agrx_Current Folio_Proxy

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 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 under §240.14a‑12

 

AGILE THERAPEUTICS, INC.

(Name of Registrant as Specified In Its Charter)

 

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

 

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.

 

(1)

Title of each class of securities to which transaction applies:

 

 

 

 

(2)

Aggregate number of securities to which transaction applies:

 

 

 

 

(3)

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

 

 

 

 

(4)

Proposed maximum aggregate value of transaction:

 

 

 

 

(5)

Total fee paid:

 

 

    $

Fee paid previously with preliminary materials.

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

 

(1)

Amount Previously Paid:

 

 

 

 

(2)

Form, Schedule or Registration Statement No.:

 

 

 

 

(3)

Filing Party:

 

 

 

 

(4)

Date Filed:

 

 

 

 

 

 

 

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April 24, 2020

You are cordially invited to attend the 2020 Annual Meeting of Stockholders of Agile Therapeutics, Inc. (the “Annual Meeting”), which, in light of the COVID-19 pandemic and related public health concerns, will be held virtually via the Internet at www.virtualshareholdermeeting.com/AGRX2020 on Tuesday,  June 9, 2020 at 9:00 a.m. local time.

Details regarding admission to the Annual Meeting and the business to be conducted are described in the accompanying proxy materials. Also included is a copy of our 2019 Annual Report. We encourage you to read this information carefully.

Your vote is important. Whether or not you plan to attend the virtual Annual Meeting, we hope you will vote as soon as possible. You may vote prior to the Annual Meeting over the Internet, by telephone or by mailing a proxy card, if you have requested one. Voting over the Internet, by telephone or by written proxy will ensure your representation at the Annual Meeting regardless of whether or not you attend virtually. Please review the instructions in the proxy materials you received in the mail regarding each of these voting options.

Thank you for your ongoing support of Agile.

 

Very truly yours,

 

Picture 3

 

 

Al Altomari

 

Chairman and Chief Executive Officer

 

 

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AGILE THERAPEUTICS, INC.

101 Poor Farm Road

Princeton, New Jersey 08540

NOTICE OF

2020 ANNUAL MEETING OF STOCKHOLDERS


Time and Date:

Tuesday, June 9, 2020 at 9:00 a.m. local time.

Place:

In light of the COVID-19 pandemic and related public health concerns, we will hold the Annual Meeting virtually via the Internet at www.virtualshareholdermeeting.com/AGRX2020

Items of Business:

(1)

Elect two directors named in the proxy statement accompanying this notice to serve as Class III directors until the 2023 Annual Meeting of Stockholders and until their successors are duly elected and qualified.

 

(2)

Conduct a non-binding advisory vote on the 2019 compensation of our named executive officers.

 

(3)

Conduct a non-binding advisory vote on the frequency of future stockholder votes on the compensation of our named executive officers.

 

(4)

Ratify the appointment of Ernst & Young LLP as Agile Therapeutics, Inc.’s independent registered public accounting firm for the year ending December 31, 2020.

 

(5)

Transact such other business as may properly come before the Annual Meeting or any adjournment thereof.

 

These items of business are more fully described in the proxy statement accompanying this notice.

Adjournments and Postponements:

Any action on the items of business described above may be considered at the Annual Meeting at the time and on the date specified above or at any time and date to which the Annual Meeting may be properly adjourned or postponed.

Record Date:

You are entitled to vote if you were a stockholder of record as of the close of business on April 20, 2020.

Voting:

Your vote is very important. Whether or not you plan to attend the virtual Annual Meeting, we encourage you to read the proxy statement and vote on the Internet or by telephone or submit your proxy card, if you have requested one, as soon as possible. For specific instructions on how to vote your shares, please refer to the section herein entitled “Questions and Answers About Procedural Matters.”

 

 

By order of the board of directors,

 

Picture 4

 

 

Al Altomari

 

Chairman and Chief Executive Officer

 

This notice of annual meeting, proxy statement and accompanying form of proxy card are being made available on or about April 24, 2020

 

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SUMMARY INFORMATION

To assist you in reviewing the proposals to be acted upon at the Annual Meeting, below is a summary of each proposal and a high‑level overview of our corporate governance structure. The information below is only a summary. For more information, please review the complete proxy statement and our 2019 Annual Report in full.

PROXY SUMMARY

Summary of Stockholder Voting Matters

 

 

 

 

 

 

 

 

For More

 

Board of Directors

Proposals

    

Information

    

Recommendation

1:

Election of Class III Directors for Three Year Term Expiring in 2023

 

Page 10

FOR Each Nominee

 

 

 

 

 

 

2:

Conduct a Non-binding Advisory Vote on the 2019 Compensation of our Named Executive Officers

 

Page 34

FOR

 

 

 

 

 

 

3:

Conduct a Non-binding Advisory Vote on the Frequency of Future Stockholder Votes on the Compensation of our Named Executive Officers

 

Page 35

FOR Every Year

 

 

 

 

 

 

4:

Ratification of Appointment of Ernst & Young LLP as our Independent Registered Public Accounting Firm for 2020

 

Page 36

FOR

 

Our Director Nominees

You are being asked to vote on the election of Sharon Barbari and Ajit S. Shetty, Ph.D. as Class III directors to serve, each for a three‑year term, expiring at our 2023 Annual Meeting of Stockholders. The number of members of our board is currently set at seven members and is divided into three classes, each of which has a three‑year term. Class I consists of three directors, and each of Class II and Class III consist of two directors.

The term of office of our Class III directors expires at the Annual Meeting. We are nominating Sharon Barbari and Ajit S. Shetty, Ph.D. for election at the Annual Meeting to serve until the 2023 Annual Meeting of Stockholders and until their successors, if any, are elected or appointed, or their earlier death, resignation, retirement, disqualification or removal. Ms. Barbari has been nominated to replace Abhijeet Lele, who will not stand for re-election at the Annual Meeting, and, accordingly, will cease to serve as a director following the Annual Meeting.  Directors are elected by a plurality of the votes cast by our stockholders at the Annual Meeting. The two nominees receiving the most FOR votes (among votes properly cast virtually during the meeting or by proxy) will be elected. If no contrary indication is made, shares represented by executed proxies will be voted FOR the election of Sharon Barbari and Ajit S. Shetty, Ph.D. Each nominee has agreed to serve as a director if elected, and we have no reason to believe that any nominee will be unable to serve.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Committee

 

Other Current

 

 

 

 

Director

 

 

 

 

 

Memberships

 

Public Company

Name

    

Age

    

Since

    

Occupation

    

Independent

    

AC

    

CC

    

NG

    

ST

    

Boards

Sharon Barbari

 

65

 

 

 

Chief Financial Officer, Cytokinetics, Inc. (ret.)

 

Yes

 

 

 

 

 

 

 

 

 

MenloTherapeutics, Inc.; Sonoma Pharmaceuticals, Inc.

Ajit S. Shetty

 

73

 

2016

 

Corporate Vice President Enterprise Supply Chain of Johnson & Johnson (ret.)

 

Yes

 

 

 

 

 

   M

 

   M

 

Actinium Pharmaceuticals, Inc.


AC = Audit Committee     CC = Compensation Committee     NG = Nominating and Corporate Governance Committee

ST = Science and Technology Committee     C = Chair     M = Member

 

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Corporate Governance Summary Facts

The following table summarizes our current board structure and key elements of our corporate governance framework:

 

 

 

Governance Item

    

 

Size of Board (set by the Board)

 

7

Number of Independent Directors

 

6

Chairman of the Board

 

Al Altomari

Lead Independent Director

 

Abhijeet Lele(1)

All non‑employee directors and board committee members are independent

 

Yes

Board and Committee Self‑Evaluations

 

Annual

Review of Independence of Board and Committees

 

Annual

Independent Directors Meet Without Management Present

 

Yes

Voting Standard for Election of Directors in Uncontested Elections

 

Plurality

Board oversees succession planning for the CEO

 

Yes

Directors may retain their own independent advisors at our expense

 

Yes

Directors have access to all levels of management and are provided with opportunities to meet with members of management on a regular basis

 

Yes

Corporate Guidelines

 

Yes


(1)

– We intend to appoint Seth H.Z. Fischer as Lead Independent Director following the Annual Meeting.

 

 

 

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TABLE OF CONTENTS

 

Page

QUESTIONS AND ANSWERS ABOUT PROCEDURAL MATTERS 

1

Annual Meeting 

1

Stock Ownership 

2

Quorum and Voting 

3

Stockholder Proposals and Director Nominations 

7

Additional Information about the Proxy Materials 

8

IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE STOCKHOLDER MEETING TO BE HELD ON JUNE 9, 2020 

9

PROPOSAL ONE—ELECTION OF DIRECTORS 

10

General 

10

Nominees 

10

Information Regarding the Nominees and Other Directors 

10

CORPORATE GOVERNANCE 

15

Corporate Governance Materials and Practices 

15

Code of Business Conduct and Ethics 

15

Hedging and Pledging Policies 

15

Board Composition 

15

Director Independence 

16

Board Leadership Structure 

16

Board Committees 

16

Meetings of the Board of Directors 

20

Board Oversight of Risk 

20

Director Nomination Process 

20

Director Compensation 

21

Limitation of Liability and Indemnification Arrangements 

22

Stockholder Communications with the Board of Directors 

23

EXECUTIVE OFFICERS 

24

EXECUTIVE COMPENSATION 

25

Summary Compensation Table 

25

Narrative Explanation of Certain Aspects of the Summary Compensation Table 

26

Outstanding Equity Awards as of December 31, 2019 

28

Severance and Change in Control Benefits 

30

Employee Benefits and Perquisites 

33

PROPOSAL TWO—NON-BINDING ADVISORY VOTE ON THE 2019 COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS 

34

PROPOSAL THREE – NON-BINDING ADVISORY VOTE ON THE FREQUENCY OF FUTURE ADVISORY VOTES ON THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS 

35

PROPOSAL FOUR – RATIFICATION OF THE APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM 

36

General 

36

Principal Accounting Fees and Services 

36

Pre‑Approval of Audit and Non‑Audit Services 

37

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT 

38

EQUITY COMPENSATION PLAN INFORMATION 

40

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS 

40

AUDIT COMMITTEE REPORT 

42

OTHER MATTERS 

43

 

 

 

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AGILE THERAPEUTICS, INC.

101 Poor Farm Road

Princeton, New Jersey 08540

PROXY STATEMENT FOR 2020 ANNUAL MEETING OF STOCKHOLDERS


This proxy statement is furnished in connection with the solicitation of proxies by our board of directors for use at the 2020 Annual Meeting of Stockholders, or Annual Meeting, to be held at virtually via the Internet at www.virtualshareholdermeeting.com/AGRX2020 at 9:00 a.m. local time on Tuesday, June 9, 2020, and any postponements or adjournments thereof.

 

In light of the COVID-19 pandemic and related public health concerns, we will hold the Annual Meeting in a virtual format only, via the Internet, with no physical in-person meeting.  Our stockholders will be able to attend, vote, and submit questions at the Annual Meeting by visiting www.virtualshareholdermeeting.com/AGRX2020.  Further information about how to attend the Annual Meeting online, vote your shares online during the meeting and submit questions during the meeting is included in this proxy statement. 

 

As used in this proxy statement, the terms “Agile,” “we,” “us,” and “our” mean Agile Therapeutics, Inc. unless the context indicates otherwise.

 

QUESTIONS AND ANSWERS ABOUT PROCEDURAL MATTERS

Annual Meeting

Q:            Why am I receiving these proxy materials?

A:          Our board of directors is providing these proxy materials to you in connection with the solicitation of proxies for use at the Annual Meeting to be held virtually on Tuesday, June 9, 2020 at 9:00 a.m. local time, and at any adjournment or postponement thereof, for the purpose of considering and acting upon the matters set forth herein. We intend to mail the notice of Annual Meeting, this proxy statement, accompanying form of proxy card, and our 2019 Annual Report on Form 10‑K to you on or about April 24, 2020. This proxy statement includes information that we are required to provide to you by the Securities and Exchange Commission, or the SEC, and that is designed to assist you in voting your shares.

Q:            What is included in the proxy materials?

A:          The proxy materials include:

·

This proxy statement for the Annual Meeting;

·

Our 2019 Annual Report to Stockholders, which consists of our Annual Report on Form 10‑K for the year ended December 31, 2019; and

·

The proxy card or a voting instruction form for the Annual Meeting, if you have requested that the proxy materials be mailed to you.

Q:            How can I get electronic access to the proxy materials?

A:          The Company’s proxy materials are available at www.proxyvote.com and at www.agiletherapeutics.com. Our website address is included for reference only. The information contained on our website is not incorporated by reference into this proxy statement.

You can find directions on how to instruct us to send future proxy materials to you by email at www.proxyvote.com. Choosing to receive future proxy materials by email will save us the cost of printing and

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mailing documents to you and will reduce the impact of our annual meetings on the environment. If you choose to receive future proxy materials by email, you will receive an email message next year with instructions containing a link to those materials and a link to the proxy voting website. Your election to receive proxy materials by email will remain in effect until you terminate it.

Q:            What information is contained in this proxy statement?

A:          The information in this proxy statement relates to the proposals to be voted on at the Annual Meeting, the voting process, the compensation of our directors and certain of our executive officers, corporate governance, and certain other required information.

Q:            Where is the Annual Meeting?

A:          In light of the COVID-19 pandemic and related public health concerns, we will hold the Annual Meeting virtually via the Internet at www.virtualshareholdermeeting.com/AGRX2020.

Q:            Can I attend the Annual Meeting?

A:          This year's Annual Meeting will take place virtually through the Internet, in light of the COVID-19 pandemic and related public health concerns. There will not be a physical meeting location and you will not be able to attend the Annual Meeting in person.  We have designed the format of this year's virtual Annual Meeting to ensure that our stockholders who attend the Annual Meeting online will be afforded the same rights and opportunities to participate as they would at an in-person meeting. You will be able to attend the Annual Meeting online, vote your shares online during the Annual Meeting and submit questions online during the Annual Meeting by visiting www.virtualshareholdermeeting.com/AGRX2020.  You are entitled to attend and participate in the Annual Meeting only if you were a stockholder of record as of the close of business on April 20, 2020, or  the Record Date. To be admitted to the Annual Meeting at www.virtualshareholdermeeting.com/AGRX2020, you must enter the 16-digit control number found on your proxy card or other proxy materials. If you do not have a control number, please contact the brokerage firm, bank, dealer, or other similar organization that holds your account as soon as possible so that you can be provided with a control number. The use of recording or photographic equipment is not permitted at the Annual Meeting. The Annual Meeting will begin promptly at 9:00 a.m. local time. We encourage you to access the Annual Meeting before it begins. Online check-in will start shortly before the meeting on June 9, 2020. If you encounter any difficulties accessing the virtual meeting during the check-in or meeting time, please call the technical support number that will be posted on the virtual Annual Meeting log-in page.

Stock Ownership

Q:            What is the difference between holding shares as a stockholder of record and as a beneficial owner?

A:          Stockholders of record—If your shares are registered directly in your name with our transfer agent, Broadridge Corporate Issuer Solutions, Inc., you are considered, with respect to those shares, the “stockholder of record,” and the proxy materials were provided to you directly by us. As the stockholder of record, you have the right to grant your voting proxy directly to the individuals listed on the proxy card or to vote online at the Annual Meeting.

Beneficial owners—Many Agile stockholders hold their shares through a broker, trustee or other nominee, rather than directly in their own name. If your shares are held in a brokerage account or by a bank or another nominee, you are considered the “beneficial owner” of shares held in “street name.” The proxy materials were forwarded to you by your broker, trustee or nominee who is considered, with respect to those shares, the stockholder of record.

As the beneficial owner, you have the right to direct your broker, trustee or nominee on how to vote your shares. Beneficial owners are also invited to attend the Annual Meeting.

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Quorum and Voting

Q:            How many shares must be present or represented to conduct business at the Annual Meeting?

A:          A quorum is the minimum number of shares required to be present at the Annual Meeting for the meeting to be properly held under our amended and restated bylaws and the Delaware General Corporation Law, or the DGCL. The presence, in person or by proxy, of a majority of the aggregate voting power of the issued and outstanding shares of stock entitled to vote at the Annual Meeting will constitute a quorum at the meeting.

A proxy submitted by a stockholder may indicate that the shares represented by the proxy are not being voted, referred to as stockholder withholding with respect to a particular matter.

Under the DGCL, abstentions and broker “non‑votes” are counted as present and entitled to vote and are, therefore, included for purposes of determining whether a quorum is present at the Annual Meeting.

A broker non‑vote occurs when a nominee holding shares for a beneficial owner does not vote on a particular proposal because the nominee does not have discretionary voting power with respect to that item and has not received instructions from the beneficial owner. The following table summarizes how broker non‑votes and abstentions are treated with respect to our proposals:

Proposals

    

Votes Required

    

Treatment of Abstentions and
Broker Non‑Votes

    

Broker
Discretionary
Voting

1:

Election of Class III Directors for Three Year Term Expiring in 2023

 

Plurality of votes cast

 

Abstentions and broker non‑votes will not be taken into account in determining the outcome of the proposal

 

No

2:

Conduct a Non-Binding Advisory Vote on the 2019 Compensation of our Named Executive Officers

 

Majority of votes cast

 

Abstentions and broker non‑votes will not be taken into account in determining the outcome of the proposal

 

No

3:

Conduct a Non-Binding Advisory vote on the Frequency of Future Stockholder Votes on the Compensation of our Named Executive Officers

 

Plurality of votes cast

 

Abstentions and broker non‑votes will not be taken into account in determining the outcome of the proposal

 

No

4:

Ratification of Appointment of Ernst & Young LLP as our Independent Registered Public Accounting Firm for 2020

 

Majority of votes cast on the proposal in person or represented by proxy

 

Abstentions will have the effect of negative votes; broker non‑votes will have no effect on the outcome of the proposal

 

Yes

 

Q:            Who is entitled to vote at the Annual Meeting?

A:           Holders of record of our common stock at the close of business on the Record Date are entitled to receive notice of and to vote their shares at the Annual Meeting. As of the Record Date, we had 87,213,212 shares of common stock outstanding. In deciding all matters at the Annual Meeting, each holder of common stock of Agile will be entitled to one vote for each share of common stock held as of the close of business on the Record Date. We do not have cumulative voting rights for the election of directors.

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Q:            How can I vote my shares at the Annual Meeting?

A:          Shares held in your name as the stockholder of record may be voted online at the virtual Annual Meeting. You may cast your vote electronically during the Annual Meeting using the 16-digit control number found on your proxy card or other proxy materials and following the instructions at www.virtualshareholdermeeting.com/AGRX2020. Even if you plan to attend the Annual Meeting, we recommend that you also submit your proxy card, if you have requested one, or follow the voting directions described below, so that your vote will be counted if you later decide not to attend the Annual Meeting.

Q:            How do I submit a question at the Annual Meeting?

A:          If you wish to submit a question, on the day of the Annual Meeting, beginning at 8:50 a.m., you may log into the virtual meeting platform at www.virtualshareholdermeeting.com/AGRX2020, type your question into the “Ask a question” field, and click “Submit.”  Our virtual meeting will be governed by our Rules of Conduct and Procedures, which will be posted at www.virtualshareholdermeeting.com/AGRX2020 during the Annual Meeting.  The Rules of Conduct and Procedures will address the ability of stockholders to ask questions during the meeting, including rules on permissible topics, and rules for how questions and comments will be recognized. 

Q:            How can I vote my shares without attending the Annual Meeting?

A:          Stockholder of record—If you are a stockholder of record, there are three ways to vote without attending the Annual Meeting:

 

 

 

 

 

 

 

 

 

 

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Picture 8

 

 

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Mailing your signed proxy card or voter instruction card in the envelope provided.

Using the Internet at www.proxyvote.com.

Calling toll‑free from the United States, U.S. territories and Canada to the number found on the proxy card.

 

Beneficial owners—If you are a beneficial owner holding shares through a bank, broker or other nominee, please refer to information forwarded by your bank or broker to see which voting options are available to you.

Q:            What proposals will be voted on at the Annual Meeting?

A:          At the Annual Meeting, stockholders will be asked to vote:

1)

To elect the two directors identified in this proxy statement to serve as Class III directors until the 2023 Annual Meeting of stockholders and until their successors are duly elected and qualified;

2)

To conduct a non-binding advisory vote on the 2019 compensation of our named executive officers;

3)

To conduct a non-binding advisory vote on the frequency of future stockholder votes on the compensation of our named executive officers;

4)

To ratify the appointment of Ernst & Young LLP as our independent registered public accounting firm for the year ending December 31, 2020; and

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5)

To transact such other business as may properly come before the Annual Meeting or any adjournment thereof.

Q:            What is the voting requirement to approve each of the proposals?

A:          Proposal One—The election of a director requires a plurality vote of the shares of common stock voted at the Annual Meeting. “Plurality” means that the individual who receives the largest number of votes cast “for” is elected as a director, however, a nominee is not required to receive a majority of votes “for.” As a result, any shares not voted “for” the nominee (whether as a result of stockholder withholding or a broker non‑vote) will not be counted in the nominee’s favor.

Proposals Two and Three —The non-binding advisory votes on the 2019 compensation of our named executive officers and the frequency of future stockholder votes on the compensation of our named executive officers are not binding on, nor do they overrule, any decisions of the Company, the board or the compensation committee. We value the input of our stockholders, and in the event that Proposal 2 is not approved by a majority of votes cast or more votes are cast on Proposal 3 for a different frequency than that recommended by the board, the board and the compensation committee will consider our stockholders’ concerns and evaluate what actions, if any, may be appropriate to address those concerns.

Proposal Four—The affirmative vote of a majority of votes cast is required to ratify the appointment of Ernst & Young LLP as our independent registered public accounting firm for the year ending December 31, 2020. Abstentions will have the effect of a vote against this proposal and broker non‑votes will have no effect on the outcome of this proposal.

Q:           How does the board of directors recommend that I vote?

A:          Our board of directors unanimously recommends that you vote your shares:

·

“FOR” the nominees for election as directors listed in Proposal One;

·

“FOR” the non-binding advisory vote on the 2019 compensation of our named executive officers in Proposal Two;

·

“ONE YEAR”  on the non-binding, advisory proposal to determine the frequency of future stockholder votes on the compensation of our named executive officers in Proposal Three; and

·

“FOR” the ratification of the appointment of Ernst & Young LLP as our independent registered public accounting firm for the year ending December 31, 2020.

Q:            What happens if I do not give specific voting instructions?

A:          Stockholder of record—If you are a stockholder of record and you:

Indicate when voting on the Internet or by telephone that you wish to vote as recommended by our board of directors; or

Sign and return a proxy card without giving specific voting instructions,

then the persons named as proxy holders will vote your shares in the manner recommended by our board of directors on all matters presented in this proxy statement and as the proxy holders may determine in their discretion with respect to any other matters properly presented for a vote at the Annual Meeting.

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Beneficial owners—If you are a beneficial owner of shares held in street name and do not provide the organization that holds your shares with specific voting instructions then, under applicable rules, the organization that holds your shares may generally vote on “routine” matters but cannot vote on “non‑routine” matters. If the organization that holds your shares does not receive instructions from you on how to vote your shares on a non‑routine matter, that organization will inform the inspector of election that it does not have the authority to vote on this matter with respect to your shares. This is generally referred to as a “broker non‑vote.”

Q:            How may my brokerage firm or other intermediary vote my shares if I fail to provide timely directions?

A:          Brokerage firms and other intermediaries holding shares of common stock in street name for customers are generally required to vote such shares in the manner directed by their customers. In the absence of timely directions, your broker will have discretion to vote your shares on our sole routine matter—the proposal to ratify the appointment of Ernst & Young LLP. Your broker will not have discretion to vote on the election of directors. Please also see the voting summary table on page 3.

Please note that brokers may not vote your shares on the (i) election of directors, (ii) non-binding advisory vote on the 2019 compensation of our named executive officers, or (iii) non-binding advisory vote on the frequency of future stockholder votes on the compensation of our named executive officers in the absence of your specific instructions as to how to vote, so we encourage you to provide instructions to your broker regarding the voting of your shares.

Q:            What happens if additional matters are presented at the Annual Meeting?

A:          If any other matters are properly presented for consideration at the Annual Meeting, including, among other things, consideration of a motion to adjourn the Annual Meeting to another time or place (including, without limitation, for the purpose of soliciting additional proxies), the persons named in the proxy card and acting thereunder will have discretion to vote on those matters in accordance with their best judgment. We do not currently anticipate that any other matters will be raised at the Annual Meeting.

Q:            Can I change or revoke my vote?

A:          Subject to any rules your broker, trustee or nominee may have, you may change your proxy instructions at any time before your proxy is voted at the Annual Meeting.

If you are a stockholder of record, you may change your vote by (1) filing with our Corporate Secretary, prior to your shares being voted at the Annual Meeting, a written notice of revocation or a duly executed proxy card, in either case dated later than the prior proxy card relating to the same shares, or (2) by attending the Annual Meeting virtually and voting online as instructed above during the meeting (although attendance at the virtual Annual Meeting will not, by itself, revoke a proxy). A stockholder of record that has voted on the Internet or by telephone may also change his or her vote by later making a timely and valid Internet or telephone vote.

If you are a beneficial owner of shares held in street name, you may change your vote (1) by submitting new voting instructions to your broker, trustee or other nominee; (2) if you have obtained a legal proxy from the broker, trustee or other nominee that holds your shares giving you the right to vote the shares, by attending the Annual Meeting virtually and voting online during the meeting; or (3) filing with our Corporate Secretary, prior to your shares being voted at the Annual Meeting, a written notice of revocation or a duly executed proxy card, in either case dated later than the prior proxy card relating to the same shares.

Any written notice of revocation or subsequent proxy card must be received by our Corporate Secretary prior to the taking of the vote at the Annual Meeting. Such written notice of revocation or subsequent proxy card should be hand delivered to our Corporate Secretary or should be sent so as to be delivered to our principal executive offices, Attention: Corporate Secretary.

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Q:            Who will bear the cost of soliciting votes for the Annual Meeting?

A:          We will bear all expenses of this solicitation, including the cost of preparing and mailing these proxy materials. We may reimburse brokerage firms, custodians, nominees, fiduciaries and other persons representing beneficial owners of common stock for their reasonable expenses in forwarding solicitation material to such beneficial owners. Directors, officers and employees of Agile may also solicit proxies in person or by other means of communication. Such directors, officers and employees will not be additionally compensated but may be reimbursed for reasonable out‑of‑pocket expenses in connection with such solicitation. We may engage the services of a professional proxy solicitation firm to aid in the solicitation of proxies from certain brokers, bank nominees and other institutional owners. Our costs for such services, if retained, will not be significant. If you choose to access the proxy materials and/or vote through the Internet, you are responsible for any Internet access charges you may incur.

Q:            Is my vote confidential?

A:          Proxy instructions, ballots, and voting tabulations that identify individual stockholders are handled in a manner that protects your voting privacy. Your vote will not be disclosed either within Agile or to third parties, except as necessary to meet applicable legal requirements, to allow for the tabulation of votes and certification of the vote, or to facilitate a successful proxy solicitation.

Q:            Where can I find the voting results of the Annual Meeting?

A:          We intend to announce preliminary voting results at the Annual Meeting and will publish final results in a current report on Form 8‑K within four business days after the Annual Meeting.

Stockholder Proposals and Director Nominations

Q:            What is the deadline to propose actions for consideration at next year’s annual meeting of stockholders or to nominate individuals to serve as directors?

A:          You may submit proposals, including director nominations, for consideration at future stockholder meetings.

Requirements for stockholder proposals to be considered for inclusion in our proxy materials—Stockholders may present proper proposals for inclusion in our proxy statement and for consideration at our next annual meeting of stockholders by submitting their proposals in writing to our Corporate Secretary in a timely manner. In order to be included in the proxy statement for the 2021 annual meeting of stockholders, stockholder proposals must be received by our Corporate Secretary no later than December 25, 2020 and must otherwise comply with the requirements of Rule 14a‑8 of the Securities Exchange Act of 1934, as amended (the Exchange Act).

Requirements for stockholder proposals to be brought before an annual meeting—In addition, our amended and restated bylaws establish an advance notice procedure for stockholders who wish to present certain matters before an annual meeting of stockholders. In general, nominations for the election of directors may be made by our board of directors or any committee thereof or any stockholder, who is a stockholder of record on the date of the giving of such notice and on the record date for the determination of stockholders entitled to vote at such meeting, who is entitled to vote at such meeting and who has delivered written notice to our Corporate Secretary no later than the Notice Deadline (as defined below), which notice must contain specified information concerning the nominees and concerning the stockholder proposing such nominations.

Our amended and restated bylaws also provide that the only business that may be conducted at an annual meeting is business that is (1) specified in the notice of meeting (or any supplement thereto) given by or at the direction of our board of directors, (2) otherwise properly brought before the meeting by or at the direction of our board of directors (or any committee thereto) or (3) properly brought before the meeting by a stockholder

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who has delivered written notice to our Corporate Secretary no later than the Notice Deadline (as defined below).

The “Notice Deadline” is defined in our amended and restated bylaws as that date which is not less than 120 days nor more than 150 days prior to the one‑year anniversary of the previous year’s annual meeting of stockholders. As a result, the Notice Deadline for the 2021 annual meeting of stockholders is between January 8, 2021 and February 9, 2021.

If a stockholder who has notified us of his or her intention to present a proposal at an annual meeting does not appear to present his or her proposal at such meeting, we need not present the proposal for vote at such meeting.

Recommendation of director candidates—You may recommend candidates to our board of directors for consideration by our nominating and governance committee by following the procedures set forth below in “Corporate Governance—Stockholder Communications with the Board of Directors.”

Q:            How may I obtain a copy of the bylaw provisions regarding stockholder proposals and director nominations?

A:          A copy of the full text of the bylaw provisions discussed above may be obtained by writing to our Corporate Secretary. In addition, this and other information about our company may be obtained at the website maintained by the SEC that contains reports, proxy and information statements, and other information regarding registrants that file electronically with the SEC. The address of the SEC’s website is www.sec.gov. All notices of proposals by stockholders, whether or not included in Agile’s proxy materials, should be sent to our principal executive offices, Attention: Corporate Secretary.

Additional Information about the Proxy Materials

Q:            What does it mean if multiple members of my household are stockholders, but we only received one full set of proxy materials in the mail?

A:          We have adopted a procedure called “householding,” which the SEC has approved. Under this procedure, we deliver a single copy of the notice of the Annual Meeting and the proxy materials to multiple stockholders who share the same address unless we have received contrary instructions from one or more of the stockholders. This procedure reduces our printing costs, mailing costs, and fees and is beneficial for the environment. Stockholders who participate in householding will continue to be able to access and receive separate proxy cards. Upon written request, we will deliver promptly a separate copy of the notice of the Annual Meeting and the proxy materials to any stockholder at a shared address to which we delivered a single copy of any of these documents. To receive a separate copy of the notice of the Annual Meeting and the proxy materials, stockholders should send their requests to our principal executive offices, Attention: Corporate Secretary. Stockholders who hold shares in street name (as described below) may contact their brokerage firm, bank, broker‑dealer, or other similar organization to request information about householding.

Q:            What is the mailing address for Agile’s principal executive offices?

A:          Our principal executive offices are located at 101 Poor Farm Road, Princeton, NJ 08540. The telephone number at that location is (609) 683‑1880.

Any written requests for additional information, copies of the proxy materials and 2019 Annual Report, notices of stockholder proposals, recommendations for candidates to our board of directors, communications to our board of directors or any other communications should be sent to the address above.

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IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE

ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON JUNE 9, 2020.

The proxy statement and annual report to stockholders are available at www.proxyvote.com.

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PROPOSAL ONE

ELECTION OF DIRECTORS

General

Our board of directors may establish the authorized number of directors from time to time by resolution. Our board of directors is currently comprised of seven members who are divided into three classes with staggered three‑year terms. A director serves in office until his or her respective successor is duly elected and qualified or until his or her earlier death or resignation. This classification of the board of directors into three classes with staggered three‑year terms may have the effect of delaying or preventing changes in our control or management. The terms of office of our Class III directors, Abhijeet Lele and Ajit S. Shetty, Ph.D., will expire at this year’s Annual Meeting, and we have nominated Sharon Barbari as a Class III director to replace Mr. Lele, who will not stand for re-election at the Annual Meeting, and, accordingly, will cease to serve as a director following the Annual Meeting. Your proxy cannot be voted for a greater number of persons than the number of nominees named in this proxy statement.

In April 2020, William T. McKee provided notice to the board of his intention to retire as a Class II director as of June 9, 2020.  We plan to appoint Sandra Carson, M.D., FACOG to replace Mr. McKee as a Class II director.

Dr. Carson is a Professor of Obstetrics, Gynecology and Reproductive Sciences and Director, Reproductive Endocrinology and Infertility at Yale University.  Most recently, she served as the Emeritus Vice President for Education at the American College of Obstetricians & Gynecologists (ACOG) from August 2018 to February 2019 and Vice President for Education from March 2013 to August 2018.  Prior to joining ACOG she served as Professor and Director of the Division of Reproductive Endocrinology an Infertility at Brown University from 2007 to 2013.  She had previously directed the Assisted Reproductive Technology programs at the University of Tennessee from 1986 to 1998, and the Baylor College of Medicine from 1998 to 2007. Dr. Carson is one of the foremost leaders in the field of reproductive endocrinology and infertility and she has published over 150 papers, received numerous competitive grants and had a major impact on the field.  She has held multiple national leadership positions including President of the American Society for Reproductive Medicine (ASRM), Member of the Council of the National Institutes of Child Health and Human Development, Head of the Reproductive Endocrinology and Infertility Division of the American Board of Obstetrics and Gynecology (ABOG), Director and Vice President of the ABOG board and Vice President of ACOG.  Dr. Carson served on the U. S. Food and Drug Administration’s Fertility and Maternal Health Drugs Advisory Committee from 1992 to 1996 and the Advisory Committee for Reproductive Health Drugs from 2006 to 2012, and chaired that committee from 2007 to 2012.  Dr. Carson is a board-certified OB/GYN.  She received her Doctor of Medicine degree and completed her residency fellowship training at Northwestern University Medical School and completed her fellowship training at Michael Reese Hospital Medical Center, University of Chicago.

Nominees

Two Class III directors have been nominated for election at the Annual Meeting for a three‑year term expiring in 2023. Upon the recommendation of our nominating and governance committee, our board of directors has nominated Sharon Barbari and Ajit S. Shetti, Ph.D. for election as Class III directors. The term of office of the nominees elected as directors will continue until such director’s term expires in 2023, and until such director’s successor has been duly elected and qualified.

Information Regarding the Nominees and Other Directors

Nominees for Class III Directors for a Term Expiring in 2023

The following information about each of the nominees is presented as of April 24, 2020, including the nominee’s age, business experience, public company director positions held currently or at any time during the last five years, involvement in certain legal or administrative proceedings, if applicable, and the experiences, qualifications,

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attributes or skills that caused the nominating/corporate governance committee and our board of directors to determine that the nominee should serve as one of our directors.

Name

    

Age

    

Principal Occupation and Business Experience

Sharon Barbari 

 

65

 

Sharon Barbari has been nominated by our board of directors for election at the Annual Meeting.  Ms. Barbari has over 40 years of pharmaceutical and biotechnology experience. From 2004 to 2017, she was Chief Financial Officer at Cytokinetics. From 2002 to 2004, she was employed as Chief Financial Officer and Senior Vice President of Finance and Administration at InterMune.  Ms. Barbari spent four years from 1998 to 2002 in senior financial roles at Gilead Sciences, including Chief Financial Officer. In this capacity, she led the finance, accounting, and information technology functions during a period of significant growth for Gilead. Ms. Barbari was also employed as Vice President of Strategic Planning at Foote, Cone & Belding Healthcare. She began her career at Syntex Corporation/Roche Pharmaceuticals, where she held various roles of increasing responsibility from 1972 to 1996. Ms. Barbari currently serves as a board member for Sonoma Pharmaceuticals and Menlo Therapeutics (formerly Foamix Pharmaceuticals), and as a board member for the Association of Bioscience Finance Officers Northern California Chapter. She previously was a board member for Phytogen Life Sciences. In 2017, Ms. Barbari was a recipient of the YWCA Silicon Valley Tribute to Women Awards. She received her BS in accounting from San Jose State University.    We believe Ms. Barbari’s qualifications to sit on our Board of Directors include her extensive pharmaceutical industry leadership and financial operations experience.

 

 

 

 

 

Ajit S. Shetty, Ph.D.

 

73

 

Ajit S. Shetty, Ph.D., has served as a member of our board of directors since February 2016. Dr. Shetty currently also serves as a member of the Board of Directors of Actinium Pharmaceuticals, Inc. Dr. Shetty spent 36 years at Johnson & Johnson (“J&J”) in a wide range of global roles.  From 2007 to 2012, he served as Corporate Vice President, Enterprise Supply Chain reporting to the CEO and was responsible for the transformation and optimization of J&J’s supply chain.  Dr. Shetty served as Managing Director of Janssen Pharmaceutica, Belgium from 1999 to 2008, and was part of the management team that grew the Janssen Group of Companies from $1 billion to $8 billion in global sales.  Dr. Shetty held the position of Executive Vice President Finance from 1991 to 1999. As President of Janssen Pharmaceutica, U.S. from 1984 to 1990, Dr. Shetty was responsible for in-licensing Durogesic, the first transdermal pain medication, which became the fourth largest J&J product in 2008, with sales reaching $2 billion.  In recognition of his unique services as a business leader, Dr. Shetty was awarded the Right Honourable Sir and Title of Baron by King Albert II of Belgium in 2008 and the Life-Time Achievement Award by India in 2010.  He was elected “Manager of the Year 2004” by the magazine Trends and Kanaal Z.  Dr. Shetty serves as a Trustee of Carnegie Mellon University and has served on the corporate Advisory Board of Johns Hopkins Carey School of Business, the Board of Governors for GS1 (Global Standards), the Board of MCB Forum as Chairman, and the Supervisory Board of Cilag GMBH in Switzerland.  He earned a Ph.D. in Metallurgy and B.A. Natural Sciences from Trinity College, Cambridge University and a Master of Business Administration from Carnegie Mellon University. We believe Dr. Shetty’s qualifications to sit on our Board of Directors include his extensive pharmaceutical experience leading commercial and supply chain operations and his significant educational background.

 

 

 

 

 

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR” THE CLASS III
NOMINEES NAMED ABOVE.

The following contains certain information about those directors whose terms do not expire at the Annual Meeting, including their business experience, public company director positions held currently or at any time during the last five years, involvement in certain legal or administrative proceedings, if applicable, and the experiences, qualifications, attributes or skills that caused the nominating and corporate governance committee and our board of directors to determine that the directors should serve on our board. The age of each director as of April 24, 2020 is also set forth below.

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Incumbent Class I Directors Whose Terms Expire in 2021

Name

    

Age

    

Principal Occupation and Business Experience

Al Altomari

 

61

 

Mr. Altomari has served as our Chairman of the board and Chief Executive Officer since October 2016 and has been a member of our board of directors since February 2004.  Mr. Altomari served as President and Chief Executive Officer from 2010 to 2016.  Previously Mr. Altomari served as Agile's Executive Chairman from 2004 to 2010. From 2003 to 2008, Mr. Altomari held multiple senior management positions at Barrier Therapeutics, Inc., including Chief Commercial Officer, Chief Operating Officer, and Chief Executive Officer. In 2008, in his role as Chief Executive Officer and as a member of Barrier's board of directors, Mr. Altomari completed the successful sale of Barrier to Stiefel Laboratories, which was subsequently acquired by GlaxoSmithKline plc. From 1982 to 2003, Mr. Altomari held numerous executive roles in general management, commercial operations, business development, product launch preparation, and finance with Johnson & Johnson. Mr. Altomari also serves on the board of directors of Insmed Inc. and Baudax Bio, Inc.  He previously served on the board of directors of Recro Pharm, Inc.  Mr. Altomari received an M.B.A. from Rider University and his B.S. from Drexel University. He currently serves on the LeBow College of Business Advisory Board and the Board of the Charles D. Close School of Entrepreneurship at Drexel University. He currently is a member of the Board of Directors for TASK (Trenton Area Soup Kitchen).

 

 

 

 

 

John Hubbard,
Ph.D., FCP

 

63

 

Dr. Hubbard has served as a member of our board of directors since November 2014. Dr. Hubbard currently serves on the Strategic Advisory Board of Genstar Capital and is responsible for advising the private equity firm on investments in the area of healthcare. He also serves as a non‑Executive Director on the Board of Directors of Signant Health, a privately‑owned specialty clinical trials and technology service provider, and Advarra, a privately‑owned institutional review board.  Dr. Hubbard was President and the Chief Executive Officer of Bioclinica, a leading privately‑owned provider of medical imaging, clinical technology and research services until January 1, 2018. Prior to joining BioClinica, he was Senior Vice President and Worldwide Head of Development Operations for Pfizer Inc. and was responsible for the global clinical trial operations and management of more than 450 clinical projects from Phase I to IV. He was a founding member of the Board of Directors of TransCelerate Biopharma, Inc., a leading biopharma industry consortium, and served on the Executive, Audit and Finance Committees. Dr. Hubbard has been leading pharmaceutical research and development activity for over thirty years and held positions of increasing responsibility in the biopharmaceutical and clinical research and development services industries. Prior to joining Pfizer in 2010, he was Group President, Global Clinical Research Services at ICON Clinical Research, a leading global clinical research organization, where he was responsible for the global business and operations. He is an Executive Committee Member on the Clinical Trials Transformation Initiative, Board Member of Life Sciences Pennsylvania and former Chairman of the Board of the Association of Clinical Research Organizations (ACRO). During his career, Dr. Hubbard has been directly responsible for drug discovery and non‑clinical pharmacology, clinical pharmacology, project management, product development optimization, commercial assessment of new chemical entities, and clinical development operations. He has led several drug development teams to successful commercialization of new chemical entities and has participated at FDA meetings to support end of Phase II and end of Phase III data presentations for psychiatric, neurological, cardiovascular, and anti‑infective drugs. Dr. Hubbard received a Bachelor of Science degree in Biopsychology from the University of Santa Clara and a Doctorate from the University of Tennessee, with a research focus on the genetic basis of hypertension and autonomic dysfunction. He was a National Institute of Health Postdoctoral Fellow in Cardiovascular and Clinical Pharmacology at the University of Texas Health Sciences Center.

 

 

 

 

 

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Name

    

Age

    

Principal Occupation and Business Experience

James P. Tursi, M.D.

 

55

 

Dr. Tursi has served as a member of our board of directors since October 2014. Dr. Tursi currently serves as Executive Vice President, Head of Research & Development, and Chief Medical Officer for Antares Pharma, Inc., a specialty pharmaceutical company focused on the development and commercialization of self administered parenteral pharmaceutical products using advanced drug delivery auto injection technology. At Antares, he is responsible for all pharmaceutical and clinical development/medical affairs activities. Prior to Antares Pharma, Inc., he served as Chief Medical Officer for Aralez Pharmaceuticals, Inc. and was responsible for oversight of the clinical development, pharmacovigilance, medical affairs and regulatory affairs functions. Prior to Aralez Pharmaceuticals, he served as Chief Medical Officer of Innocoll AG where he was responsible for managing all clinical research and development, medical affairs and safety activities. Prior to joining Innocoll, Dr. Tursi served as the Chief Medical Officer of Auxilium Pharmaceuticals from 2011 to 2015. He served as Vice President of Clinical Research and Development at Auxilium from 2009 to 2011. Prior to Auxilium, Dr. Tursi was at GlaxoSmithKline Biologicals from 2006 to 2009, where he was the Director of Medical Affairs for cervical cancer vaccines in North America. From 2004 to 2006, Dr. Tursi served as a Medical Director for Procter & Gamble Pharmaceuticals where he worked in various therapeutic areas including female sexual dysfunction, overactive bladder, and osteoporosis. Dr. Tursi was a board certified OB/GYN and practiced medicine for over 10 years. He was the founder of the medical education company I Will Pass®, which assisted physicians in the process of board certification. Dr. Tursi received his Doctor of Medicine degree from the Medical College of Pennsylvania and completed his residency fellowship training at The Johns Hopkins Hospital.

 

Incumbent Class II Directors Whose Terms Expire in 2022

Name

 

Age

 

Principal Occupation and Business Experience

Seth H.Z. Fischer

 

64

 

Mr. Fischer has served as a member of our board of directors since July 2016.  Mr. Fischer currently serves as a member of the Board of Directors of Marinus Pharmaceuticals, Inc., Spectrum Pharmaceuticals, Inc., and is also an advisor to MedHab, LLC.  Previously, from 2013 – 2017, Mr. Fischer served as the Chief Executive Officer and as a Director of Vivus, Inc., a publicly traded biopharmaceutical company commercializing and developing innovative, next-generation therapies to address unmet needs. He has served in positions of increasing responsibility with Johnson & Johnson from 1983 until his retirement in 2012.  Most recently, Mr. Fischer served as Company Group Chairman, Johnson & Johnson and Worldwide Franchise Chairman, Cordis Corporation from 2008 to 2012, and as Company Group Chairman, North America Pharmaceuticals from 2004 to 2007, which included responsibilities for Ortho-McNeil Pharmaceuticals, Janssen and Scios.  Prior to that, Mr. Fischer served as President of Ortho-McNeil Pharmaceuticals from 2000 to 2004. His operating responsibilities encompassed the commercialization of products in multiple therapeutic categories including Topamax® for epilepsy and migraine and products in the analgesic, anti-infective, cardiovascular, neurologic, psychiatric and women's health areas, including ORTHO EVRA®, one of the most successful contraceptive launches in the U.S and the first ever contraceptive patch.  He earned a Bachelor of General Studies from Ohio University and served as a captain in the U.S. Air Force.

 

 

 

 

 

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Name

 

Age

 

Principal Occupation and Business Experience

William T. McKee

 

58

 

Mr. McKee has served as a member of our board of directors since March 2014. Mr. McKee currently serves as the Chief Executive Officer of MBJC Associates, LLC, a business consulting firm serving the pharmaceutical and biotech industry. Mr. McKee served as Chief Operating Officer and Chief Financial Officer for EKR Therapeutics, Inc., or EKR, from July 2010 until June 2012 when EKR was sold to Cornerstone Therapeutics Inc. Until March 2010, Mr. McKee served as the Executive Vice President, Chief Financial Officer and Treasurer of Barr Pharmaceuticals, LLC, a subsidiary of Teva Pharmaceutical Industries Limited, or Teva, and the successor entity to Barr Pharmaceuticals, Inc., or Barr, an NYSE listed company, which was acquired by Teva in December 2008. Mr. McKee was also Executive Vice President and Chief Financial Officer of Barr prior to its acquisition by Teva, after having served in positions of increasing responsibility at Barr from 1995 until its acquisition. Prior to joining Barr, Mr. McKee served as Director of International Operations and Vice President-Finance at Absolute Entertainment, Inc. from June 1993 until December 1994. From 1990 until June 1993, Mr. McKee worked at Gramkow & Carnevale, CPA, and from 1983 until 1990, he worked at Deloitte & Touche. Since March 2017, Mr. McKee has served as a member of the board of directors as well as the nominating and governance committee of Assertio Therapeutics, Inc. (formerly known as Depomed, Inc.), a specialty pharmaceutical company focused on products to treat central nervous system conditions.  He has also served as the chair of Assertio’s Audit Committee since January 2018.  Since March 2019, Mr. McKee has served as a member of the board of directors of Aileron Therapeutics, Inc., a clinical stage pharmaceutical company focused on developing novel cancer treatments.  He was a director at Cerulean Pharma Inc., until it was acquired by Daré Bioscience Operations, Inc. in July 2017 and Auxilium Pharmaceuticals, Inc. until it was acquired by Endo International plc in January 2015. Mr. McKee received his Bachelor of Business Administration degree from the University of Notre Dame.

 

There are no family relationships among any of our directors or executive officers. See “Corporate Governance” below for additional information regarding our board of directors.

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CORPORATE GOVERNANCE

Corporate Governance Materials and Practices

Our written corporate governance materials, including our Bylaws, Corporate Governance Guidelines, Code of Business Conduct and Ethics, Audit Committee Charter, Compensation Committee Charter, Nominating and Corporate Governance Committee Charter, and Science and Technology Committee Charter are posted on our website at www.agiletherapeutics.com under the heading “Investor Relations—Corporate Governance.” Our corporate governance practices include the following:

·

Our board of directors has a Lead Independent Director, and all of our non‑employee directors and board committee members are independent.

·

Our board of directors oversees succession planning for executive officers, including the Chief Executive Officer.

·

Directors have access to all levels of management and are provided with opportunities to meet with members of management on a regular basis.

·

Directors may retain their own independent advisors at our expense.

·

Our board of directors and each committee thereof conduct self‑evaluations at least once per year to assess their performance and ways in which performance could be improved.

·

Our board of directors addresses the importance of incorporating new viewpoints through the director evaluation and nomination process. Our director composition reflects a mix of tenure on our board of directors (ranging from 4 years to 16 years), which we believe provides an effective balance of historical perspective and an understanding of the evolution of the Company with fresh perspectives and insights.

Code of Business Conduct and Ethics

Our board of directors has adopted a code of business conduct and ethics. The code of business conduct and ethics applies to all of our employees, officers and directors. The full text of our code of business conduct and ethics is posted on our website at www.agiletherapeutics.com. We intend to disclose, to the extent required by applicable rules and regulations, future amendments to, or waivers of, our code of business conduct and ethics, at the same location on our website identified above and also in public filings we will make with the SEC. Information contained on our website is not incorporated by reference into this proxy, and you should not consider information contained on our website to be part of this proxy or in deciding whether to purchase shares of our common stock.

Hedging and Pledging Policies

We have adopted an insider trading policy that includes a provision that restricts our directors, officers and employees from engaging in hedging or monetization transactions involving our securities and from engaging in short sales of our securities. Our insider trading policy also prohibits our directors, officers and employees from holding our securities in margin accounts or otherwise pledging our securities as collateral for loans without prior written approval.

Board Composition

Our business affairs are managed under the direction of our board of directors, which is currently composed of seven members. Six of our seven directors are independent within the meaning of the listing rules of the Nasdaq Capital Market, or Nasdaq. Our board of directors is divided into three classes with staggered three‑year terms. At each annual meeting of stockholders, the successors to directors whose terms then expire will be elected to serve from the time of election and qualification until the third annual meeting following election. As a result, only one class of directors will

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be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three‑year terms. Each director’s term continues until the election and qualification of his or her successor, or the earlier of his or her death, resignation or removal. The classification of our board of directors may have the effect of delaying or preventing changes in our control or management.

Director Independence

Our common stock is listed on Nasdaq. The listing rules of this stock exchange generally require that a majority of the members of a listed company’s board of directors be independent. In addition, the rules of Nasdaq require that, subject to specified exceptions, each member of a listed company’s audit, compensation, and nominating and corporate governance committees be independent. The Nasdaq director independence definition includes a series of objective tests, such as that the director is not also one of our employees and has not engaged in various types of business dealings with us. In addition, as further required by Nasdaq rules, our board of directors has made a subjective determination as to each independent director that no relationships exist, which, in the opinion of our board of directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In making these determinations, our directors reviewed and discussed information provided by the directors and us with regard to each director’s business and personal activities as they may relate to us and our management.

Our board of directors has determined that none of our non‑employee directors or director nominees has a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director and that each of our current non-employee directors, as well as Ms. Barbari, who has been nominated by our board of directors for election at the Annual Meeting is “independent” as that term is defined under Nasdaq rules. The independent members of our board of directors hold separate regularly scheduled executive session meetings at which only independent directors are present.

Audit committee members must also satisfy the independence criteria set forth in Rule 10A‑3 under the Exchange Act. In order to be considered independent for purposes of Rule 10A‑3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors, or any other board committee, accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries; or be an affiliated person of the listed company or any of its subsidiaries. Each of the current members of our audit committee, William T. McKee, John Hubbard, Ph.D., FCP, and Abhijeet Lele qualifies as an independent director pursuant to Rule 10A‑3.

Board Leadership Structure

Al Altomari is the Chairman of our board of directors and Abhijeet Lele is our Lead Independent Director. Mr. Lele is not standing for re-election and his current term expires on June 9, 2020.  Seth H.Z. Fischer will become our Lead Independent Director as of the Annual Meeting. Our Lead Independent Director chairs the executive sessions of our board of director meetings, oversees the board of directors’ annual self‑evaluation process, provides feedback to the chief executive officer, and works with the chief executive officer to set agendas for board meetings. We have a separate chair for each committee of our board of directors, all of whom are independent directors. The chairs of each committee report on the activities of their committees in fulfilling their responsibilities at the meetings of our board of directors.

Our board of directors has concluded that our current leadership structure is appropriate at this time. However, our board of directors will continue to periodically review our leadership structure and may make such changes in the future as it deems appropriate.

Board Committees

Our board of directors has established an audit committee, a compensation committee, a nominating and corporate governance committee, and a science and technology committee, each of which operates pursuant to a charter adopted by our board of directors. The composition and functioning of all of our committees complies with all applicable requirements of the Sarbanes‑Oxley Act of 2002, Nasdaq and SEC rules and regulations.

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Audit committee.  Mr. McKee, Dr. Hubbard and Mr. Lele currently serve on the audit committee, which is chaired by Mr. McKee. Following the Annual Meeting, it is expected that Sharon Barbari will be appointed to the audit committee to replace Mr. Lele.  Our board of directors has determined that each member of the audit committee is “independent” for audit committee purposes as that term is defined in the rules of the SEC and the applicable Nasdaq rules, and has sufficient knowledge in financial and auditing matters to serve on the audit committee. Our board of directors has designated Mr. McKee as an “audit committee financial expert,” as defined under the applicable rules of the SEC. The audit committee operates under a written charter that satisfies the applicable standards of the SEC and Nasdaq and which is available on our website at www.agiletherapeutics.com. The inclusion of our website address here and elsewhere in this proxy does not include or incorporate by reference the information on our website into this proxy. Our audit committee met six (6) times during the year ended December 31, 2019. The audit committee’s responsibilities include:

·

appointing, approving the compensation of, and assessing the independence of our independent registered public accounting firm on an annual basis;

·

pre‑approving auditing and permissible non‑audit services, and the terms of such services, to be provided by our independent registered public accounting firm;

·

reviewing the overall audit plan with the independent registered public accounting firm and members of management responsible for preparing our financial statements;

·

reviewing and discussing with management and the independent registered public accounting firm our annual and quarterly financial statements and related disclosures as well as critical accounting policies and practices used by us;

·

coordinating the oversight and reviewing the adequacy of our internal control over financial reporting;

·

establishing policies and procedures for the receipt and retention of accounting‑related complaints and concerns;

·

recommending based upon the audit committee’s review and discussions with management and the independent registered public accounting firm whether our audited financial statements shall be included in our Annual Report on Form 10‑K;

·

monitoring the integrity of our financial statements and our compliance with legal and regulatory requirements as they relate to our financial statements and accounting matters;

·

preparing the audit committee report required by SEC rules to be included in our annual proxy statement;

·

reviewing all related person transactions for potential conflict of interest situations and approving all such transactions;

·

reviewing the Company’s risk assessment and risk management policies and procedures, and discussing with management the company’s significant financial risk exposures and the actions management has taken to limit, monitor or control such exposures, including, but not limited to, reviewing, on an on-going basis, cybersecurity; and

·

reviewing quarterly earnings releases.

Compensation committee.  Dr. Tursi, Mr. McKee and Mr. Fischer currently serve on the compensation committee, which is chaired by Dr. Tursi. Our board of directors has determined that each member of the compensation committee is “independent” as defined in applicable Nasdaq rules. The compensation committee operates under a written charter that satisfies the applicable standards of Nasdaq and which is available on our website at

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www.agiletherapeutics.com. The inclusion of our website address here and elsewhere in this proxy does not include or incorporate by reference the information on our website into this proxy. Our compensation committee met twelve (12) times during the year ended December 31, 2019. The compensation committee’s responsibilities include:

·

annually reviewing and making recommendations to the board of directors with respect to corporate goals and objectives relevant to the compensation of our chief executive officer;

·

evaluating the performance of our chief executive officer in light of such corporate goals and objectives and making recommendations to the board of directors with respect to the compensation of our chief executive officer;

·

reviewing and approving the compensation of our other executive officers;

·

reviewing and establishing our overall management compensation philosophy and policy;

·

overseeing and administering our compensation and similar plans;

·

reviewing and approving our policies and procedures for the grant of equity‑based awards;

·

reviewing and making recommendations to the board of directors with respect to director compensation;

·

reviewing and discussing with management the compensation discussion and analysis to be included in our annual proxy statement or Annual Report on Form 10‑K; and

·

reviewing and discussing with the board of directors corporate succession plans for the chief executive officer and other key officers.

Certain of our executive officers may provide information and assist our compensation committee in carrying out its functions, however, the Committee considers potential compensation actions and makes decisions independently. Our compensation committee has engaged the services of Pay Governance LLC, a compensation consulting firm, to advise the compensation committee regarding the amount and types of compensation that we provide to our executives and directors and how our compensation practices compared to the compensation practices of other companies. Pay Governance LLC reports directly to the compensation committee. Pay Governance LLC does not provide any services to us other than the services provided to the compensation committee. The compensation committee believes that Pay Governance LLC does not have any conflicts of interest in advising the compensation committee under applicable SEC rules or Nasdaq listing standards.

Nominating and corporate governance committee.  Mr. Lele, Dr. Shetty and Mr. Fischer currently serve on the nominating and corporate governance committee, which is chaired by Mr. Lele. Our board of directors has determined that each member of the nominating and corporate governance committee is “independent” as defined in applicable Nasdaq rules. The nominating and corporate governance committee operates under a written charter that satisfies the applicable standards of Nasdaq and which is available on our website at www.agiletherapeutics.com. The inclusion of our website address here and elsewhere in this proxy does not include or incorporate by reference the information on our website into this proxy. Our nominating and corporate governance committee met one (1) time during the year ended December 31, 2019. The nominating and corporate governance committee’s responsibilities include:

·

developing and recommending to the board of directors criteria for board and committee membership;

·

establishing procedures for identifying and evaluating board of director candidates, including nominees recommended by stockholders;

·

reviewing the size and composition of the board of directors to ensure that it is composed of members containing the appropriate skills and expertise to advise us;

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·

identifying individuals qualified to become members of the board of directors;

·

recommending to the board of directors the persons to be nominated for election as directors and to each of the board’s committees;

·

developing and recommending to the board of directors a code of business conduct and ethics and a set of corporate governance guidelines;

·

developing a mechanism by which violations of the code of business conduct and ethics can be reported in a confidential manner; and

·

overseeing the evaluation of the board of directors and management.

Science and Technology Committee.  Dr. Hubbard, Dr. Shetty and Dr. Tursi currently serve on the science and technology committee, which is chaired by Dr. Hubbard. The science and technology committee operates under a written charter, which is available on our website at www.agiletherapeutics.com. The inclusion of our website address here and elsewhere in this proxy does not include or incorporate by reference the information on our website into this proxy. Our science and technology committee met three (3) times during the year ended December 31, 2019. The science and technology committee’s responsibilities include:

·

identifying and discussing new and emerging trends in pharmaceutical science, technology, pharmaceutical regulation and manufacturing, and, as necessary, reporting to the board of directors on such trends and the committee’s deliberations;

·

reviewing, evaluating and advising the board of directors regarding the quality, direction and competitiveness of our research and development and manufacturing programs;

·

reviewing, evaluating and advising the board of directors regarding our progress in achieving our long‑term strategic research and development goals and objectives; reviewing and making recommendations to the board of directors on our internal and external investments in science, technology and manufacturing. For any external investments in research and development (e.g., potential acquisitions, alliances, collaborations, equity investments, contracts and grants) that require approval by the board of directors, the committee provides the board of directors with its recommendation prior to any action by the board unless time does not permit;

·

regularly reviewing our pipeline of product candidates and clinical development performance;

·

providing assistance to the compensation committee in setting any pipeline or development performance metric(s) under our incentive compensation programs and reviewing the performance results;

·

evaluating its own performance annually and delivering a report to the board of directors setting forth the results of the evaluation;

·

reviewing and reassessing the adequacy of its charter annually and recommending any proposed changes to the board of directors for its approval; and

·

performing any other activities consistent with its charter, our amended and restated bylaws and governing law or regulation, as the committee or the board of directors deems necessary or appropriate.

In 2019, the board established an ad hoc finance committee to act on its behalf on matters relating to potential transactions to raise capital and to review potential business development transactions.  Mr. Fischer, Dr. Hubbard, Mr. Lele, and Mr. McKee served on the committee, which was chaired by Mr. Fischer.  The committee met fourteen

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(14) times during the year ended December 31, 2019.  Our board of directors may from time to time establish other committees.

Meetings of the Board of Directors

The full board of directors met ten (10) times during the year ended December 31, 2019. No director attended fewer than 75% of the total number of meetings of the board of directors and of any committees of the board of directors of which he or she was a member during our year ended December 31, 2019.

It is our policy that directors are invited and encouraged to attend our annual meetings of stockholders. We have scheduled our Annual Meeting on the same day as a regularly scheduled board of directors meeting in order to facilitate attendance by the members of our board of directors. All of our directors at the time of our 2019 Annual Meeting of Stockholders attended the 2019 Annual Meeting of Stockholders.

Board Oversight of Risk

Risk is inherent with every business, and how well a business manages risk can ultimately determine its success. We face a number of risks, including risks relating to our operations, strategic direction and intellectual property as more fully discussed under “Risk Factors” in our Annual Report on Form 10‑K. Management is responsible for the day‑to‑day management of risks we face, while our board of directors, as a whole and through its committees, has responsibility for the oversight of risk management. In its risk oversight role, our board of directors has the responsibility to satisfy itself that the risk management processes designed and implemented by management are adequate and functioning as designed.

The role of the board of directors in overseeing the management of our risks is conducted primarily through committees of the board of directors, as disclosed in the descriptions of each of the committees above and in the charters of each of the committees. For example, our audit committee is responsible for overseeing the management of risks associated with our financial reporting, accounting and auditing matters, regulatory and legal compliance, and cyber‑security; our compensation committee oversees major risks associated with our compensation policies and programs; and our nominating and governance committee oversees the management of risks associated with director independence, conflicts of interest, composition and organization of our board of directors and director succession planning. The full board of directors (or the appropriate board committee in the case of risks that are under the purview of a particular committee) discusses with management our major risk exposures, their potential impact on Agile, and the steps we take to manage them. When a board committee is responsible for evaluating and overseeing the management of a particular risk or risks, the chairman of the relevant committee reports on the discussion to the full board of directors during the committee reports portion of the next board meeting. This enables the board of directors and its committees to coordinate the risk oversight role, particularly with respect to risk interrelationships.

Director Nomination Process

In considering whether to recommend any candidate for inclusion in our board of directors’ slate of recommended directors, including candidates recommended by stockholders, the nominating and corporate governance committee applies a certain set of criteria, including, but not limited to, the candidate’s integrity, business acumen, experience, commitment, diligence, conflicts of interest and the ability to act in the interests of all stockholders. We believe that the value of diversity on the board should be considered by the nominating and corporate governance committee in the director identification and nomination process. The committee seeks nominees with a broad diversity of experience, professions, skills, geographic representation and backgrounds. The committee does not assign specific weights to particular criteria and no particular criterion is necessarily applicable to all prospective nominees. We believe that the backgrounds and qualifications of the directors, considered as a group, should provide a significant breadth of experience, knowledge and abilities that will allow the board of directors to fulfill its responsibilities. Nominees are not discriminated against on the basis of race, religion, national origin, sex, sexual orientation, disability or any other basis proscribed by law or Company policy.

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Stockholders may also nominate persons to be elected as directors. Our nominating and corporate governance committee will consider director candidates recommended by our stockholders, in accordance with our bylaws. If a stockholder wishes to nominate a person for election as director, he or she must follow the procedures contained in our bylaws. In evaluating candidates recommended by our stockholders, our nominating and corporate governance committee applies the same criteria as discussed above. To nominate a person to stand for election as a director, a stockholder must provide our Secretary with timely notice of the nomination and the notice must include the information required by Section 2.4 of our bylaws.

Director Compensation

During our fiscal year ended December 31, 2019, we paid cash fees and granted options to purchase shares of our common stock to our non‑employee directors who served on our board of directors. A non‑employee director is a director who is not employed by us and who does not receive compensation from us (other than for services as a director) or has a business relationship with us that would require disclosure under certain SEC rules. Mr. Altomari, our chief executive officer and a member of our board of directors, did not receive any compensation from us during our fiscal year ended December 31, 2019 for his service as a director and is not included in the table below.

 

 

 

 

 

 

 

 

 

 

 

    

Fees Earned or

    

Option

    

 

 

Name

 

Paid in Cash

 

Awards(1)(2)

 

Total

Seth H.Z. Fischer

 

$

56,250

 

$

47,078

 

$

103,328

John Hubbard, Ph.D.

 

$

62,500

 

$

47,078

 

$

109,578

Abhijeet Lele

 

$

77,500

 

$

47,078

 

$

124,578

William T. McKee

 

$

62,500

 

$

47,078

 

$

109,578

Ajit S. Shetty, Ph.D.

 

$

50,000

 

$

47,078

 

$

97,078

James P. Tursi, M.D.

 

$

57,500

 

$

47,078

 

$

104,578


(1)

In accordance with SEC rules, this column reflects the aggregate grant date fair value of the option awards granted computed in accordance with Financial Accounting Standard Board Accounting Codification Topic 718 for stock‑based compensation transactions (ASC 718). Assumptions used in the calculation of these amounts are included in Note 10 to our financial statements in our Annual Report on Form 10‑K for the year ended December 31, 2019. These amounts do not reflect the actual economic value that will be realized by the director upon the vesting of the stock options, the exercise of the stock options, or the sale of the common stock underlying such stock options.

(2)

As of December 31, 2019, our non‑employee directors held the following aggregate number of shares under outstanding stock options (representing unexercised option awards—both exercisable and unexercisable) and unvested restricted stock unit awards:

 

 

 

 

 

 

    

Aggregate Number of

    

Aggregate Number of

 

 

Shares Underlying

 

Shares Underlying

Name

 

Option Awards

 

RSU Awards

Seth H.Z. Fischer

 

160,000

 

 —

John Hubbard, Ph.D.

 

188,000

 

 —

Abhijeet Lele

 

188,000

 

 —

William T. McKee

 

188,000

 

 —

Ajit S. Shetty, Ph.D.

 

174,000

 

 —

James P. Tursi, M.D.

 

188,000

 

 —

 

Non‑Employee Director Compensation

For 2019, each member of our board of directors who is not an employee of Agile received the following cash compensation for board services, as applicable:

·

$40,000 per year for service as a board of directors member;

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·

$20,000 per year for service as lead independent director;

·

$15,000 per year for service as chairman of the audit committee;

·

$12,500 per year for service as chairman of the compensation committee;

·

$12,500 per year for service as chairman of the finance committee;

·

$7,500 per year for service as chairman of the nominating and corporate governance committee;

·

$12,500 per year for service as chairman of the science and technology committee; and

·

$5,000 per year for service as a member on each committee, except each member of the audit committee received $7,500 per year for service in that role.

Beginning in 2020, the compensation for service as a board of directors member was raised to $45,000 per year.

Non‑employee members of our board of directors receive automatic grants of non‑statutory stock options under our 2014 Amended and Restated Incentive Compensation Plan. Each non‑employee director joining our board of directors will automatically be granted equity awards totalling $150,000 in value split equally between a non‑statutory stock option to purchase shares of common stock with an exercise price equal to the fair market value of our common stock on the grant date and a restricted stock unit, or RSU. The shares subject to each initial option grant and RSU will vest in three successive equal annual installments over the 3‑year period measured from the date of the non‑employee director’s election to our board of directors, subject to the non‑employee director’s continued board service through each vesting date and provided that the director attends at least 75% of the board meetings held during each respective year of board service.

In addition, beginning in 2020 on the date of each annual meeting of our stockholders, each non‑employee director will automatically be granted equity awards totalling $75,000 in value split equally between a  non‑statutory stock option to purchase shares of our common stock on that date with an exercise price equal to the fair market value of our common stock on the grant date and an RSU. In 2019, each non‑employee director received a stock option to purchase 75,000 shares of common stock. The shares subject to each annual grant will vest on the first anniversary of the grant date, subject to the non‑employee director’s continued board service through such date and provided that the non‑employee director attends at least 75% of the board meetings held during such year of board service. The decision to establish a value of equity awards and to equally split the awards netween stock option shares and RSUs was based on a review of director equity compensation by our board that included participation by the board’s compensation committee advisor, PayGovernance LLC. In making this determination, our board of directors considered our business plan, our stock price and potential dilution to stockholders, and the need to adequately compensate our directors for their service.

The shares subject to each option grant or RSU under the director compensation policy will immediately vest upon (i) an acquisition of the Company by merger or asset sale, (ii) the successful completion of a tender offer for more than 50% of our outstanding voting stock or (iii) a change in the majority of our board of directors effected through one or more proxy contests for board membership, or a Change in Control. All automatic director options have a maximum term of ten years.

We will also continue to reimburse our non‑employee directors for their reasonable out‑of‑pocket expenses incurred in attending board and committee meetings.

Limitation of Liability and Indemnification Arrangements

As permitted by the DGCL, we have adopted provisions in our amended and restated certificate of incorporation and amended and restated by‑laws that limit or eliminate the personal liability of our directors.

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Consequently, a director will not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:

·

any breach of the director’s duty of loyalty to us or our stockholders;

·

any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

·

any unlawful payments related to dividends or unlawful stock repurchases, redemptions or other distributions; or

·

any transaction from which the director derived an improper personal benefit.

These limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.

In addition, our amended and restated by‑laws provide that we will:

·

indemnify our directors, officers and, in the discretion of our board of directors, certain employees to the fullest extent permitted by the Delaware General Corporation Law; and

·

advance expenses, including attorneys’ fees, to our directors and, in the discretion of our board of directors, to our officers and certain employees, in connection with legal proceedings, subject to limited exceptions.

We have entered into separate indemnification agreements with our directors and executive officers. These agreements, among other things, provide for indemnification of our directors and executive officers for certain expenses, judgments, fines and settlement amounts, among others, incurred by such persons in any action or proceeding arising out of such person’s services as a director or executive officer in any capacity with respect to any employee benefit plan or as a director, partner, trustee or agent of another entity at our request. We believe that these indemnification agreements, along with the above-referenced provisions of our amended and restated certificate of incorporation and amended and restated bylaws, are necessary to attract and retain qualified persons as directors and executive officers.

We also maintain general liability insurance to provide insurance coverage to our directors and officers for losses arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act of 1933, as amended, or the Securities Act. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling the registrant pursuant to the foregoing provisions, we have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

These provisions may discourage stockholders from bringing a lawsuit against our directors and officers in the future for any breach of their fiduciary duties. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors, officers and certain employees pursuant to these indemnification provisions. We believe that these provisions, the indemnification agreements and the insurance are necessary to attract and retain talented and experienced directors and officers.

Stockholder Communications with the Board of Directors

Stockholders wishing to communicate with the board of directors or with an individual member of the board of directors may do so by writing to the board of directors or to the particular member of the board of directors, care of the Corporate Secretary by mail to our principal executive offices, Attention: Corporate Secretary. The envelope should indicate that it contains a stockholder communication. All such stockholder communications will be forwarded to the director or directors to whom the communications are addressed.

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EXECUTIVE OFFICERS

The following table provides information concerning our executive officers as of April 24, 2020:

Name

    

Age

    

Position

Al Altomari

 

61

 

Chairman and Chief Executive Officer

Dennis P. Reilly

 

61

 

Senior Vice President and Chief Financial Officer

Geoffrey P. Gilmore

 

54

 

Senior Vice President, General Counsel and Corporate Secretary

Robert G. Conway

 

63

 

Senior Vice President and Chief Supply Chain Officer

 

Al Altomari.  Please see Mr. Altomari’s biography on page 12 of this proxy statement under the section entitled “Proposal One—Election of Directors—Incumbent Class I Directors Whose Terms Expire in 2021.”

Dennis P. Reilly.  Mr. Reilly joined Agile in August of 2019 as our Senior Vice President and Chief Financial Officer.  Mr. Reilly has had significant experience with commercial companies in the pharmaceutical and diagnostics sectors.  From 2017 to 2019, he served as Chief Financial and Chief Operating Officer of Invisible Sentinel, Inc., a private company, which BioMerieux acquired in February 2019.  From 2009 to 2017, he served as Chief Financial Officer of NeoStrata Company, Inc., a privately held global leader in dermocosmetics, which was sold to Johnson & Johnson Consumer Inc. in 2016.  From 2005 to 2008, he served as the Chief Financial Officer, and prior to that as Controller, of Barrier Therapeutics, Inc., a public dermatology focused specialty pharmaceutical company, which was sold to Stiefel Laboratories, Inc. in 2008.  Mr. Reilly was the Corporate Controller at the Medicines Company from 2002 to 2005.  In addition, he held positions of increasing responsibilities at Mobil Oil Corporation, which included financial statement preparation, internal audit, SEC reporting, and financial analysis.  Mr. Reilly is a C.P.A., who received his B.S. in Accounting from Villanova University and his M.B.A. from Virginia Tech.

Geoffrey P. Gilmore.  Mr. Gilmore has been our General Counsel since August 2014. From 2012 to April 2016, Mr. Gilmore was a principal of Life Sciences Advisory Services, providing consulting services to the pharmaceutical and life science industries. He served as Senior Vice President, General Counsel and Corporate Secretary of Amicus Therapeutics, Inc., a public bio‑pharmaceutical company, from 2008 to 2012. Prior to joining Amicus, Mr. Gilmore spent 10 years at Bristol‑Myers Squibb where he held roles of increasing responsibility in the legal department with the Commercial, Intellectual Property, and R&D legal groups, served in the Office of the Corporate Secretary and then reported to the General Counsel as Vice‑President and Senior Counsel, Corporate Securities. Mr. Gilmore began his legal career in the business and finance groups at Philadelphia based law firms, Ballard Spahr LLP and Montgomery McCracken Walker & Rhoads LLP. Mr. Gilmore received his B.A. degree from Franklin and Marshall College, and his J.D. from the University of Michigan Law School.

Robert G. Conway.  Mr. Conway has served as our Senior Vice President and Chief Supply Chain Officer since January 2020. Prior to that, he served as our Senior Vice President, Enterprise Planning and Information Management since October 2017, as our Senior Vice President of Operations from 2014 to 2017 and as our Chief Development Officer and Vice President of Operations from 2004 to 2014. Mr. Conway has over thirty years of practice in U.S. and international operations with an extensive background in the medical device, pharmaceutical and consumer products industries. Mr. Conway has also previously served as Principal of R. G. Conway and Associates, an independent engineering and project management‑consulting firm. Prior to consulting in 1997, Mr. Conway began his career in healthcare with Johnson & Johnson and later joined a Johnson & Johnson supported venture‑backed medical device company operating as President and Chief Operating Officer. Mr. Conway holds a B.S. degree in Mechanical Engineering from New Jersey Institute of Technology.

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EXECUTIVE COMPENSATION

Summary Compensation Table

The following table provides information concerning the compensation paid to our President and Chief Executive Officer, and our other two most highly compensated individuals,  for the fiscal years ended December 31, 2019 and 2018. We refer to these individuals as our named executive officers.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

 

    

 

 

    

 

 

    

Restricted

    

 

 

    

Nonequity

    

 

 

    

 

 

 

 

 

 

 

 

 

 

 

 

Stock

 

 

 

 

Incentive

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unit

 

Option

 

Plan

 

All Other

 

 

 

Name and Principal Position

 

Year

 

Salary

 

Bonus(1)

 

Awards

 

Awards(2)

 

Compensation

 

Compensation

 

Total

Al Altomari

 

2019

 

$

506,733

 

$

 —

 

$

 —

 

$

330,266

 

$

441,000

(5)

$

23,372

(7)  

$

1,301,371

Chairman & Chief

 

2018

 

$

494,400

 

$

100,000

 

$

122,186

(3)  

$

630,440

(4)  

$

149,550

(6)  

$

23,305

 

$

1,519,881

Executive Officer

 

  

 

 

  

 

 

  

 

 

 

 

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Geoffrey P. Gilmore (10)

 

2019

 

$

337,850

 

$

 —

 

$

 —

 

$

230,846

 

$

225,000

(5)

$

29,428

(8)

$

823,124

Sr. VP, General Counsel

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

& Corporate Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Robert G. Conway (10)

 

2019

 

$

256,250

 

$

 —

 

$

 —

 

$

113,375

 

$

167,000

(5)

$

20,862

(9)

$

557,487

Sr. VP & Chief Supply

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chain Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


(1)

Represents an incentive award granted in connection with a retention plan adopted by the Company on June 20, 2018, or the 2018 Retention Plan, to induce employees to remain continuously employed by the Company through December 31, 2018, which was paid on January 4, 2019.

(2)

In accordance with SEC rules, this column reflects the aggregate grant date fair value of the option awards granted computed in accordance with Financial Accounting Standard Board Accounting Codification Topic 718 for stock‑based compensation transactions (ASC 718). Assumptions used in the calculation of these amounts are included in Note 10 to our financial statements in our Annual Report on Form 10‑K for the year ended December 31, 2019. These amounts do not reflect the actual economic value that will be realized by the named executive officer upon the vesting of the stock options, the exercise of the stock options, or the sale of the common stock underlying such stock options.

(3)

Represents total grant date value of restricted stock units that were granted on January 24, 2018, which is based on the closing price of Agile common stock on the grant date and the total number of restricted stock units granted. These restricted stock units vested and were delivered on January 24, 2019. This amount does not reflect the actual economic value that will be realized by the named executive officer.

(4)

Includes grant date fair value of stock option awards that were granted on June 20, 2018, in connection with the 2018 Retention Plan, in order to induce employees to remain employed by the Company through December 31, 2019.

(5)

Represents an annual incentive award earned as result of our performance in the 2019 fiscal year paid in February 2020. The amounts included reflect the compensation committee’s determination to set the level of achievement at 160% of the target level of certain corporate objectives established by our board of directors for the year ended December 31, 2019, as discussed further below.

(6)

Represents an annual incentive award earned as result of our performance in the 2018 fiscal year paid in February 2019.  The amounts included reflect the compensation committee’s determination to set the level of achievement at 55% of the target level of certain corporate objectives established by our board of directors for the year ended December 31, 2018.

(7)

Represents $20,862 for premiums paid by us for health and group life insurance and $2,510 paid by us for life insurance.

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(8)

Represents $29,428 for premiums paid by us for health and group life insurance.

(9)

Represents $20,862 for premiums paid by us for health and group life insurance.

(10)

Messrs. Gilmore and Conway were not previously Named Executive Officers.  Accordingly, this Summary Compensation Table sets forth their 2019 compensation information only.

Narrative Explanation of Certain Aspects of the Summary Compensation Table

Pursuant to employment agreements entered into with us, each of our named executive officers is eligible to receive (i) a base salary and (ii) an annual performance bonus payable in cash, stock or a combination of both at the discretion of the compensation committee of the board of directors. The target amount of each named executive officer’s annual performance bonus is a percentage of his or her base salary, as set forth in the table below, and the actual amount payable is based on the achievement of individual and corporate objectives. In addition, in 2019, we implemented a retention plan, or the 2019 Retention Plan, to induce employees to remain with the Company as further described below.

Base Salary and Annual Performance Bonus

The base salary and target annual performance bonus for each of our named executive officers for our fiscal year ended December 31, 2019, is listed in the table below:

 

 

 

 

 

 

 

    

2019

    

2019 Target

 

Name

 

Base Salary

 

Performance Bonus

 

Al Altomari

 

506,733

 

55

%

Geoffrey P. Gilmore

 

337,850

 

40

%

Robert G. Conway

 

256,250

 

40

%

 

For 2020, the board approved a 3.5%  merit-based increase in the base salary for each officer, which will become effective as of March 1, 2020.    The salaries for Mr. Altomari, Mr. Gilmore and Mr. Conway were further adjusted to better align with salaries in our peer group in the following percentages: (i) Mr. Altomari, 7%, (ii) Mr. Gilmore, 14%, and (iii) Mr. Conway, 12%. As of March 1, 2020,  Mr. Altomari’s salary increased to $563,914,  Mr. Gilmore’s salary increased to $413,000 and Mr. Conway’s salary increased to $300,100.

Objectives for the named executive officers’ target bonuses for our fiscal year ended December 31, 2019 included two general categories: (1) activities to support the approval of Twirla®, collectively weighted at 80% of the total bonus potential, and (2) management of our financial and liquidity position for 2019, collectively weighted at 20% of the total bonus potential.

Objectives for the 2019 named executive officer target bonuses were deemed to be achieved at 160%, which in the discretion of the compensation committee reflected that (i) while the new drug application (“NDA”) for Twirla was not approved by the U.S. Food and Drug Administration (“FDA”) during 2019, the Company had obtained an overwhelmingly positive vote (14-1 with 1 abstention) in support of approval of the Twirla NDA at the advisory committee convened by the FDA and the FDA had not issued a complete response letter and extended the decision date for approval of the Twirla NDA into 2020, and (ii) the Company had significantly overachieved its goal to raise additional capital and manage its cash position to enable it to pursue approval of Twirla. The named executive officers received bonus payments equal to the applicable target amounts set forth above.

Each of our named executive officers is eligible to receive certain benefits if his or her employment is terminated under certain circumstances, as described under “Severance and Change in Control Benefits” below.

2019 Retention Plan

On July 3, 2019, we adopted the 2019 Retention Plan to provide (i) cash retention payments to all remaining employees of the Company, except for Mr. Altomari, in order to induce such employees to remain employed by the

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Company through the approval of Twirla, and (ii) stock option grants to all remaining employees of the Company, except for Mr. Altomari, in order to induce such employees to remain employed by the Company through the approval of Twirla.

Employees who participated in the Retention Plan and (i) remained continuously employed by the Company through the approval of Twirla were paid a lump‑sum cash payment in an amount determined by the compensation committee of our board of directors at the time of the adoption of the 2019 Retention Plan. Eligible employees who terminated service prior to the approval of Twirla did not receive retention payments. The cash retention payments were made in February 2020.

In addition, all remaining employees were granted a stock option to purchase the number of shares of common stock of the Company as approved by our board’s compensation committee, with a per share exercise price of $1.48 which was equal to the closing price of the Company’s common stock as reported by Nasdaq on July 3, 2019. Each option will vest in two equal 50% installments on each of July 3, 2020 and December 31, 2020.    In addition, the vesting schedule for stock options granted in January 2019 was amended for all employees holding such options who were employed on July 3, 2019, except for Mr. Altomari, as follows:  50% of the option vested on January 29, 2020, 25% will vest on June 30, 2020 and the remaining 25% will vest on December 31, 2020.

Messrs. Gilmore and Conway are participating in the 2019 Retention Plan. On February 19, 2020,  Mr. Gilmore received a cash retention payment of $100,000 and Mr. Conway received a cash retention payment of $50,000. In addition, Mr. Gilmore was granted a stock option to purchase 150,000 shares of the Company’s common stock and Mr. Conway was granted a stock option to purchase 75,000 shares of the Company’s common stock, each on the terms described above.

Equity Compensation

We have historically offered stock options as the primary long‑term incentive vehicle to our employees, including our named executive officers, as the long‑term incentive component of our compensation program. Stock options allow employees to purchase shares of our common stock at a price per share equal to the fair market value of our common stock on the date of grant and may or may not be intended to qualify as “incentive stock options” for U.S. federal income tax purposes. We typically grant stock options to new hires upon their commencing employment with us. Awards to newly hired employees generally vest with respect to 25% of the total number of option shares on the first anniversary of the grant date and in equal monthly installments over the following 36 months.

As part of an annual compensation evaluation of our named executive officers at the beginning of each year, the compensation committee of the board of directors considers granting stock options and other long‑term incentive vehicles to our named executive officers based on such executive’s individual performance for the preceding year and as an incentive for future performance. Stock options are granted under our 2014 Amended and Restated Incentive Compensation Plan, or the 2014 Plan, and generally vest with respect to 25% of the total number of option shares on the first anniversary of the grant date and in equal monthly installments over the following 36 months.

Effective January 22, 2020, the compensation committee of our board of directors granted to:

·

Mr. Altomari stock options to purchase (i) 833,333 shares of our common stock at an exercise price of $2.83 per share, which was the closing price of our common stock on January 22, 2020 as reported by Nasdaq, and (ii) 26,502 restricted stock units which fully vest and will be settled in common stock in one year.

·

Mr. Gilmore stock options to purchase (i) 316,667 shares of our common stock at an exercise price of $2.83 per share, which was the closing price of our common stock on January 22, 2020 as reported by Nasdaq, and (ii) 10,071 restricted stock units which fully vest and will be settled in common stock in one year.

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·

Mr. Conway stock options to purchase (i) 197,222 shares of our common stock at an exercise price of $2.83 per share, which was the closing price of our common stock on January 22, 2020 as reported by Nasdaq, and (ii) 6,272 restricted stock units which fully vest and will be settled in common stock in one year.

The compensation committee made its decision to grant stock options to our named executive officers, based on their individual performance for 2019.

As described under “Outstanding Equity Awards as of December 31, 2019” below, all outstanding and unvested options held by our named executive officers are subject to accelerated vesting in the event we experience a change in control and the stock options are not assumed by the successor corporation, or at the discretion of the board of directors. In addition, all outstanding equity awards held by our named executive officers are subject to accelerated vesting in the event of a termination without cause or resignation for good reason that occurs in connection with a change in control, as described under “Severance and Change in Control Benefits” below.

Outstanding Equity Awards as of December 31, 2019

The following table sets forth information regarding each outstanding equity award held by each of our named executive officers as of December 31, 2019. The number of shares subject to each award and, where applicable, the exercise price per share, reflect all changes as a result of our capitalization adjustments.

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The vesting schedule applicable to each outstanding award is described in the footnotes to the table below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

 

    

Number of

    

Number of

    

 

 

    

 

    

 

 

 

 

 

 

 

Securities

 

Securities

 

 

 

 

 

 

 

 

 

 

 

 

 

Underlying

 

Underlying

 

 

 

 

 

 

 

 

 

 

 

 

 

Unexercised

 

Unexercised

 

Option

 

 

 

 

 

 

 

 

 

 

Options

 

Options

 

Exercise

 

Option

 

 

 

 

 

 

Grant

 

Exercisable

 

Unexercisable

 

Price

 

Expiration

 

 

 

 

Name

 

Date(1)

 

(#)

 

(#)

 

($)(2)

 

Date

 

 

 

 

Al Altomari

 

3/10/2010

 

16,541

 

 —

 

$

0.71

 

3/9/2020

 

 

 

 

 

 

 

12/9/2010

 

144,599

 

 

$

1.76

 

12/8/2020

 

 

 

 

 

 

 

12/6/2012

 

262,145

 

 

$

4.38

 

12/5/2022

 

 

 

 

 

 

 

6/24/2014

 

72,500

 

 

$

10.75

 

6/23/2024

 

 

 

 

 

 

 

2/19/2015

 

90,000

 

 —

 

$

9.45

 

2/18/2025

 

 

 

 

 

 

 

2/19/2015

 

90,000

 

 —

 

$

10.75

 

2/18/2025

 

 

 

 

 

 

 

2/8/2016

 

95,822

 

4,178

 

$

5.93

 

2/7/2026

 

 

 

 

 

 

 

1/25/2017

 

175,000

 

65,000

 

$

2.26

 

1/24/2027

 

 

 

 

 

 

 

1/24/2018

 

122,663

 

133,337

 

$

3.46

 

1/23/2028

 

 

 

 

 

 

 

6/20/2018

 

150,000

 

 —

 

$

0.58

 

6/19/2028

 

 

 

 

 

 

 

1/29/2019

 

 —

 

540,900

 

$

0.84

 

1/28/2029

 

 

 

 

 

 

 

1/29/2019

 

 —

 

154,400

 

$

2.50

 

1/28/2029

 

 

 

 

 

Geoffrey P. Gilmore

 

8/1/2014

 

30,000

 

 —

 

$

6.00

 

7/31/2024

 

 

 

 

 

 

 

2/19/2015

 

21,000

 

 —

 

$

9.45

 

2/18/2025

 

 

 

 

 

 

 

2/8/2016

 

28,750

 

1,250

 

$

5.93

 

2/7/2026

 

 

 

 

 

 

 

4/18/2016

 

27,500

 

2,500

 

$

6.46

 

4/17/2026

 

 

 

 

 

 

 

1/25/2017

 

102,091

 

37,909

 

$

2.26

 

1/24/2027

 

 

 

 

 

 

 

1/24/2018

 

51,269

 

55,731

 

$

3.46

 

1/23/2028

 

 

 

 

 

 

 

6/20/2018

 

150,000

 

 —

 

$

0.58

 

6/19/2028

 

 

 

 

 

 

 

1/29/2019

(3)

 —

 

172,600

 

$

0.84

 

1/28/2029

 

 

 

 

 

 

 

1/29/2019

(3)

 —

 

38,500

 

$

2.50

 

1/28/2029

 

 

 

 

 

 

 

7/3/2019

(4)

 —

 

150,000

 

$

1.48

 

7/2/2029

 

 

 

 

 

Robert G. Conway

 

12/9/2010

 

4,149

 

 —

 

$

1.76

 

12/8/2020

 

 

 

 

 

 

 

12/6/2012

 

46,485

 

 

$

4.38

 

12/5/2022

 

 

 

 

 

 

 

2/19/2015

 

30,000

 

 —

 

$

9.45

 

2/18/2025

 

 

 

 

 

 

 

2/8/2016

 

45,535

 

1,965

 

$

5.93

 

2/7/2026

 

 

 

 

 

 

 

1/25/2017

 

27,716

 

10,284

 

$

2.26

 

1/24/2027

 

 

 

 

 

 

 

1/24/2018

 

40,731

 

44,269

 

$

3.46

 

1/23/2028

 

 

 

 

 

 

 

6/20/2018

 

75,000

 

 —

 

$

0.58

 

6/19/2028

 

 

 

 

 

 

 

1/29/2019

(3)

 —

 

85,000

 

$

0.84

 

1/28/2029

 

 

 

 

 

 

 

1/29/2019

(3)

 —

 

15,000

 

$

2.50

 

1/28/2029

 

 

 

 

 

 

 

7/3/2019

(4)

 —

 

75,000

 

$

1.48

 

7/2/2029

 

 

 

 

 


(1)

Except as otherwise indicated, the option awards listed in the table above vest with respect to 25% of the shares one year following the date of grant and with respect to 1/36th of the remaining shares on each monthly anniversary thereafter over the following three years, subject to the executive’s continuous service with us through the vesting date.

(2)

All of the option awards listed in the table above were granted with a per share exercise price equal to or above the fair market value of our common stock on the date of grant.

(3)

50% of the options vested on January 29, 2020. The remaining options vest as follows: 25% on June 30, 2020 and 25% on December 31, 2020.

(4)

50% of the options vest on July 3, 2020 and 50% of the options vest on December 31, 2020.

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Severance and Change in Control Benefits

Al Altomari

We entered into an employment agreement with Mr. Altomari on October 11, 2010, which was amended on December 18, 2012, and amended and restated on April 12, 2016. Pursuant to the terms of the agreement, Mr. Altomari is entitled to receive certain benefits in the event his employment is terminated.

Payments Upon Termination Absent a Change in Control.

If Mr. Altomari terminates his employment for good reason or if we terminate his employment without reasonable cause (other than due to death or disability), in either case in the absence of a change in control, he is entitled to receive the following severance benefits: (i) base salary continuation for a period of 12 months, and (ii) reimbursement of Mr. Altomari’s health insurance premiums for a period of 12 months following the date of his termination or until Mr. Altomari obtains other employment, whichever is sooner. In the event of a change in control following his termination, any base salary continuation payments still due to Mr. Altomari shall be paid in full upon the change in control.

In the event Mr. Altomari’s employment terminates as a result of his disability, he will be entitled to receive (i) base salary continuation for a period of 12 months following the date of his termination, and (ii) reimbursement of Mr. Altomari’s health insurance premiums for a period of 12 months following the date of his termination due to his disability or until Mr. Altomari obtains other employment, whichever is sooner.

Payments Upon Termination in Connection with a Change in Control.

If Mr. Altomari terminates his employment for good reason or if we terminate his employment without reasonable cause (other than due to death or disability), in either case upon or within 12 months following a change in control, he is entitled to receive the following severance benefits: (i) a lump‑sum cash payment in the amount of 1.5 times his then annual rate of base salary, (ii) a lump sum cash payment equal to Mr. Altomari’s target annual bonus for the year in which his termination occurs, (iii) reimbursement of Mr. Altomari’s health insurance premiums for a period of 18 months following the date of his termination or until Mr. Altomari obtains other employment, whichever is sooner and (iv) each outstanding equity award shall automatically vest in full.

Notwithstanding the foregoing, any payments and benefits that would otherwise be paid to Mr. Altomari (whether or not under his employment agreement) in connection with a change in control of the Company will be reduced to the extent necessary to ensure that he is not subject to any excise tax under Internal Revenue Code Section 4999 in connection with any change in control of the Company or his subsequent termination of employment. However, such reduction will not be made if Mr. Altomari would be better off (on an after‑tax basis) receiving all payments and benefits and paying all excise and income taxes under Internal Revenue Code Section 4999.

Under Mr. Altomari’s employment agreement, the terms below are generally defined as follows:

“Change in Control” means (i) a merger or consolidation in which more than 50% of the voting securities of the Company are transferred and the composition of the board after such transaction constitutes less than 50% of the members of the board prior to the transaction; (ii) any acquisition, directly or indirectly, of beneficial ownership of more than 50% of the total combined voting power of the Company, other than in a capital‑raising transaction; or (iii) the sale, transfer, exclusive worldwide license or other disposition of all or substantially all of the assets of the Company.

“Good reason” means Mr. Altomari’s resignation following notice to the Company of, and failure by the Company to cure, the occurrence of any of the following: (i) an office relocation of more than 50 miles; (ii) failure by the Company to comply with any material term of the employment agreement; or (iii) the demotion to a lesser position or substantial diminution of authority, duties or responsibilities, except for a reduction in title, position, responsibilities or duties solely by virtue of the Company being acquired and made

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part of, or operated as a subsidiary of, a larger company, so long as the new duties and responsibilities are reasonably commensurate with Mr. Altomari’s experience.

“Reasonable cause” means (i) an act or omission that constitutes dishonesty, disloyalty, fraud, deceit, gross negligence, willful misconduct or recklessness, including, but not limited to Mr. Altomari’s willful violation of the Company’s bylaws or code of conduct, and that is directly or indirectly materially detrimental to the Company’s best interest; (ii) intentional failure to perform any lawful duties assigned by the board after receiving notice and an opportunity to cure; (iii) the commission of any act that constitutes a felony; or (iv) any material breach of certain sections of the employment agreement.

The payment of any severance compensation described above is subject to Mr. Altomari’s execution and non‑revocation of a general release of claims against the Company, and his compliance with non‑competition and non‑solicitation restrictive covenants for an 18‑month period after his termination without cause or for good reason upon or within 12 months following a change of control and a 12‑month period following his termination date in all other cases.

Geoffrey P. Gilmore

We entered into an employment agreement with Mr. Gilmore on April 12, 2016, which was amended on July 3, 2019. Pursuant to the terms of the agreement, as amended, Mr. Gilmore is entitled to receive certain benefits in the event his employment is terminated.

Payments Upon Termination Absent a Change in Control.

If Mr. Gilmore terminates his employment for good reason or if we terminate his employment without reasonable cause (other than due to death or disability), in either case in the absence of a change in control, he is entitled to receive the following severance benefits: (i) base salary continuation for a period of 12 months, and (ii) reimbursement of Mr. Gilmore’s health insurance premiums for a period of 12 months following the date of his termination or until he obtains other employment, whichever is sooner. In the event of a change in control following his termination, any base salary continuation payments still due to Mr. Gilmore shall be paid in full upon the change in control.

In the event Mr. Gilmore’s employment terminates as a result of his disability, he will be entitled to receive (i) base salary continuation for a period of 12 months following the date of his termination, and (ii) reimbursement of his health insurance premiums for a period of 12 months following the date of his termination due to his disability or until he obtains employment, whichever is sooner.

Payments Upon Termination in Connection with a Change in Control.

If Mr. Gilmore terminates his employment for good reason or if we terminate his employment without reasonable cause (other than due to death or disability), in either case upon or within 12 months following a change in control, he is entitled to receive the following severance benefits: (i) a lump‑sum cash payment in the amount of 1.0 times his then annual rate of base salary, (ii) a lump sum cash payment equal to his target annual bonus for the year in which his termination occurs, (iii) reimbursement of his health insurance premiums for a period of 12 months following the date of his termination or until he obtains other employment, whichever is sooner and (iv) each outstanding equity award shall automatically vest in full.

Notwithstanding the foregoing, any payments and benefits that would otherwise be paid to Mr. Gilmore (whether or not under his employment agreement) in connection with a change in control of the Company will be reduced to the extent necessary to ensure that he is not subject to any excise tax under Internal Revenue Code Section 4999 in connection with any change in control of the Company or his subsequent termination of employment. However, such reduction will not be made if Mr. Gilmore would be better off (on an after‑tax basis) receiving all payments and benefits and paying all excise and income taxes under Internal Revenue Code Section 4999.

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Under Mr. Gilmore’s employment agreement, the terms below are generally defined as follows:

“Change in Control” means (i) a merger or consolidation in which more than 50% of the voting securities of the Company are transferred and the composition of the board after such transaction constitutes less than 50% of the members of the board prior to the transaction; (ii) any acquisition, directly or indirectly, of beneficial ownership of more than 50% of the total combined voting power of the Company, other than in a capital‑raising transaction; or (iii) the sale, transfer, exclusive worldwide license or other disposition of all or substantially all of the assets of the Company.

“Good reason” means Mr. Gilmore’s resignation following notice to the Company of, and failure by the Company to cure, the occurrence of any of the following: (i) an office relocation of more than 50 miles; (ii) failure by the Company to comply with any material term of the employment agreement; or (iii) the demotion to a lesser position or substantial diminution of authority, duties or responsibilities, except for a reduction in title, position, responsibilities or duties solely by virtue of the Company being acquired and made part of, or operated as a subsidiary of, a larger company, so long as the new duties and responsibilities are reasonably commensurate with Mr. Gilmore’s experience.

“Reasonable cause” means (i) an act or omission that constitutes dishonesty, disloyalty, fraud, deceit, gross negligence, willful misconduct or recklessness, including, but not limited to Mr. Gilmore’s willful violation of the Company’s bylaws or code of conduct, and that is directly or indirectly materially detrimental to the Company’s best interest; (ii) intentional failure to perform any lawful duties assigned by the Board after receiving notice and an opportunity to cure; (iii) the commission of any act that constitutes a felony; or (iv) any material breach of certain sections of the employment agreement.

The payment of any severance compensation described above is subject to Mr. Gilmore’s execution and non‑revocation of a general release of claims against the Company, and his compliance with non‑competition and non‑solicitation restrictive covenants for a 12‑month period after his termination without cause or for good reason upon or within 12 months following a change of control and a 6‑month period following his termination date in all other cases.

Robert G. Conway

We entered into an employment agreement with Mr. Conway on October 31, 2017, which was amended on January 22, 2020. Pursuant to the terms of the agreement, as amended, Mr. Conway is entitled to receive certain benefits in the event his employment is terminated.

Payments Upon Termination Absent a Change in Control.

If Mr. Conway terminates his employment for good reason or if we terminate his employment without reasonable cause (other than due to death or disability), in either case in the absence of a change in control, he is entitled to receive the following severance benefits: (i) base salary continuation for a period of 12 months, and (ii) reimbursement of his health insurance premiums for a period of 12 months following the date of his termination or until he obtains other employment, whichever is sooner. In the event of a change in control following his termination, any base salary continuation payments still due to Mr. Conway shall be paid in full upon the change in control.

In the event Mr. Conway’s employment terminates as a result of his disability, he will be entitled to receive (i) base salary continuation for a period of 12 months following the date of his termination, and (ii) reimbursement of his health insurance premiums for a period of 12 months following the date of his termination due to his disability or until he obtains employment, whichever is sooner.

Payments Upon Termination in Connection with a Change in Control.

If Mr. Conway terminates his employment for good reason or if we terminate his employment without reasonable cause (other than due to death or disability), in either case upon or within 12 months following a change in control, he is entitled to receive the following severance benefits: (i) a lump‑sum cash payment in the amount of 1.0

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times his then annual rate of base salary, (ii) a lump sum cash payment equal to his target annual bonus for the year in which his termination occurs, (iii) reimbursement of his health insurance premiums for a period of 12 months following the date of his termination or until he obtains other employment, whichever is sooner and (iv) each outstanding equity award shall automatically vest in full.

Notwithstanding the foregoing, any payments and benefits that would otherwise be paid to Mr. Conway (whether or not under his employment agreement) in connection with a change in control of the Company will be reduced to the extent necessary to ensure that he is not subject to any excise tax under Internal Revenue Code Section 4999 in connection with any change in control of the Company or his subsequent termination of employment. However, such reduction will not be made if Mr. Conway would be better off (on an after‑tax basis) receiving all payments and benefits and paying all excise and income taxes under Internal Revenue Code Section 4999.

Under Mr. Conway’s employment agreement, the terms below are generally defined as follows:

“Change in Control” means (i) a merger or consolidation in which more than 50% of the voting securities of the Company are transferred and the composition of the board after such transaction constitutes less than 50% of the members of the board prior to the transaction; (ii) any acquisition, directly or indirectly, of beneficial ownership of more than 50% of the total combined voting power of the Company, other than in a capital‑raising transaction; or (iii) the sale, transfer, exclusive worldwide license or other disposition of all or substantially all of the assets of the Company.

“Good reason” means Mr. Conway’s resignation following notice to the Company of, and failure by the Company to cure, the occurrence of any of the following: (i) an office relocation of more than 50 miles; (ii) failure by the Company to comply with any material term of the employment agreement; or (iii) the demotion to a lesser position or substantial diminution of authority, duties or responsibilities, except for a reduction in title, position, responsibilities or duties solely by virtue of the Company being acquired and made part of, or operated as a subsidiary of, a larger company, so long as the new duties and responsibilities are reasonably commensurate with Mr. Conway’s experience.

“Reasonable cause” means (i) an act or omission that constitutes dishonesty, disloyalty, fraud, deceit, gross negligence, willful misconduct or recklessness, including, but not limited to Mr. Conway’s willful violation of the Company’s bylaws or code of conduct, and that is directly or indirectly materially detrimental to the Company’s best interest; (ii) intentional failure to perform any lawful duties assigned by the board after receiving notice and an opportunity to cure; (iii) the commission of any act that constitutes a felony; or (iv) any material breach of certain sections of the employment agreement.

The payment of any severance compensation described above is subject to Mr. Conway’s execution and non‑revocation of a general release of claims against the Company, and his compliance with non‑competition and non‑solicitation restrictive covenants for a 12‑month period after his termination without cause or for good reason upon or within 12 months following a change of control and a 6‑month period following his termination date in all other cases.

Employee Benefits and Perquisites

Our named executive officers are eligible to participate in our health and welfare plans to the same extent as all full‑time employees would be eligible generally, including reimbursement of certain medical expenses incurred by such named executive officer and, if applicable, his or her eligible dependents, through a health reimbursement account funded by us.

Effective April 12, 2016, the compensation committee of our board of directors approved a life insurance benefit for our named executive officers in an amount equal to up to twice the named executive officer’s base salary and target bonus capped at $1,000,000.

We do not generally provide our named executive officers with perquisites or other personal benefits (other than severance benefits, and the life insurance benefit, as described above).

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PROPOSAL TWO

NON-BINDING ADVISORY VOTE ON THE 2019 COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS

Information Regarding the Non-Binding Advisory Vote on the 2019 Compensation of our Named Executive Officers

Pursuant to Section 14A of the Exchange Act, we are holding a non-binding advisory stockholder vote on the compensation of our named executive officers, as described in the “Executive Compensation” section, the tabular disclosure regarding such compensation, and the accompanying narrative disclosure set forth in this proxy statement. This proposal is commonly known as a “say-on-pay” proposal.  At the Annual Meeting, stockholders will be asked to approve the following resolution:

RESOLVED, that the stockholders of Agile Therapeutics, Inc. approve, on a non-binding advisory basis, the compensation of the Company’s named executive officers, disclosed pursuant to Item 402 of Regulation S-K in the Company’s proxy statement.

The compensation committee oversees and administers our executive compensation program, including the evaluation and approval of compensation plans, policies and programs offered to our named executive officers. Our executive compensation program is designed to meet the following objectives:

·

align management interests with the interests of our stockholders;

·

emphasize the use of “at risk” and performance based compensation to motivate executives to advance our interests; and

·

provide executive compensation packages that are competitive in order to attract and retain executives whose skills are critical to the current and long term success of the Company.

Please read the “Executive Compensation” section starting on page 25 of this proxy statement for a detailed discussion of our executive compensation programs, including information about the 2019 compensation of our Named Executive  Officers.

Vote Required for Approval of this Proposal

The advisory vote on the compensation of our named executive officers will be approved by the affirmative vote of the majority of votes properly cast at the Annual Meeting. Abstentions and broker non-votes will not have an effect on the outcome of this proposal.

While this vote is being conducted on an advisory basis, and is therefore not binding on us, the vote will be carefully considered by the compensation committee and our board. Both our compensation committee and our board value the opinions of our stockholders and, to the extent there is any meaningful vote against the 2019 compensation of our named executive officers, we will consider our stockholders’ concerns and evaluate what actions, if any, may be appropriate to address those concerns. The outcome of the vote, however, will not be construed as overruling any prior decision by the Company, the compensation committee or the board.

Recommendation

THE BOARD RECOMMENDS THAT YOU VOTE “FOR” THE APPROVAL, ON A NON-BINDING ADVISORY BASIS, OF THE 2019 COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS.

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PROPOSAL THREE

NON-BINDING

ADVISORY VOTE ON THE FREQUENCY OF FUTURE ADVISORY VOTES ON THE

COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS

Pursuant to Section 14A of the Exchange Act, we are holding a stockholder advisory vote to determine whether non-binding, advisory votes to approve the compensation of our named executive officers, as in Proposal Two, should be held every one, two or three years. This proposal is commonly known as a “say-on-frequency” proposal.

Following careful consideration, our board of directors has determined that an annual advisory vote to approve the compensation of our named executive officers will allow stockholders to provide regular and direct input regarding our executive compensation policies and practices and will provide the board with timely feedback from our stockholders on this important matter. At the Annual Meeting, stockholders will be asked to approve the following resolution:

RESOLVED, that the stockholders of Agile Therapeutics, Inc. recommend, on a non-binding, advisory basis, whether an advisory vote to approve the compensation of the Company’s named executive officers should occur every one, two or three years.

Vote Required for Approval of this Proposal

Our stockholders have the choice of voting for advisory votes on named executive officer compensation to occur once every one, two or three years. The choice receiving the highest number of votes will be given due regard by, but will not be binding on, our board of directors. However, the board will take into account the outcome of the vote when making future decisions about how often the Company conducts advisory stockholder votes on the compensation of its named executive officers.  Abstentions and broker non-votes will not have any effect on the outcome of this proposal.