our stockholders approve such amendment. In addition, if at any time the approval of our stockholders is required as to any other modification or amendment under Section 422 of the Code or any successor provision with respect to ISOs, the Committee may not effect such modification or amendment without such approval. Unless otherwise specified in the amendment, any amendment to the Amended Plan adopted in accordance with the procedures described above will apply to, and be binding on the holders of, all Awards outstanding under the Amended Plan at the time the amendment is adopted, provided that the Committee determines that such amendment, taking into account any related action, does not materially and adversely affect the rights of participants under the Amended Plan. No Award shall be made that is conditioned upon stockholder approval of any amendment to the Amended Plan unless the Award provides that (i) it will terminate or be forfeited if stockholder approval of such amendment is not obtained within no more than 12 months from the date of grant and (2) it may not be exercised or settled (or otherwise result in the issuance of common stock) prior to such stockholder approval.

Effective Date and Term of Amended Plan

The Amended Plan will become effective on June 25, 2021 (the “Effective Date”), subject to approval by an affirmative vote of the Company’s stockholders. If the Amended Plan is not so approved by the Company’s stockholders, then the Current Plan, as in effect immediately prior the Effective Date, shall remain in effect. No Awards shall be granted under the Amended Plan after the expiration of 10 years from the Effective Date, but Awards previously granted may extend beyond that date.

Federal Income Tax Consequences

The following is a brief summary of the principal United States federal income tax consequences that generally will arise to plan participants and the Company with respect to Awards granted under the Amended Plan. This summary is based on an interpretation of the federal tax laws and regulations in effect as of the date of this Proxy Statement and may be inapplicable if such laws and regulations are changed in the future. This summary is not intended to be exhaustive or constitute tax advice and does not describe state, local or foreign tax consequences. In addition, to the extent that any Awards granted under the Amended Plan are subject to Section 409A of the Code, this summary assumes that all Awards will be designed to conform to the rules under Section 409A of the Code regarding nonqualified deferred compensation (or an exception thereto). The Amended Plan is not subject to the protective provisions of the Employee Retirement Income Security Act of 1974 and is not qualified under Section 401(a) of the Code.

Incentive Stock Options.  Options issued under the Amended Plan and designated as ISOs are intended to qualify as such under Section 422 of the Code. Under the provisions of Section 422 and the related regulations, an optionee who has been granted an ISO will not have income, and the Company will not be entitled to a deduction, upon the grant or exercise of an ISO; provided, however, that the difference between the value of the stock received on the

38


 

exercise date and the exercise price paid is an item of tax preference for purposes of determining the optionee’s alternative minimum tax.

The taxation of gain or loss upon the sale of the stock acquired upon the exercise of an ISO will depend, in part, on whether the holding period of the stock is at least (a) two years from the date the option was granted and (b) more than one year from the date the option was exercised. If these holding period requirements are satisfied, then any gain or loss realized on a subsequent disposition of the stock will be treated as a long-term capital gain or loss. If these holding periods are not met, then upon such “disqualifying disposition” of the stock, the optionee will have ordinary income, in an amount equal to the excess of the fair market value of the stock at the time of exercise over the exercise price, limited to the gain on the sale. Any further gain (or loss) realized by the optionee generally will be taxed as short-term or long-term capital gain (or loss) depending on the holding period. This capital gain (or loss) will be long-term if the optionee has held the stock for more than one year and otherwise will be short-term.

If the optionee recognizes ordinary income upon a disqualifying disposition, the Company generally will be entitled to a tax deduction in the same amount. If, however, the optionee meets the applicable holding period, the Company generally will not be entitled to a tax deduction with respect to capital gains recognized by the optionee. If an ISO is exercised at a time when it no longer qualifies as an incentive stock option, the option will be treated as a nonstatutory stock option.

Nonstatutory Stock Options.  An optionee will generally not have income upon the grant of a NSO. Rather, the optionee will have compensation income upon the exercise of a NSO equal to the fair market value of the stock on the day the optionee exercised the option less the exercise price plus the amount, if any, paid by the optionee for the NSO. The Company is generally entitled to a tax deduction in an amount equal to the compensation income recognized by the optionee. Upon a subsequent sale of the stock acquired under an NSO, the optionee will have short-term or long-term capital gain or loss, depending on the holding period, equal to the difference between the sales proceeds and the fair market value of the NSO stock on the day the option was exercised. This capital gain or loss will be long-term if the participant has held the NSO stock for more than one year after the NSO is exercised and otherwise will be short-term.

Stock Appreciation Rights.  SARs are treated very similarly to NSOs for tax purposes. A participant receiving an SAR will not normally have income upon the grant of an SAR. Rather, upon the exercise of an SAR the participant will recognize compensation taxable as ordinary income equal to either: the amount of the cash received upon the exercise; or, if stock is received upon the exercise of the SAR, the fair market value of any such stock received. The Company will generally be entitled to a tax deduction in an amount equal to the compensation income recognized by the participant. Upon the sale of any stock received upon the exercise of the SAR, the participant will have capital gain or loss equal to the difference between the sales proceeds and the fair market value of the stock on the day the SAR was exercised. This capital gain or loss will be long-term if the participant held the stock for more than one year from the date of exercise and otherwise will be short-term.

Restricted Stock.  A participant that receives an award of Restricted Stock under the Amended Plan will normally not have income upon the grant of Restricted Stock, nor is the Company entitled to any deduction, to the extent that the stock awarded has not vested (i.e., is no longer subject to a substantial risk of forfeiture). When any part of the Restricted Stock vests, the participant will realize compensation taxable as ordinary income in an amount equal to the fair market value of the vested stock on the vesting date (less the amount, if any, paid for the stock). The participant may, however, make an election, referred to as a Section 83(b) election, within 30 days of the date of grant, to be taxed at the time of the grant of the Restricted Stock based upon the fair market value of the stock on the grant date less the purchase price, if any. When the stock is sold, the participant will have capital gain or loss equal to the sales proceeds less the fair market value of the stock on the vesting date. Any capital gain or loss will be long-term if the participant held the stock for more than one year and otherwise will be short-term.

A participant who makes a Section 83(b) election will recognize ordinary taxable income on the grant date equal to the fair market value of the shares as if the shares were unrestricted. If the shares subject to such election are subsequently forfeited, the recipient will not be entitled to any deduction, refund or loss for tax purposes with respect to the forfeited shares. When the stock is sold, the participant will have capital gain or loss equal to the difference between the sales proceeds and the fair market value of the stock on the date of grant. If the participant does not make a Section 83(b) election, then when the shares of Restricted Stock vest the participant will have compensation income equal to the fair market value of the stock on the vesting date less the purchase price.

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Restricted Stock Units.  A participant will not have income for federal income tax purposes, and the Company is not entitled to a deduction, upon the grant of a Restricted Stock Unit. Rather, upon the settlement of Restricted Stock Units, the recipient generally will be subject to compensation income taxed at ordinary income rates in an amount equal to the fair market value of any stock issued or cash paid on the settlement date less the purchase price, if any, and the Company generally will be entitled to a deduction equal to the amount of the ordinary income realized by the recipient. If the recipient receives shares of stock upon settlement then, when the stock is sold, the participant will have capital gain or loss equal to the sales proceeds less the fair market value of the stock on the settlement date. Any capital gain or loss will be long-term if the participant held the stock for more than one year and otherwise will be short-term.

Other Stock-Based Awards and Cash-Based Awards.  The tax consequences associated with any Other Stock-Based Award granted under the Amended Plan will vary depending on the specific terms of the Award. Among the relevant factors are whether or not the Award has a readily ascertainable fair market value, whether or not the Award is subject to forfeiture provisions or restrictions on transfer, the nature of the property to be received by the participant under the Award and the participant’s holding period and tax basis for the Award or underlying common stock.

Limitations on the Company’s Deductions.  Section 162(m) of the Code generally limits the Company’s deduction for compensation in excess of $1,000,000 paid to certain covered employees (generally our chief executive officer and three other highest-paid executive officers). Prior to 2018, compensation paid to covered employees was not subject to the deduction limitation if it was considered “qualified performance-based compensation” within the meaning of Section 162(m) of the Code. Such qualified performance-based compensation exception was repealed for tax years beginning in 2018. The compensation committee strives to grant certain Awards that will preserve deductibility to the extent reasonably practicable and to the extent consistent with its compensation objectives. However, the compensation committee believes that stockholder interests are best served by not restricting the compensation committee’s discretion and flexibility in structuring, determining and ultimately approving payment with respect to its awards to employees, even if the programs or such decisions may result in certain non-deductible compensation.

Consequences of a Change in Control.  If a change of control of the Company causes Awards under the Amended Plan to accelerate vesting or is deemed to result in the attainment of performance goals, the participants could, in some cases, be considered to have received “excess parachute payments,” which could subject participants to a 20% excise tax on the excess parachute payments and could result in a disallowance of the Company’s deductions under Section 280G of the Code.

Section 409A.  Section 409A of the Code (“Section 409A”) applies to compensation that individuals earn in one year but that is not paid until a future year. This is referred to as nonqualified deferred compensation. If deferred compensation covered by Section 409A meets the requirements of Section 409A, then Section 409A has no effect on the individual’s taxes. The compensation is taxed in the same manner as it would be taxed if it were not covered by Section 409A. If a deferred compensation arrangement does not meet the requirements of Section 409A, the compensation is subject to accelerated taxation in the year in which such compensation is no longer subject to a substantial risk of forfeiture and certain additional taxes, interest and penalties, including a 20% additional income tax. Awards of stock options, stock appreciation rights, restricted stock and restricted stock units under the Plan may, in some cases, result in the deferral of compensation that is subject to the requirements of Section 409A. Awards under the Plan are intended to comply with Section 409A, the regulations issued thereunder or an exception thereto. Notwithstanding, Section 409A of the Code may impose upon a participant certain taxes or interest charges for which the participant is responsible. Section 409A does not generally impose any penalties on the Company and does limit the Company’s deduction with respect to compensation paid to a participant.

New Plan Benefits

The Board has full discretion to determine the amount of any future awards to be made to participants under the Amended Plan, subject to the limits described above. Additionally, no awards have been made under the Amended Plan that are contingent upon stockholder approval of the Amended Plan. Therefore, it is not possible to determine the benefits or amounts that will be received by or allocated to participants under the Amended Plan.

40


 

The Board Of Directors Unanimously Recommends A Vote In Favor Of Proposal 3.

 

41


 

 

Equity Compensation Plan Information

The following table sets forth additional information as of December 31, 2020 about shares of our common stock that may be issued upon the exercise of options and other rights under our existing equity compensation plans and arrangements. The information includes the number of shares covered by, and the weighted-average exercise price of, outstanding options and other rights and the number of shares remaining available for future grants excluding the shares to be issued upon exercise of outstanding options, warrants, and other rights.

Plan Category

 

Number of securities to be issued upon exercise of outstanding options, warrants and rights

 

 

Weighted-average exercise price of outstanding options, warrants and rights

 

 

Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a))

 

 

 

(a)

 

 

(b)

 

 

(c)

 

Equity compensation plans approved by security holders

 

 

626,275

 

 

 

15.17

 

 

 

280,571

 

Equity compensation plans not approved by security holders

 

 

 

 

 

 

 

 

 

Total

 

 

626,275

 

 

 

15.17

 

 

 

280,571

 

 

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Proposal 4

Vote Upon the Tang Stockholder Proposal

In the Notice, Tang provided written notice to the Company of its intent to present a proposal at the Annual Meeting (the “Tang Stockholder Proposal”). The full text of the Tang Stockholder Proposal is set forth below. Your Board believes that the Tang Stockholder Proposal is not in the best interests of the Company and its stockholders.

Tang Stockholder Proposal

The Tang Stockholder proposal is reproduced below in its entirety:

RESOLVED, that Stockholders of Aptevo Therapeutics Inc. (“Aptevo”) request that, in light of the pending offer to acquire the outstanding stock of Aptevo for $50 per share, the Aptevo Board of Directors immediately commence a process to sell Aptevo to the highest bidder, consistent with its fiduciary duty to maximize stockholder value.

Tang Supporting Statement

In the Notice, Tang indicates as follows with respect to the Tang Stockholder Proposal (referred to in the below italicized text as the Sale Process Proposal):

The reason for presenting the Sale Process Proposal for a vote at the Annual Meeting is to allow stockholders to express their view on whether the Aptevo Board of Directors should immediately commence a sale process in order to maximize stockholder value. While Aptevo has retained Piper Sandler to assist and advise its board in an evaluation of strategic alternatives, the alternatives as outlined by Aptevo include remaining independent.

Background

On November 18, 2020, our Board received a written unsolicited, non-binding indication of interest from Tang Capital, in which Tang Capital proposed to acquire all of the outstanding shares of our common stock not already beneficially owned by Tang Capital for $50.00 per share in cash, subject to confirmatory due diligence conducted under a customary non-disclosure agreement (the “Tang Unsolicited Indication of Interest”). As the Company previously disclosed on March 31, 2021, the Board was open to exploring the indication of interest from Tang Capital and made earnest efforts to evaluate it. However, it was unable to do so because it was unable to reach agreement with Tang Capital on the terms of a customary non-disclosure agreement, including limitations on the use of confidential information by Tang Capital. Had agreement on the terms of a non-disclosure agreement been reached, it would have permitted the exchange of confidential information and would have enabled both parties to conduct due diligence. As of the date of the filing of this Proxy Statement, Tang Capital has not withdrawn the Tang Unsolicited Indication of Interest.

Board of Directors’ Response

The Board of Directors unanimously recommends a vote “AGAINST” the Tang Stockholder Proposal. The Board believes that running a sales process at this time is not in the best interests of the Company and its stockholders and may not ultimately maximize stockholder value. In this early stage of the Company’s development, the Board believes it is difficult for the market to accurately value the potential of Aptevo’s proprietary platform technologies and therapeutic candidates, which have just begun to demonstrate their effectiveness and potentially life-saving capabilities to the Company’s patients, stockholders and other stakeholders.

Moreover, the Board believes that running a sales process may cause increased uncertainty regarding the Company’s future, which could undermine confidence in the Company and adversely affect its relationships with employees, patients, and other stakeholders. This uncertainty could have an adverse impact on the Company and lead to a decline in stockholder value. This impact could be particularly severe if the Company were to publicly announce a sales process and subsequently does not receive an offer to acquire the Company that the Board deems to be in the best interest of the Company and its stockholders.

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Moreover, the Tang Stockholder Proposal seeks approval for the Board to immediately commence a process to sell Aptevo to the highest bidder, with seemingly no consideration of the nature, timing, or amount of value of any bids that are received.  The Tang Supporting Statement further suggests that remaining independent should not be one of the strategic alternatives included in the process.  The Aptevo Board believes that any review of strategic alternatives should include a review of whether selling the Company is a better alternative for the Company and its stockholders than its standalone operating plan and that any offers received for the Company should be compared to remaining independent, consistent with the Board’s fiduciary duties to maximize stockholder value.

In addition, the Board believes that a process designed to result in a sale of the Company to the highest bidder at a time when the market may not be able to fully appreciate the intrinsic value of the Company could put the Board in a weakened bargaining position and restrict the Board’s ability to examine all strategic alternatives. In this regard, a Company’s market value can be significantly different from its intrinsic or long-term value. When there is such a value gap, the Board needs to have flexibility to develop, select and implement the best strategic alternatives to unlock stockholder value and may determine that the best course of action for the company is to remain independent.

The Board continually monitors the Company’s business and strategies, as well as developments in the business environment in which the Company operates. This puts the Board in the best and most informed position to consider all the options that may be available to the Company, including when it would be prudent to pursue a sales process.

The Board recognizes its fiduciary duties to the stockholders and is focused on stockholder value creation. The Board will continue to carefully evaluate any indications of interest and proposals for strategic transactions that it receives from current stockholders or otherwise, in line with its fiduciary duties and commitment to acting in the best interests of all of the Company’s stockholders. However, it does not believe that running a sales process to sell the Company to the highest bidder is in the best interests of the Company and its stockholders at this time.

Commencing a process to sell any publicly-traded company should not be undertaken lightly. Given the current stage of the Company’s development, the Board does not believe that running a sales process is in the best interests of the Company and its stockholders at this time. Moreover, the Board is concerned about the effect putting the Company up for sale would have on the Company’s patients, stockholders and other stakeholders and ultimately on its ability to preserve and enhance long-term stockholder value. As such, the Board unanimously recommends voting “AGAINST” the Tang Stockholder Proposal.

Voting on the Proposal

To be approved, the Tang Stockholder Proposal, if properly presented at the Annual Meeting, must receive “For” votes from a majority of the votes cast by the holders of all of the shares of common stock present or represented by proxy at the meeting and voting on such proposal. Abstentions and broker non-votes, if any, will have no effect on this proposal. Given the existing proxy contest and the Tang Unsolicited Indication of Interest, the Board, in considering the outcome of the stockholder vote on the Tang Stockholder Proposal, will also consider whether the Tang Stockholder Proposal was approved by a majority of the votes cast by the holders of all of the shares of common stock present or represented by proxy at the meeting and voting on such proposal, other than those cast by Tang Capital and Aptevo’s Board and management.

Board Recommendation

Your Board unanimously recommends a vote “AGAINST” this proposal. In addition, because the Board does not support this proposal, it does not intend to present it in the event that the proposal is not presented at the Annual Meeting by Tang Capital.

The Board of Directors Unanimously Recommends a Vote Against Proposal 4.

 

 

 

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Proposal 5

Approval of amendments to our Amended and Restated Certificate of Incorporation to declassify our Board

Our Board has adopted, subject to stockholder approval, a proposal to amend our Amended and Restated Certificate of Incorporation to declassify our Board beginning with the 2022 annual meeting of stockholders in which all nominees will stand for election for one-year terms expiring at the next annual meeting of stockholders, rather than three-year terms (the “Declassification Proposal”). Our Board currently consists of seven directors divided into three classes (Class I, Class II and Class III), and directors in each class are elected to serve three-year staggered terms that expire in successive years.

Supporters of board classification believe that staggered boards promote continuity, stability and a long-term orientation among directors, as well as protect the company from an unsolicited, hostile takeover proposal in which the entire board could otherwise be replaced all at once in a single election. Although these are important benefits, there is a strong sentiment that classified boards reduce stockholders’ ability to hold directors accountable because a classified structure does not enable stockholders to evaluate directors’ performances annually. Moreover, classified boards arguably limit the most effective method by which stockholders can influence corporate governance policies and hold management accountable. Proponents of declassified boards also contend that a classified structure can work as an impediment to value enhancing bids and are associated with a reduction in a company’s valuation, while declassified boards promote board diversity and refreshment and provide companies with the flexibility and agility to modify board composition in response to evolving skill set and expertise needs.

In light of the foregoing considerations, having a declassified board composed of annually elected directors is viewed as a corporate governance best practice. Accordingly, the general governance trend has been towards declassification, with 88% of the S&P 500 companies and 59% of Russell 3000 companies having annually elected boards. Institutional stockholders and proxy advisory firms also strongly support declassification. For example, both Institutional Shareholder Services Inc. (ISS) and Glass, Lewis & Co. generally recommend voting in favor of proposals to repeal classified boards and to elect all directors annually.

Our Nominating and Governance Committee and Board regularly consider a broad range of corporate governance matters and are committed to adopting governance practices that are beneficial to the Company and our stockholders. In reaching its determination, our Board carefully weighed the merits of retaining the classified board structure versus declassifying our Board and considered the growing support for and trend towards the annual election of directors. Our Board ultimately concluded that the benefits to our stockholders of annual elections for each director outweigh the benefits of keeping our Board classified. Consequently, our Board concluded that the Declassification Proposal is in the best interests of the Company and our stockholders, and has unanimously recommended that stockholders vote in favor of the Declassification Proposal.

If stockholders approve the Declassification Proposal, then the terms of all incumbent directors will immediately expire at the 2022 annual meeting of stockholders. Stockholders would then be able to vote for nominees to the declassified Board at the 2022 annual meeting, and each elected director will hold office for a one-year term expiring at the 2023 annual meeting of stockholders. Any director elected to fill any vacancy in our Board will hold office until the next annual meeting.

Under Delaware law, members of a classified board of directors may be removed only for cause unless otherwise provided in the company’s certificate of incorporation. Currently, our Amended and Restated Certificate of Incorporation provides that our directors can be removed only for cause, and only by the affirmative vote of the holders of capital stock representing at least seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in any annual election of directors. If the Declassification Proposal is approved by our stockholders, our Amended and Restated Certificate of Incorporation would also be amended to provide that directors may be removed, with or without cause.

If the Declassification Proposal is approved, we will file a certificate of amendment to our Amended and Restated Certificate of Incorporation, set forth in Appendix C to this Proxy Statement, with the Secretary of State of Delaware promptly following the Annual Meeting and make conforming changes to the Company’s Amended and

45


 

Restated Bylaws. If the Declassification Proposal is not approved, our Board will remain classified and the proposed changes to our Amended and Restated Certificate of Incorporation will not be adopted. This description of the proposed amendments to Article NINTH of our Amended and Restated Certificate of Incorporation is only a summary and is qualified in its entirety by reference to, and should be read in conjunction with, the full text of the Amended and Restated Certificate of Incorporation and the proposed amendments set forth in Appendix C.

The Board of Directors Unanimously Recommends a Vote in Favor of Proposal 5.

 

 

 

 

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Report of the Audit Committee of the Board

The Audit Committee has reviewed and discussed the audited financial statements for the fiscal year ended December 31, 2020 with management of the Company. The Audit Committee has discussed with the independent registered public accounting firm the matters required to be discussed by Auditing Standard No. 1301, Communications with Audit Committees, as adopted by the Public Company Accounting Oversight Board (“PCAOB”). The Audit Committee has also received the written disclosures and the letter from the independent registered public accounting firm required by applicable requirements of the PCAOB regarding the independent accountants’ communications with the Audit Committee concerning independence, and has discussed with the independent registered public accounting firm the accounting firm’s independence. Based on the foregoing, the Audit Committee has recommended to the Board of Directors that the audited financial statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020.

Grady Grant, III

Zsolt Harsanyi, Ph.D.

Daniel Abdun-Nabi

Barbara Lopez Kunz

The material in this report is not “soliciting material,” is not deemed “filed” with the Commission and is not to be incorporated by reference in any filing of the Company under the Securities Act or the Exchange Act, whether made before or after the date hereof and irrespective of any general incorporation language in any such filing.

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Security Ownership of
Certain Beneficial Owners and Management

The following table sets forth certain information regarding the ownership of the Company’s common stock as of April 15, 2021 by: (i) each director and nominee for director; (ii) each of the executive officers named in the Summary Compensation Table; (iii) all executive officers and directors of the Company as a group; and (iv) all those known by the Company to be beneficial owners of more than five percent of its common stock. Unless otherwise indicated, the address of the individuals and entities below is c/o Aptevo Therapeutics Inc., 2401 4th Ave. Suite 1050, Seattle, Washington 98121.

 

 

 

Beneficial Ownership(1)

 

 

Number of Shares

 

 

Percent of Total

Tang Capital Partners, LP (2)

 

 

1,760,000

 

 

 

39.6

%

 

RTW Investments, LP (3)

 

 

288,236

 

 

 

6.5

%

 

Renaissance Technologies LLC (4)

 

 

254,423

 

 

 

5.7

%

 

Fuad El-Hibri (Director) (5)

 

 

212,137

 

 

 

4.8

%

 

Marvin White (Officer & Director) (6)

 

 

48,972

 

 

 

1.1

%

 

Jane Gross, Ph.D. (Officer) (7)

 

 

23,029

 

 

*

 

 

Jeffrey G. Lamothe (Officer) (8)

 

 

21,447

 

 

*

 

 

Daniel J. Abdun-Nabi (Director) (9)

 

 

8,746

 

 

*

 

 

John E. Niederhuber, M.D. (Director) (9)

 

 

1,737

 

 

*

 

 

Zsolt Harsanyi (Director) (9)

 

 

4,506

 

 

*

 

 

Grady Grant III (Director) (9)

 

 

1,649

 

 

*

 

 

Barbara Lopez Kunz (Director) (9)

 

 

1,649

 

 

*

 

 

All executive officers and directors as a group (9 persons) (10)

 

 

323,782

 

 

 

7.3

%

 

 

*

Less than one percent.

(1)

This table is based upon information supplied by officers, directors and principal stockholders and Schedules 13D and 13G, as adjusted to reflect reverse stock split on March 26, 2020, filed with the SEC.  Unless otherwise indicated in the footnotes to this table and subject to community property laws where applicable, the Company believes that each of the stockholders named in this table has sole voting and investment power with respect to the shares indicated as beneficially owned.  Applicable percentages are based on 4,449,535 shares outstanding on April 15, 2021, adjusted as required by rules promulgated by the SEC. Each person is deemed to be the beneficial owner of shares which may be acquired within sixty days of April 15, 2021 through the exercise of options, warrants, and other rights, if any.

(2)

Based on information provided in Amendment No. 2 to Schedule 13D that was filed with the SEC on February 9, 2021 by Tang Capital Partners, LP, Tang Capital Partners, LP is the beneficial owner of 1,760,000 shares and has shared voting power with respect to 1,760,000 shares and shared dispositive power with respect to 1,760,000 shares of Aptevo’s common stock. The address for Tang Capital Partners LP is 4747 Executive Drive, Suite 210, San Diego, CA 92121.

(3)

Based on information provided in Amendment No. 1 to Schedule 13G that was filed with the SEC on February 12, 2021 by RTW Investments, LP, RTW Investments, LP is the beneficial owner of 288,236 shares and has shared voting power with respect to 288,236 shares and shared dispositive power with respect to 288,236 shares of Aptevo’s common stock. The address for RTW Investments, LP is 40 10th Avenue, Floor 7, New York, New York 10014.

(4)

Based on information provided in Amendment No. 2 Schedule 13G that was filed with the SEC on February 11, 2021 by Renaissance Technologies LLC, Renaissance Technologies LLC is the beneficial owner of 254,423 shares and has sole voting power with respect to 237,732 shares and sole dispositive power with respect to 254,423 shares of Aptevo’s common stock. The address for Renaissance Technologies, LLC is 800 Third Avenue, New York, New York 10022.

(5)

Mr. El-Hibri has a beneficial ownership interest in 212,137 shares of our common stock through his direct holdings, shares held of record by BioVac, L.L.C. and Intervac. L.L.C., each of which Mr. El-Hibri serves as the general manager, which represent approximately 4.8% of our outstanding common stock. In accordance with the rules and regulations of the SEC, Mr. El-Hibri’s beneficial ownership is deemed to consist of the following shares of our common stock:

 

 

54,434 shares held by BioVac, L.L.C.;

 

76,445 shares held by Intervac, L.L.C.;

 

80,323 shares held directly by Mr. El-Hibri and his wife as tenants by the entirety; and

 

935 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.

 

(6)

Includes 28,000 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.

(7)

Includes 15,202 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.

(8)

Includes 16,088 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.

(9)

Includes 4,675 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.

(10)

Includes 64,900 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.

48

 


 

Delinquent Section 16(a) Reports

Section 16(a) of the Exchange Act requires the Company’s directors and executive officers, and persons who own more than ten percent of a registered class of the Company’s equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of common stock and other equity securities of the Company. Officers, directors and greater than ten percent stockholders are required by SEC regulation to furnish the Company with copies of all Section 16(a) forms they file.

To our knowledge, based solely on our review of such reports filed on EDGAR and the written representations of reporting persons, we believe that for fiscal 2020, all required reports were filed on a timely basis under Section 16(a), except for Messrs. Abdun-Nabi, El-Hibri, Grant, Harsanyi, Kunz and Niederhuber each had one Form 4 relating to the award of stock options on July 2, 2020 that was filed late on February 17, 2021.

49


 

 

Executive Officers

Set forth below is information regarding the positions, ages and business experience of each of our executive officers as of May 10, 2021.  Biographical information with regard to Mr. White is presented under “Proposal 1—Election of Directors” in this Proxy Statement.

 

Name

 

Age

 

Position(s)

Marvin L. White

 

59

 

Chief Executive Officer and President

Jeffrey G. Lamothe

 

55

 

Senior Vice President and Chief Financial Officer

Jane Gross, Ph.D.

 

64

 

Senior Vice President and Chief Scientific Officer

 

Jeffrey G. Lamothe has served as our Senior Vice President and Chief Financial Officer since July 2016. He previously served as Emergent’s Vice President Finance, Biosciences Division. Mr. Lamothe assumed this role in February 2014 when Emergent concluded the acquisition of Cangene Corporation (“Cangene”), where he was Chief Financial Officer. Mr. Lamothe assumed the role of Chief Financial Officer of Cangene in August 2012. Prior to that, Mr. Lamothe was the Chief Financial Officer for Smith Carter Architects and Engineers Incorporated, a position which he held from January 2010 until July 2012. He also previously served as President and Chief Executive Officer of Kitchen Craft Cabinetry after occupying the position of VP Finance and Chief Financial Officer with that organization. Mr. Lamothe’s other past experience includes serving as Chief Financial Officer for Motor Coach Industries and he has held various roles at James Richardson & Sons, Limited and Ernst & Young LLP. Mr. Lamothe earned his Bachelor of Commerce (honors) degree from the University of Manitoba and is a Chartered Accountant/CPA.

 

Jane Gross, Ph.D. has served as our Senior Vice President and Chief Scientific Officer since September 2016.  Dr. Gross served as VP of Research and Non-Clinical Development at Aptevo from July 2016 to September 2016. Dr. Gross leads research and non-clinical development focusing on the development of novel protein therapeutics based on the ADAPTIR™ and ADAPTIR-FLEX™ platform, a position she has held for the last five years at Aptevo. She leads research efforts in molecular biology and protein engineering, immunology, protein and cell sciences, pharmacology and translational research for clinical development. Dr. Gross has a Ph.D. in Immunology and over twenty-five years of experience in the discovery and development of novel protein therapeutics in autoimmune, infectious disease and oncology indications. Prior to joining Emergent, Dr. Gross served as VP of Immunology Research at ZymoGenetics Inc., where she led efforts in discovery and development of therapeutics from novel genes for treatment of AIID and cancer. Dr. Gross holds Ph.D. in Immunology from University of California at Berkeley.

 

 

50

 


 

 

Executive Compensation

Summary Compensation Table

The following table shows for 2019 and 2020 compensation awarded to or paid to, or earned by, the Company’s Chief Executive Officer and its two other most highly compensated executive officers as of December 31, 2020 (the “named executive officers”).

 

Name and Principal Position

 

Year

 

Salary(1)

 

 

Bonus(2)

 

 

Option

Awards(3)

 

 

Non-Equity Incentive Plan Compensation(4)

 

 

All Other

Compensation(5)

 

 

Total

 

Marvin L. White

 

2020

 

$

497,743

 

 

 

-

 

 

$

111,560

 

 

$

353,202

 

 

$

8,550

 

 

$

971,055

 

  Chief Executive Officer and President

 

2019

 

$

547,300

 

 

 

-

 

 

$

194,281

 

 

$

224,071

 

 

$

8,400

 

 

$

974,052

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Jeffrey G. Lamothe

 

2020

 

$

354,865

 

 

 

-

 

 

$

54,899

 

 

$

201,452

 

 

$

8,550

 

 

$

619,766

 

  Senior Vice President and Chief Financial Officer

 

2019

 

$

390,196

 

 

 

-

 

 

$

107,382

 

 

$

135,214

 

 

$

8,400

 

 

$

641,192

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Jane Gross, Ph.D.

 

2020

 

$

322,358

 

 

$

20,000

 

 

$

54,627

 

 

$

182,998

 

 

$

8,550

 

 

$

588,533

 

  Senior Vice President and Chief Scientific Officer

 

2019

 

$

354,452

 

 

 

-

 

 

$

102,269

 

 

$

122,828

 

 

$

8,400

 

 

$

587,949

 

 

(1)

Amounts reflect a temporary 20% reduction in base salary, which was effective from October 2019 through July 2020.

(2)

Amount represents a one-time cash bonus.

(3)

The amounts in the “Option Awards” column reflect grant date fair values determined in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 718 and the incremental fair value calculated in accordance with FASB ASC Topic 718 of stock options that were repriced and granted as part of the Exchange Program (as defined below), using the assumptions described in Note 11 to the combined financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2020.

(4)

Amounts represent annual bonuses, the payout of which is based on the attainment of corporate performance goals as determined by the Compensation Committee.

(5)

Amounts represent 401(k) matching contributions, paid-time-off (PTO) payout, and catastrophic bank payout.

 

Agreements with Named Executive Officers

The Company does not have any employment contracts with its named executive officers; however, the Company does have an Amended Senior Management Severance Plan (the “Severance Plan”) that each of our named executive officers participates in. For more information regarding the Severance Plan, see the section entitled “Severance and Change in Control.”

Base Salaries and Target Bonuses

The Compensation Committee (the “Committee”) approved annual base salaries and target bonuses for 2020. Annual target bonuses are calculated as a percentage of the named executive officer’s base salary and payout of the annual target bonuses is based on the achievement of pre-established corporate performance goals as determined by the Committee, as well as individual performance and other factors deemed relevant by the Committee. For 2020, the Committee established corporate performance goals that were challenging, but attainable. They included goals related to Aptevo’s business, such as clinical trial enrollment, as well as strategic milestones and financial metrics. The following table sets forth the base salary, target bonus percentages, and target bonus amounts for 2020:

51


 

 

Name and Title

 

2020 Base

Salary (1)

 

 

2020 Target

Bonus

Percentage

 

 

2020 Target

Bonus

 

Marvin L. White

    Chief Executive Officer and President

 

$

497,743

 

 

 

50

%

 

$

282,562

 

Jeffrey G. Lamothe

    Senior Vice President and Chief Financial Officer

 

$

354,865

 

 

 

40

%

 

$

161,161

 

Jane Gross, Ph.D.

    Senior Vice President and Chief Scientific Officer

 

$

322,358

 

 

 

40

%

 

$

146,398

 

 

(1)

Amounts reflect a temporary 20% reduction in base salary, which was approved by the Board in an effort to preserve cash reserves and effective from October 2019 through July 2020.

 

Consistent with historic practice, in the first quarter of 2021, the Committee reviewed the Company’s 2020 performance against the corporate performance goals. After taking into consideration the challenges and management’s response thereto, as well as individual performance, the Committee determined to pay out the annual target bonuses at 125% for each named executive officer.

 

Additionally, in December 2020, Dr. Gross received a one-time cash bonus in the amount of $20,000. The Compensation Committee approved the one-time cash bonus as recognition for Dr. Gross’s continued service and contributions to the Company during the fourth quarter of 2020.

Option Awards

The Committee approved the following option grants to our named executive officers in 2020:

Name and Title

 

Options (# of shares) (1)

 

Marvin L. White

 

 

 

 

  Chief Executive Officer and President

 

 

21,657

 

Jeffrey G. Lamothe

 

 

 

 

  Senior Vice President and Chief Financial Officer

 

 

9,628

 

Jane Gross, Ph.D.

 

 

 

 

  Senior Vice President and Chief Scientific Officer

 

 

9,628

 

(1) Adjusted to reflect the impact of the 14-to-1 reverse stock split of our common stock effected on March 26, 2020.

The option awards were granted to the named executive officers on February 18, 2020 and vest over three years: one-third on February 18, 2021, one-third on February 18, 2022, and the final one-third on February 18, 2023.

Reverse Stock Split.  On March 26, 2020, the Company filed a Certificate of Amendment of Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware to effect a 1-for-14 reverse stock split of the Company’s outstanding common stock. As a result of the reverse stock split, proportionate adjustments were made to the per share exercise price and the number of shares issuable upon the exercise of all then outstanding stock options.

Stock Option Exchange Program.  On June 29, 2020, Aptevo commenced a voluntary employee and directors stock option exchange program (the “Exchange Program”) to permit the Company’s eligible employees, directors and certain consultants to exchange some or all of their eligible outstanding options (the “Original Options”) to purchase the Company’s common stock with an exercise price greater than or equal to $21.00 per share, whether vested or unvested, for a lesser number of new stock options (the “New Options”) with an exercise price equal to $8.56, which was the closing price of our stock on July 27, 2020. In accordance with the terms and conditions of the Exchange Program, we closed the exchange program and accepted all exchanged outstanding Original Options for New Options on July 27, 2020. The stock option exchange program was approved at the Company’s 2020 Annual Meeting of Stockholders on May 27, 2020.

52


 

 

Outstanding Equity Awards at December 31, 2020

The following table sets forth information regarding unexercised Aptevo stock options and unvested restricted stock unit awards outstanding as of December 31, 2020 for each of our named executive officers. All share and per share information have been adjusted to reflect the impact of the 14-to-1 reverse stock split of our common stock effected on March 26, 2020.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2020 Outstanding Equity Awards at Fiscal Year-End

 

 

 

Options Awards

 

 

 

Number of Securities Underlying

 

 

Exercise

 

 

Option Award

 

Name

 

Exercisable

 

 

Unexercisable

 

 

Price

 

 

Expiration Date

 

Marvin White

 

 

13,563

 

(1)

 

 

 

$

8.06

 

 

11/1/2029

 

 

 

 

 

 

 

21,657

 

(2)

$

6.97

 

 

2/18/2030

 

 

 

 

1,804

 

(3)

 

3,610

 

(3)

$

8.56

 

 

7/27/2030

 

 

 

 

2,406

 

(4)

 

1,203

 

(4)

$

8.56

 

 

7/27/2030

 

 

 

 

 

 

 

5,728

 

(5)

$

8.56

 

 

7/27/2030