UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
IMPRIMIS PHARMACEUTICALS, INC.
(Name of Issuer)
Common Stock, $0.001 PAR VALUE per share
(Title of Class of Securities)
45323A 201
(CUSIP Number)
Dr. Robert J. Kammer
C/O Imprimis Pharmaceuticals, Inc.
12264 El Camino Real, Suite 350
San Diego, CA 92130
858-704-4040
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 10, 2015
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ].
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
(Continued on following pages)
| CUSIP No. 45323A 201 | 13D | Page 2 of 9 Pages |
| 1 | NAMES OF REPORTING PERSONS | |
| Robert J. Kammer, as Trustee of The Robert J. Kammer Living Trust established 6/1/2000 | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
|
| (see instructions) | (a) [ ] | |
| (b) [ ] | ||
| 3 | SEC USE ONLY | |
| 4 | SOURCE OF FUNDS (see instructions) | |
| OO1 | ||
| 5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) | |
| [ ] | ||
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION | |
| U.S.A. |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
|
| 975,058 | ||
| 8 | SHARED VOTING POWER
| |
| 0 | ||
| 9 | SOLE DISPOSITIVE POWER
| |
| 975,058 | ||
| 10 | SHARED DISPOSITIVE POWER
| |
| 0 |
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | |
| 975,058 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | |
| (see instructions) | ||
| [ ] | ||
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 | |
| 10.1%2 | ||
| 14 | TYPE OF REPORTING PERSON (see instructions) |
|
| OO |
1The shares of Common Stock beneficially owned by Robert J. Kammer, as Trustee of The Robert J. Kammer Living Trust established 6/1/2000 (the “Kammer Trust”) were acquired (a) with the working capital of DermaStar International, LLC (“DermaStar”), upon the distribution of such shares from DermaStar to Dr. Kammer, in his capacity as a member of DermaStar, (b) with the personal funds of Dr. Kammer, or (c) as compensation for Dr. Kammer’s services as an advisor to the Issuer and as a director on the Issuer’s Board of Directors.
2 Calculated based on 9,681,646 shares of Common Stock outstanding as of November 11, 2015, as reported in the Quarterly Report on Form 10-Q filed by the Issuer on November 12, 2015.
| CUSIP No. 45323A 201 | 13D | Page 3 of 9 Pages |
| 1 | NAMES OF REPORTING PERSONS | |
| Robert J. Kammer | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | |
| (see instructions) | (a) [ ] | |
| (b) [ ] | ||
| 3 | SEC USE ONLY | |
| 4 | SOURCE OF FUNDS (see instructions) | |
| OO1 | ||
| 5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) |
|
| [ ] | ||
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION |
|
| U.S.A. |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER |
| 993,2562 | ||
| 8 | SHARED VOTING POWER | |
| 0 | ||
| 9 | SOLE DISPOSITIVE POWER | |
| 993,2562 | ||
| 10 | SHARED DISPOSITIVE POWER | |
| 0 |
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
| 993,2562 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | |
| (see instructions) | ||
| [ ] | ||
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 | |
| 10.2%3 | ||
| 14 | TYPE OF REPORTING PERSON (see instructions) |
|
| IN |
1 The shares of Common Stock beneficially owned by Dr. Kammer were acquired (a) with the working capital of DermaStar, upon the distribution of such shares from DermaStar to Dr. Kammer, in his capacity as a member of DermaStar, (b) with the personal funds of Dr. Kammer, or (c) as compensation for Dr. Kammer’s services as an advisor to the Issuer and as a director on the Issuer’s Board of Directors.
2 Consists of (a) 975,058 shares of Common Stock held of record by the Kammer Trust, of which Dr. Kammer is the sole trustee, and (b) 18,198 shares of Common Stock that are subject to restricted stock units (“RSUs”) granted to Dr. Kammer and issuable within 60 days after December 10, 2015.
3 Calculated based on 9,699,844 shares of Common Stock, as follows: (a) 9,681,646 shares of Common Stock outstanding as of November 11, 2015, as reported in the Quarterly Report on Form 10-Q filed by the Issuer on November 12, 2015; and (b) 18,198 shares of Common Stock that are subject to RSUs granted to Dr. Kammer and issuable within 60 days after December 10, 2015.
Explanatory Note:
This Amendment No. 2 to Schedule 13D (the “Amendment”) amends and supplements the Schedule 13D initially filed with the Securities and Exchange Commission (the “Commission”) on August 10, 2012, as amended by Amendment No. 1 filed with the Commission on August 16, 2013 (the “Statement”). This Amendment is filed by Robert J. Kammer and the Kammer Trust (Dr. Kammer and the Kammer Trust, collectively, the “Reporting Persons”) relating to the Reporting Persons’ beneficial ownership of the common stock, par value $0.001 per share (the “Common Stock”), of Imprimis Pharmaceuticals, Inc., a Delaware corporation (the “Issuer”). The Reporting Persons are filing this Amendment to report changes in their respective beneficial ownership since the filing of Amendment No. 1 to the Statement. Except as set forth below, this Amendment does not supplement, restate or amend any of the other information disclosed in the Statement as previously filed. Capitalized terms not defined in this Amendment have the meanings ascribed to them in the Statement as previously filed.
On February 7, 2013 the Issuer effected a one-for-five reverse stock split. All share amounts in this Amendment reflect such reverse stock split.
Item 1. Security and Issuer
The last sentence of Item 1 of the Statement is amended and restated in its entirety to read as follows:
The principal executive offices of the Issuer are located at 12264 El Camino Real, Suite 350, San Diego, California 92130.
Item 2. Identity and Background
Subsections (a), (b) and (d) — (f) of Item 2 of the Statement are amended and restated in their entirety to read as follows:
(a) This Statement is being filed by Robert J. Kammer, as an individual, and Robert J. Kammer, as the Trustee of The Robert J. Kammer Living Trust established 6/1/2000.
(b) The business address of each of the Reporting Persons is C/O Imprimis Pharmaceuticals, Inc., 12264 El Camino Real, Suite 350, San Diego, California 92130.
(d) During the past five years, no Reporting Person has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) During the past five years, no Reporting Person has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Dr. Kammer is a citizen of the United States of America. The Kammer Trust was established under the laws of the State of Colorado.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 of the Statement is amended and restated in its entirety to read in full as follows:
Open Market Transactions and Private Transactions with the Issuer
In September 2007, Dr. Kammer acquired 1,250 shares of Common Stock and a warrant to purchase 313 shares of Common Stock (the “2007 Warrant”) in a private transaction with the Issuer, which were acquired for an aggregate purchase amount of $100,000, using Dr. Kammer’s personal funds. In September 2012, the 2007 Warrant expired unexercised. In May 2008, Dr. Kammer acquired 1,500 shares of Common Stock in an open market transaction, for an aggregate purchase amount of $85,420, using Dr. Kammer’s personal funds. In June 2009, Dr. Kammer acquired 1,125 shares of Common Stock in an open market transaction, for an aggregate purchase amount of $39,348, using Dr. Kammer’s personal funds. In June 2011, Dr. Kammer acquired 766 shares of Common Stock in an open market transaction, for an aggregate purchase amount of $4,588, using Dr. Kammer’s personal funds. The shares of Common Stock described in this paragraph were subsequently transferred by Dr. Kammer to the Kammer Trust.
| 4 |
DermaStar Distribution Transaction
On July 12, 2012, DermaStar distributed to its members, including Dr. Kammer, and to certain additional individuals all shares of Common Stock held of record by DermaStar as of that date (the “Distribution Transaction”), which consisted of the following: (a) 1,499,700 shares of Common Stock issued upon DermaStar’s conversion of ten shares of Series A Preferred Stock of the Issuer pursuant to the terms of a Conversion Agreement dated June 29, 2012 between DermaStar and the Issuer; (b) an additional 1,648,009 shares of Common Stock held by DermaStar; and (c) a warrant issued to DermaStar on April 25, 2012 to purchase 48,262 shares of Common Stock (the “DermaStar Warrant”). Pursuant to the Distribution Transaction, effective July 12, 2012, Dr. Kammer, in his capacity as a member of DermaStar, received from DermaStar (i) 886,850 shares of Common Stock, and (ii) a warrant to purchase 15,282 shares of Common Stock (the “Kammer Warrant”), representing the portion of the DermaStar Warrant distributed to Dr. Kammer. The shares of Common Stock and the Kammer Warrant distributed to Dr. Kammer in the Distribution Transaction were subsequently transferred by Dr. Kammer to the Kammer Trust.
Advisory Agreement Compensation
Effective on April 1, 2012, the Issuer and Dr. Kammer entered into an advisory agreement (the “Advisory Agreement”), pursuant to which Dr. Kammer agreed to provide certain services for the Issuer in addition to his services as a director of the Issuer. Under the terms of the Advisory Agreement, Dr. Kammer was compensated for his advisory services thereunder with (i) $10,000 per month in the form of Common Stock based on $4.50 per share being allocated to each dollar of payment due to Dr. Kammer, and (ii) an option under the Issuer’s 2007 Stock Incentive and Awards Plan (the “Plan”) to purchase up to 60,000 shares of Common Stock (the “Advisory Agreement Option”), which had an exercise price of $4.50 and a five-year term and vested over a two-year period. In September 2013, Dr. Kammer and the Issuer terminated the Advisory Agreement by mutual agreement. As a result, Dr. Kammer’s aggregate compensation under the Advisory Agreement totaled 40,000 shares of Common Stock issued to Dr. Kammer between April 2012 and September 2013 and the Advisory Agreement Option, of which 46,875 shares had vested as of the date of termination and the remaining 13,125 shares remained unvested and were forfeited. All equity compensation under the Advisory Agreement, including the shares of Common Stock issued upon exercise of the Advisory Agreement Option as described below, was subsequently transferred by Dr. Kammer to the Kammer Trust.
On September 30, 2014, Dr. Kammer fully exercised the Advisory Agreement Option to acquire all vested shares of Common Stock subject to the option, totaling 46,875 shares. The Advisory Agreement Option was exercised on a net-exercise basis, pursuant to which certain of the shares of Common Stock issuable upon exercise of the option were withheld by the Issuer as payment of the exercise price, based on the closing price per share of the Common Stock on the date of exercise. As a result, the Issuer withheld 28,428 shares of Common Stock as payment of the aggregate exercise price and issued to Dr. Kammer the remaining 18,447 shares of Common Stock.
Additional Compensation for Advisory Services
On July 18, 2012, the Issuer granted to Dr. Kammer RSUs for up to 40,000 shares of Common Stock outside of the Plan pursuant to a Stand-alone Restricted Stock Unit Agreement as compensation for Dr. Kammer’s services as a consultant and advisor to the Issuer. The RSUs are subject to certain performance-based vesting criteria, such that all 40,000 shares of Common Stock subject to the RSUs vest when the Issuer meets the primary endpoints of its now terminated and abandoned Phase III clinical studies for its former drug candidate, Impracor. None of the shares of Common Stock subject to the RSUs have vested, and the RSU Agreement was terminated by mutual agreement on September 30, 2013.
Director Compensation
On April 1, 2012, the Issuer appointed Dr. Kammer as Chairman of the Board and granted to each member of its Board of Directors, including Dr. Kammer, an option under the Plan to purchase up to 25,000 shares of Common Stock as compensation for their services as directors on the Issuer’s Board or Directors (the “Director Option”). The Director Option had an exercise price of $0.90 and a five-year term and vested quarterly over a one-year period. On September 30, 2014, Dr. Kammer fully exercised the Director Option to acquire all 25,000 shares of Common Stock subject to the option. The Director Option was exercised on a net-exercise basis, pursuant to which certain of the shares of Common Stock issuable upon exercise of the option were withheld by the Issuer as payment of the exercise price, based on the closing price per share of the Common Stock on the date of exercise. As a result, the Issuer withheld 15,162 shares of Common Stock as payment of the aggregate exercise price and issued to Dr. Kammer the remaining 9,838 shares of Common Stock. The shares of Common Stock issued upon exercise of Dr. Kammer’s Director Option were subsequently transferred by Dr. Kammer to the Kammer Trust.
| 5 |
Additionally, between June 2013 and May 2015, the Issuer granted to each non-employee member of its Board of Directors, including Dr. Kammer, three awards of RSUs under the Plan as compensation for their services as directors on the Issuer’s Board of Directors (the “Director RSUs”). The Director RSUs granted to Dr. Kammer collectively represent the contingent right to receive up to an aggregate of 19,769 shares of Common Stock. Each award of Director RSUs vests quarterly in equal installments over a one-year period following the date of grant of the applicable award, but the shares of Common Stock subject to the Director RSUs will not be issued and delivered to the applicable director until the director resigns from his position or otherwise terminates his service as a director. Of the 19,769 shares of Common Stock subject to Dr. Kammer’s Director RSUs, 18,198 are vested and issuable to Dr. Kammer within 60 days after December 10, 2015.
Item 4. Purpose of Transaction
Item 4 of the Statement is amended and restated in its entirety to read in full as follows:
The information set forth under Item 3 of this Statement is incorporated into this Item 4 by reference.
On December 10, 2015, Dr. Kammer and the Kammer Trust entered into a Rule 10b5-1 Sales Plan (the “Sales Plan”) with MDB Capital, LLC (“MDB”). The Sales Plan was established as part of Dr. Kammer’s investment strategies for liquidity over time. The Sales Plan was adopted during an “open window” in accordance with Rule 10b5-1 under the Act and as permitted by the Issuer’s insider trading policy. Pursuant to the Sales Plan, beginning on March 1, 2016 and ending on February 28, 2017, MDB is authorized to sell, on behalf and as the agent of Dr. Kammer and the Kammer Trust, up to 10,000 shares of Common Stock per month and all sales of Common Stock are to be made at the offer or between the market. All sales of Common Stock under the Sales Plan are to be made in accordance with the terms, conditions and restrictions of the Sales Plan, which does not permit Dr. Kammer to exercise any control, influence or authority over how, when or whether to effect sales of Common Stock pursuant to the Sales Plan.
The Reporting Persons hold the shares of Common Stock and rights to acquire shares of Common Stock as reported in this Statement for general investment purposes. The Reporting Persons may, from time to time, acquire additional shares of Common Stock or other securities of the Issuer, in Dr. Kammer’s capacity as a director of the Issuer or otherwise, or engage in discussions with the Issuer concerning investments in the Issuer. The Reporting Persons intend to review their ownership of Common Stock on a continuing basis and, depending upon the price and availability of shares of Common Stock, subsequent developments affecting the Issuer, the Issuer’s business and prospects, other investment and business opportunities available to the Reporting Persons, general stock market and economic conditions, tax considerations and other factors considered relevant, and subject to the sales of Common Stock to be made pursuant to the pre-established terms of the Sales Plan, the Reporting Persons may decide at any time to increase or to decrease the size of his holdings of the Issuer’s securities.
Item 5. Interest in Securities of the Issuer
Item 5 of the Statement is hereby amended and restated in its entirety to read as follows:
(a) The Kammer Trust is the beneficial owner and holder of record of 975,058 shares of Common Stock. Such shares of Common Stock represent 10.1% of the Common Stock of the Issuer, calculated based on 9,681,646 shares of Common Stock outstanding as of November 11, 2015, as reported in the Quarterly Report on Form 10-Q filed by the Issuer on November 12, 2015.
Dr. Kammer is the beneficial owner of 993,256 shares of Common Stock, consisting of the following: (a) 975,058 shares of Common Stock held of record by the Kammer Trust, of which Dr. Kammer is the sole trustee, and (b) 18,198 shares of Common Stock that are subject to the Director RSUs granted to Dr. Kammer and issuable within 60 days after December 10, 2015. Such shares of Common Stock represent 10.2% of the Common Stock of the Issuer, calculated based on 9,699,844 shares of Common Stock, as follows: (a) 9,681,646 shares of Common Stock outstanding as of November 11, 2015, as reported in the Quarterly Report on Form 10-Q filed by the Issuer on November 12, 2015; and (b) 18,198 shares of Common Stock that are subject to the Director RSUs granted to Dr. Kammer and issuable within 60 days after December 10, 2015.
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(b) In his capacity as the sole trustee of the Kammer Trust, Dr. Kammer has sole power to vote or direct the vote and dispose or direct the disposition of all shares of Common Stock held of record by the Kammer Trust. Dr. Kammer also has sole power to vote or direct the vote and dispose or direct the disposition of all shares of Common Stock, or rights to acquire shares of Common Stock, that he holds of record in his individual capacity. As a result, Dr. Kammer has the sole power to vote or direct the vote and dispose or direct the disposition of 993,256 shares of Common Stock, including the right to acquire 18,198 shares of Common Stock within 60 days after December 10, 2015. Dr. Kammer has shared power to vote or direct the vote or dispose or direct the disposition of zero shares of Common Stock.
(c) Except as otherwise set forth in this Statement, no Reporting Person has effected any transactions in the Common Stock during the past 60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Item 6 of the Statement is hereby amended and restated in its entirety to read as follows:
The information set forth under Items 3 and 4 of this Statement is incorporated into this Item 6 by reference.
Item 7. Material to Be Filed as Exhibits
| Exhibit 1: | Form of Warrant, issued to Robert J. Kammer by Imprimis Pharmaceuticals, Inc. on September 17, 2007 (incorporated herein by reference to Exhibit 10.2 to the Current Report on Form 8-K of Imprimis Pharmaceuticals, Inc. filed with the Commission on September 21, 2007) | |
| Exhibit 2: | Form of Warrant, issued to Robert J. Kammer by Imprimis Pharmaceuticals, Inc. on July 12, 2012 (incorporated herein by reference to Exhibit 10.2 to the Current Report on Form 8-K of Imprimis Pharmaceuticals, Inc. filed with the Commission on April 27, 2012) | |
| Exhibit 3: | Advisory Agreement, effective as of April 1, 2012, by and between Imprimis Pharmaceuticals, Inc. and Robert J. Kammer (incorporated herein by reference to Exhibit 10.4 to the Current Report on Form 8-K of Imprimis Pharmaceuticals, Inc. filed with the Commission on April 27, 2012) | |
| Exhibit 4: | Stand-alone Restricted Stock Unit Agreement, dated as of July 18, 2012, by and between Imprimis Pharmaceuticals, Inc. and Robert Kammer (incorporated herein by reference to Exhibit 10.41 to the Registration Statement on Form S-1 of Imprimis Pharmaceuticals, Inc. filed with the Commission on July 25, 2012) | |
| Exhibit 5: | Form of Non-Qualified Stock Option Agreement (incorporated herein by reference to Exhibit 10.13 to the Current Report on Form 8-K of Imprimis Pharmaceuticals, Inc. filed with the Commission on September 21, 2007) | |
| Exhibit 6: | Form of Restricted Stock Unit Agreement (incorporated herein by reference to Exhibit 10.4 to the Quarterly Report on Form 10-Q of Imprimis Pharmaceuticals, Inc. filed with the Commission on May 8, 2013) | |
| Exhibit 7: | Rule 10b5-1 Sales Plan, dated as of December 10, 2015, by and between Robert J. Kammer and the Robert J. Kammer Living Trust as the Seller and MDB Capital Group LLC (filed herewith) | |
| Exhibit 8: | Power of Attorney — Robert J. Kammer and The Robert J. Kammer Living Trust (filed herewith) | |
| Exhibit 9: | Joint Filing Agreement pursuant to Rule 13d-1(k)(1) (filed herewith) |
| 7 |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| Dated: December 28, 2015 | ||
| THE ROBERT J. KAMMER LIVING TRUST | ||
| By: | * | |
| Name: | Robert J. Kammer | |
| Its: | Trustee | |
| ROBERT J. KAMMER | ||
| By: | * | |
| Name: | Robert J. Kammer | |
| *By: | /s/ Andrew R. Boll | |
| Andrew R. Boll, | ||
| as Attorney-in Fact | ||
| 8 |
EXHIBIT 7
Rule l0b5-1 Sales Plan
This Rule 10b5-1 Sales Plan (“Plan”) is adopted by Robert J. Kammer and Robert J. Kammer Living Trust (“Seller”) on December 10, 2015, in order to establish a systematic program by which MDB Capital Group LLC (“MDB”) will use its reasonable best efforts to sell on Seller’s behalf the shares of common stock (“Stock”) of Imprimis Pharmaceuticals, Inc. (“Issuer”).
A. Sales Program
1. Seller’s sales program relates to the sale of shares of Stock already owned by Seller, including Stock that Seller has the right to acquire through the exercise of Stock Options issued by the Issuer, as specified in Exhibit A.
2. Seller is giving MDB authority to act as Seller’s agent under this Plan. It is Seller’s intent that this Plan comply with the requirements of Rule 10b5-1(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and this Plan shall be interpreted to comply with such requirements. Seller has consulted with Seller’s own advisors as to the legal, tax, business, financial and related aspects of, and has not relied upon MDB or any person affiliated with MDB in connection with, Seller’s adoption and implementation of this Plan. In this regard, Seller acknowledges that MDB has not provided any investment advice to Seller in connection with the transactions to be effected under this Plan.
3. Seller agrees to pay MDB the commission per share of Stock indicated on Exhibit A. MDB will deduct its commission and applicable transaction fees from the proceeds of any sale of Stock under this Plan.
4. The sale prices and shares of Stock to be sold will be adjusted in the event Seller notifies MDB on a timely basis of a Stock split or other recapitalization affecting the Stock (“Recapitalization”).
5. Seller acknowledges that it may not be possible to sell Stock during the term of this Plan due to: (a) a legal, contractual or regulatory restriction applicable to Seller or MDB, (b) any other event as a result of which the Issuer has notified MDB that trading in the Stock must be suspended, (c) a market disruption (including without limitation a halt or suspension of trading in the Stock imposed by a court, governmental agency or self-regulatory organization) or (d) rules governing order execution priority on the NASDAQ Stock Market or the New York Stock Exchange (whichever is applicable). If any of these events ceases to be applicable during the term of this Plan (“Term”) or, in the case of a trading suspension imposed by the Issuer, if notified in writing by the Issuer that such suspension has terminated, MDB will resume its sales activity to the extent it is reasonably able to do so and still be able to provide best execution. For the avoidance of doubt, this paragraph is intended to allow, but not obligate, the Issuer to provide any notice to MDB pursuant to this paragraph.
6. Seller agrees to notify MDB’s compliance office by telephone at the number set forth in Exhibit B below as soon as practicable if Seller becomes aware of the occurrence of an event that would prohibit any sale of shares of Stock under this Plan, including but not limited to any legal, contractual or regulatory restriction (other than any such restriction relating to Seller’s possession or alleged possession of material non-public information about the Issuer or its securities, but including a restriction based on Seller’s possession or alleged possession of material non-public information in connection with a tender offer for the Issuer’s securities (transactions on the basis of which Rule 14e-3 of the Exchange Act could be violated), or any offering of the Issuer’s securities that requires Seller to enter into a lock-up or similar agreement. Such notice will indicate the anticipated duration of the restriction, if known, but shall not include any other information about the nature of the restriction or its applicability to Seller and will not in any way communicate any material nonpublic information about the Issuer or its securities to MDB. Upon receipt of any such notice from Seller or the Issuer and provided that Seller has no control over the beginning date or the ending date of the applicable restriction, MDB shall suspend sales of Stock under this Plan until two (2) business days after the ending date of the applicable restriction.
B. Issuer Representations
As a condition precedent to MDB’s acceptance of this Plan, the Issuer must execute the Issuer Representation in the form attached to this Plan as Exhibit B.
C. Modification and Termination
1. This Plan may not be modified unless: (a) Seller provides MDB with five (5) business days prior written notice, (b) Seller and MDB agree to such modification in writing and (c) the Issuer approves such modification in writing. Seller agrees that this Plan may be amended by Seller only during an open trading window under the Issuer’s insider trading policy, and Seller further agrees that, and any such modification will contain the Seller’s representation that, as of the effective date of the modification, he or she knows of no material non-public information regarding the Issuer or any of its securities (including the Stock).
2. This Plan will be deemed an effective contract and binding agreement with MDB only upon written approval by its compliance office. No Sale Period (as defined in Exhibit A) may commence until two (2) business days after Seller adopts this Plan, but in no event will sales commence until MDB signs this Plan. This Plan will terminate upon the occurrence of the first of the following dates or events: (a) if the Seller is a natural person, the date upon which MDB receives notice of Seller’s death, (b) the date specified in Exhibit A on which all sales under this Plan will cease, (c) any sale effected pursuant to this Plan that violates (or in the opinion of counsel to the Issuer or MDB is likely to violate) Rule 144 or Rule 145 under the Securities Act of 1933 (“1933 Act”), or any other applicable Federal or State law or regulation, (d) Seller fails to comply with its obligations under this Plan, (e) Issuer and/or the Seller enter into a contract that prevents or materially restricts sales of Stock by Seller under this Plan, (f) two (2) business days after the date on which MDB receives written notice that Seller has terminated this Plan (which may be for any reason), (g) two (2) business days after MDB notifies the Seller in writing that MDB has terminated this Plan (which may be for any reason), (h) two (2) business days after the date on which MDB receives notice that Seller has filed a petition for bankruptcy or the adjustment of Seller’s debts, or a petition for bankruptcy has been filed against Seller and has not been dismissed within thirty (30) calendar days of its filing, (i) two (2) business days after the date on which Seller or the Issuer notifies MDB that the Issuer or any other person has publicly announced a tender or exchange offer with respect to the Stock, (j) two (2) business days after the date on which Seller or the Issuer notifies MDB that the Issuer has made a public announcement of a merger, acquisition, reorganization, recapitalization or comparable transaction affecting the securities of the Issuer as a result of which the Stock will be exchanged or converted into shares of another company and (k) two (2) business days after the date on which MDB receives written notice that the Issuer has withdrawn its Issuer Representation, (l) promptly after the reasonable determination by Seller or the Issuer and notice to MDB that this Plan does not comply with Rule 10b5-1 under the Exchange Act, (m) promptly after the date MDB is notified by the Issuer that this Plan is no longer consistent with the Issuer’s insider trading policy, and (n) the date that the aggregate number of shares of Stock to be sold pursuant to this Plan have been sold.
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D. Representations and Warranties
Seller makes the following representations. The representation in Subsection (a) is made on the date this Plan is adopted (the “Adoption Date”). The remaining representations are made on the Adoption Date and are deemed to be re-stated during the Term.
(a) He/she is not aware on the date he/she adopts this Plan of any material nonpublic information with respect to the Issuer or any of its securities (including the Stock), (b) he/she is not subject to any legal, regulatory, or contractual restriction or undertaking that would prevent MDB from conducting sales throughout the Term in accordance with Exhibit A, (c) he/she is entering into this Plan in good faith for the purpose of establishing a trading plan that complies with the affirmative defense conditions of clause (c) of Rule 10b5-1 under the Exchange Act (“Rule 10b5-1”), and not as part of a plan or scheme to evade the prohibitions of, Rule l0b5-1, (d) [check one] he/she is [X] is not [ ] an affiliate of the Issuer or holder of “restricted shares” for purposes of Rule 144, (e) the Stock is not subject to any liens, security interests or other impediments to transfer (except for limitations imposed by Rules 144 or 145 under the 1933 Act), nor is there any litigation, arbitration or other proceeding pending, or to Seller’s knowledge threatened, that would prevent or interfere with sales of Stock under this Plan, (f) he/she has not entered into or altered a corresponding or hedging transaction or put option equivalent with respect to the Stock, and agrees not to enter into or alter any such transaction while this Plan is in effect, (g) he/she will not (i) enter into a binding contract with respect to the purchase or sale of Stock with another broker, dealer or financial institution (each, a “Financial Institution”), (ii) instruct another Financial Institution to purchase or sell Stock or (iii) adopt a plan for trading with respect to Stock other than this Plan, and (h) he/she does not have authority, influence or control over how, when or whether to effect any sales of Stock effected by MDB pursuant to this Plan, and will not attempt to exercise any authority, influence or control over such sales, nor will Seller communicate, directly or indirectly, any information relating to the Stock or the Issuer to any employee of MDB or its affiliates who is involved, directly or indirectly, in executing this Plan at any time while this Plan is in effect.
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(b) Rule 144
If the Seller is an “affiliate” of the Issuer, or holder of “restricted shares” that are not otherwise registered shares under the 1933 Act, then MDB shall make all sales under this Plan in accordance with Rule 144 under the 1933 Act (“Rule 144”). MDB represents that it is experienced in selling securities in compliance with Rule 144. Seller agrees not to take, and will cause any person or entity with whom seller would be required to aggregate sales of Stock under Rule 144 not to take, any action that would cause any such sale not to comply with Rule 144, although Seller shall not be responsible for the obligations of MDB set forth in this section or any unmet requirements of Rule 144 due to actions taken or not taken by MDB in connection with its obligations. MDB will be responsible for filing each required Form 144. Seller acknowledges and agrees that MDB will make only one Form 144 filing at the beginning of each three-month period commencing prior to the first sale of Stock made under this Plan. Seller will promptly advise MDB of any sale of Stock that is not covered by this Plan. Seller may sell Stock outside of this Plan only if and to the extent that no such sale affects the amount of Stock that may be sold under this Plan in compliance with the volume limitations of Rule 144. Seller acknowledges and agrees that: (a) sales under this Plan shall not be in any way affected by any sales outside of this Plan, and (b) for purposes of this sentence, the term “Seller” shall mean and include the Seller and any other person or entity whose sales of Stock would be aggregated with those of the Seller for purposes of compliance with the volume limitations of Rule l44. Seller acknowledges and agrees that he will provide MDB with a signed and completed Form 144 no later than five business days prior to the commencement of, and five business days prior to the end of each three months during, any Sale Period set forth on Exhibit A.
E. Exchange Act Filings
Seller acknowledges and agrees that it is responsible for making, all filings required under Sections 13(d), 13(g) and 16 of the Exchange Act (e.g., Schedules 13D or l3G, and Forms 4 and 5) with respect to sales under this Plan. MDB will not be responsible to make or review any of these filings.
F. Indemnification and Limitation of Liability; No Advice
1. Seller agrees to indemnify and hold harmless MDB (and its directors, officers, employees and affiliates) from and against all claims, liabilities, losses, damages and expenses (including, without limitation, reasonable attorneys’ fees and costs as well as any other expenses reasonably incurred in connection with defending or investigating any such claim, liability, loss, damage or expense) (collectively, “Loss”) arising out of or attributable to: (a) MDB’s performance of its obligations under this Plan, (b) any material breach by Seller of this Plan (including Seller’s representations and warranties), and (c) any violation by Seller of applicable laws or regulations except, in each instance, to the extent caused by MDB’s breach of this Plan, gross negligence or willful misconduct. This indemnification will survive the termination of this Plan.
2. MDB agrees to indemnify and hold harmless Seller from and against all Losses arising out of or attributable to MDB’s breach of this Plan or its gross negligence or willful misconduct in connection with this Plan. This indemnification shall survive termination of this Plan.
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3. Regardless of any other term or condition of this Plan, MDB will not be liable to Seller for: (a) special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages of any kind, including but not limited to lost profits, lost savings, loss of use of facility or equipment, regardless of whether arising from breach of contract, warranty, tort, strict liability or otherwise, and even if advised of’ the possibility of such losses or damages or if such losses or damages could have been reasonably foreseen, or (b) any failure to perform or for any delay in performance that results from a cause or circumstance that is beyond its reasonable control, including but not limited to failure of electronic or mechanical equipment, strikes, failure of common carrier or utility systems, severe weather, market disruptions or other causes commonly known as “acts of God.” In addition, MDB will not be liable to Seller in the event sales of Stock under this Plan violate the Issuer’s insider trading policies.
4. Seller acknowledges that MDB has not provided Seller with any tax, accounting or legal advice with respect to this Plan, including whether Seller would be entitled to any of the affirmative defenses under Rule 10b5-1.
5. Seller acknowledges and agrees that in performing Seller’s obligations under this Plan, neither MDB nor any of its affiliates nor any of their respective officers, employees or other representatives is acting as a fiduciary (within the meaning of Section 3(21) of the Employee Retirement Income Security Act of 1974, as amended, or Section 2510.3-21 of the Regulations promulgated by the United States Department of Labor, or otherwise) with respect to Seller or Seller’s assets.
G. Governing Law
This Plan will be governed by, and construed in accordance with, the laws of the State of California, without regard to such State’s conflict of laws rules.
H. Entire Agreement
This Plan (including all Exhibits) together with the MDB Client Agreement (the “Client Agreement”), which is hereby incorporated by reference, constitutes the entire agreement between the parties with respect to this Plan and supersedes any previous or contemporaneous agreements or understandings with respect to this Plan, whether written or oral. In the event that the terms and conditions of this Plan conflict with the terms and conditions of the Client Agreement or any other agreement between Seller and MDB, the terms and conditions of this Plan will govern with respect to implementation of this Plan.
I. Assignment
This Plan and each party’s rights and obligations under this Plan may not be assigned or delegated without the written permission of the other party and will be for the benefit of each party’s successors and permitted assigns, whether by merger, consolidation or otherwise.
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J. Method of Communication
MDB shall provide notification of all sales of Stock under this Plan to Seller and to the Issuer by email at the below addresses no later than 6 p.m. (ET) on the date of execution of each such sale, with a final report no later than 12 p.m. (ET) on the following business day. Such report shall indicate the number of shares of Stock sold, the exact prices at which Stock was sold and the date of each such sale. If shares of Stock are sold at different prices on the same day, then information shall be given with respect to the exact number of shares of Stock sold at each different per share price. Seller and the Issuer agree to notify MDB in writing of any changes to the email addresses provided below in accordance with this Section J.
Seller’s Email: kammerrobert@gmail.com
Issuer’s Email: aboll@imprimispharma.com; bbingham@imprimispharma.com
Except as otherwise specifically provided in this Plan, any communications required or permitted hereunder may be in writing or made orally, provided that any communications made orally must be confirmed in writing within one business day of such communication. Such written communications shall be directed to the parties specified in Exhibit C.
K. Securities Contract
Seller and MDB acknowledge and agree that this Plan is a “securities contract,” as such term is defined in Section 741(7) of Title 11 of the United States Code (the “Bankruptcy Code”), entitled to all of the protections given such contracts under the Bankruptcy Code.
L. Counterparts
This Plan may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures on all counterparts were upon the same instrument.
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M. Severability of Provisions
If any provision of this Plan is or becomes inconsistent with any applicable present or future law, rule or regulation, that provision will be deemed modified or, if necessary, rescinded in order to comply with the relevant law, rule or regulation. All other provisions of this Plan will continue and remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have signed this Plan as of the date first written above.
| SELLER | ||
| Signature: | /s/ Robert J. Kammer | |
| Print Name: | Robert J. Kammer | |
| Title: | Trustee, Robert J. Kammer Living Trust | |
| MDB Capital Group LLC | ||
| By: | /s/ Gary Schuman | |
| Print Name: | Gary Schuman | |
| Title: | CFO/CCO | |
POWER OF ATTORNEY
Know all by these presents, that each of the undersigned hereby constitutes and appoints each of Mark L. Baum and Andrew R. Boll, signing singly, such undersigned’s true and lawful attorney-in-fact to:
| (1) | execute for and on behalf of such undersigned statements on Schedule 13D or Schedule 13G, Forms ID, 3,4 and 5, and any exhibits to any of the foregoing in accordance with Section 13 or Section 16 of the Securities Exchange Act of 1934, as amended, and the rules thereunder; | |
| (2) | do and perform any and all acts for and on behalf of such undersigned which may be necessary or desirable to complete and execute any such statement on Schedule 13D or Schedule 13G, Form ID, 3, 4 or 5, or any exhibit to any of the foregoing, including any electronic filing thereof, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and | |
| (3) | take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, such undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of such undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-facts’ discretion. |
Each of the undersigned hereby grants to each such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever necessary or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as such undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact’s substitute or substitutes, shall lawfully do or cause to be done by virtue of this Power of Attorney and the rights and powers herein granted. Each of the undersigned acknowledges that the foregoing attorneys-in-fact, in serving in such capacity at the request of such undersigned, are not assuming any of such undersigned’s responsibilities to comply with Section 13 or Section 16 of the Securities Exchange Act of 1934, as amended, and the rules thereunder.
This Power of Attorney shall remain in full force and effect until each of the undersigned is no longer required to file statements on Schedule 13D or Schedule 13G, or Form ID, 3, 4 or 5, with respect to such undersigned’s holdings of and transactions in securities issued by Imprimis Pharmaceuticals, Inc., a Delaware corporation, unless earlier revoked by such undersigned in a signed writing delivered to the foregoing attorneys-in-fact.
IN WITNESS WHEREOF, each of the undersigned has caused this Power of Attorney to be executed as of December 9, 2015.
| Robert J. Kammer Living Trust | |||
| By: | /s/ Robert J. Kammer | /s/ Robert J. Kammer | |
| Name: | Robert J. Kammer | Robert J. Kammer | |
| Title: | Trustee | ||
Exhibit 9
JOINT FILING AGREEMENT PURSUANT TO RULE 13d-1(k)(1)
The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D shall be filed on behalf of each of the undersigned without the necessity of filing additional joint filing statements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him, her or it contained herein, but shall not be responsible for the completeness and accuracy of the information concerning the other entities or persons, except to the extent that he, she or it knows or has reason to believe that such information is inaccurate.
| Dated: December 22, 2015 | ||
| THE ROBERT J. KAMMER LIVING TRUST | ||
| By: | * | |
| Name: | Robert J. Kammer | |
| Its: | Trustee | |
| ROBERT J. KAMMER | ||
| By: | * | |
| Name: | Robert J. Kammer | |
| *By: | /s/ Andrew R. Boll | |
| Andrew R. Boll, | ||
| as Attorney-in Fact | ||