Are ATOS Investors Really This Ignorant?
On Friday, Atossa Genetics issued a Proxy Statement for its annual meeting, to be held on May 16, 2019. Shareholders are being asked to vote on a number of proposals. This post focuses on PROPOSAL NO. 3, TO APPROVE THE 2019 AMENDMENTS TO THE ATOSSA GENETICS INC 2010 STOCK OPTION AND INCENTIVE PLAN AND TO INCREASE THE NUMBER OF SHARES AUTHORIZED FOR ISSUANCE UNDER THE PLAN BY 3,600,000.
What the Proxy says: Assuming adoption of this Proposal No. 3, there will be a total of approximately 3,836,430 shares available for issuance under the 2010 Plan, which equals approximately 26.28% of the fully diluted common stock outstanding on March 25, 2019 including convertible preferred stock and common stock issuable upon exercise of outstanding options and warrants as of March 25, 2019.
What the Proxy doesn’t say: 3,836,430 shares equals 42.04% of the 9,124,447 shares of common stock that are issued and outstanding as of April 11, 2019.
What the Proxy says: Stockholders are being asked to approve “Modification of the overall limitation on options granted to any one individual not to exceed 20,000,000 shares” and “Modification of the limitations on options granted to any one individual to not exceed 2,500,000 shares per year”.
What the Proxy doesn’t say: The number of shares that the 20,000,000 and 2,500,000, respectively, replaces. Given the total number of shares available under the 2010 Plan, an approval of these modifications would in essence be the same as deleting the limitations in their entirety; the new numbers are simply too big to have an effect.
What the Proxy says: On January 13, 2019, the Company granted options to purchase a total of 3,100,000 shares of common stock to the Chief Executive Officer and Chief Financial Officer with an exercise price equal to the last reported sale price of the shares of common stock on the NASDAQ Capital Market on the date of grant.
What the Proxy doesn’t say: The stock price on the date of the grant was $1.36. At Friday’s closing price of $2.98, this is effectively a $5,022,000 payout. At the stock’s 52 week high of $7.39, the payout totals $18,693,000.
What the Proxy says: Compensation awards made after November 2, 2017, generally are not eligible for the "performance-based compensation" exception and will not be deductible to the extent that they cause the compensation of the affected executive officer to exceed $1 million in any year.
What the Proxy doesn’t say: The stock options granted to the executive officers will likely cause executive compensation to exceed the $1 million dollar annual limit and will therefore be non-deductible to the company.
What the Proxy says: THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSAL NO. 3
What the Proxy doesn’t say: CAREFUL READING RESULTS IN A VOTE “AGAINST” PROPOSAL NO. 3
