|
|
Item 10.
|
Directors, Executive Officers and Corporate Governance
|
Directors of the Company
The Company’s bylaws authorize
the Board of Directors (or the “Board”) to fix the number of directors and provide that the directors shall be divided
into three classes, with the classes of directors serving for staggered, three-year terms.
Pursuant to the Certificate of Designations,
so long as at least 85% of the Series A Preferred Stock remains outstanding, the holders of a majority of the then outstanding
shares of Series A Preferred Stock (the “Majority Holders”) have the right, voting separately as a class, to elect
two directors. The Majority Holders have, as of the date hereof, elected two directors, Martin M. Hale, Jr. and Michael Kelly.
Messrs. Rudolph and Miller were elected by the Board to fill vacancies created by the resignation of other directors. Mr. Brooks
was appointed to the Board in February 2019. The Company currently has five directors.
The names of the directors are set forth
below:
|
Name
|
Position
|
Age
|
Director
Since
|
|
Martin M. Hale, Jr.
|
Director
|
49
|
2013
|
|
Michael P. Kelly
|
Director
|
73
|
2014
|
|
William D. Miller
|
Director
|
60
|
2016
|
|
Barry A. Rudolph
|
Director
|
67
|
2016
|
|
Todd Brooks
|
Director
|
56
|
2019
|
Martin M. Hale, Jr. has served
as the founder and CEO of Hale Capital Partners, LP, an investment firm that applies a private equity skill set and focus to investing
in small and micro-cap public companies, since 2007. Mr. Hale has 20 years of experience in venture capital and private equity
as a board member and an investor helping public and private companies grow. Mr. Hale currently serves as a director of Lantronix
Corporation, Culmen International and Patch Media. Mr. Hale has also served as a director of publicly-traded technology companies
including Adept Technology, Inc. (acquired by Omron Global), Analex Corporation (acquired by QinetiQ North America), Paradigm Holdings
(acquired by CACI International, Inc.), Telanetix, Inc. (acquired by Intermedia), and Top Image Systems, Ltd. Before joining Hale
Capital Partners, Mr. Hale was a Managing Director and member of the founding team of Pequot Ventures, an associate at Geocapital
Partners, and an analyst with Broadview International. Mr. Hale received a B.A. from Yale University. Mr. Hale has been a director
of the Company since September 2013.
Mr. Hale was elected as a director by
the Majority Holders of the outstanding Series A Preferred Stock. Mr. Hale’s Board qualifications include extensive experience
helping small public companies grow to become larger and more successful. Such experience is helpful in expanding the Company’s
leadership and strategic growth initiatives.
Michael P. Kelly served as a
director at Adept Technology, Inc. from April 1997 to October 22, 2015 and also served as Chairman of the Board of Adept from
November 2008 to October 22, 2015. Mr. Kelly has also served as Chief Executive Officer of merchant bank, Kinsale Associates,
Inc., since October 2005. From July 2005 to October 2005, he was the Chief Executive Officer of Cape Semiconductor Inc., a fabless
semiconductor company. From 1994 to 2005, Mr. Kelly held the positions of Vice-Chairman and Senior Managing Director of Broadview
International, LLC, an international merger and acquisitions advisory firm and a division of Jefferies Group, Inc. Additionally,
he has served as a director of Epicor Software Corporation, a provider of enterprise business software solutions, since September
2005. Mr. Kelly received a B.A. in Accounting from Western Illinois University, a M.B.A. from St. Louis University, and is also
a Certified Public Accountant. Mr. Kelly has been a director of the Company since October 2014 and our Chairman of the Board since
March 2018.
Mr. Kelly was selected as a director
by the Majority Holders of the outstanding Series A Preferred Stock. Mr. Kelly’s qualifications to serve on the Board include
his experience as an investment banker specializing in technology industries, which provides the Board and the Company with unique
and relevant expertise in areas including capital markets, mergers and acquisitions and financing.
William D. Miller has served as
Chairman and Chief Executive Officer of Axellio Inc., an edge computing systems company, since November 2018 and has been General
Partner of FirstMile Ventures (previously Miller Investment Management), a venture capital fund manager making investments in early
stage companies, since 2010. He previously served as CEO of X-IO Technologies, Inc., an enterprise storage company, from February
2015 to October 2018. Mr. Miller is a director of the following private entities: Axellio Inc., Violin Sytems LLC, Chromatic Technologies,
Inc., New Planet Technologies, Inc., Wanamaker Corp., BurstIQ Inc., and Altia Inc. Mr. Miller was a cofounder and Chief Technology
Officer of StorageNetworks. Mr. Miller holds a B.S. in Chemistry from the University of Illinois. Mr. Miller has been a director
of the Company since December 2016 and is currently serving for a term which will expire at the Company’s 2021 Annual Meeting
of Stockholders and until a successor is elected and qualified.
The following experience, qualifications,
attributes and/or skills led the Board to conclude that Mr. Miller should serve as a director: his professional background and
experience; his current and previously held senior-executive level positions; his service on other public and private company boards;
and his extensive experience in technology, software, storage and related industries.
Barry A. Rudolph has served as
Chief Executive Officer of VelociData, Inc., a firm that specializes in high performance data transformation and process offload
in large corporations, since July 2014, and as a director since December 2012. Mr. Rudolph has also served as a director of Spectra
Logic Corporation, a computer data storage company, since December 2015. Previously, Mr. Rudolph served as a director of Dot Hill
Systems Corp., a provider of high performance storage arrays, from February 2012 until its sale to Seagate Technology in October
2015. Mr. Rudolph began his career in January 1978 and held numerous senior level positions with IBM until his retirement in November
2010 in a variety of functional areas, including operations, engineering, product development, test and assurance, program management,
field support and direct manufacturing. Most recently he was Vice President, System Networking, for IBM with responsibility for
delivering overall networking product strategy, portfolio management and profit and loss management over each of the products in
the group. Prior to this position, Mr. Rudolph was Vice President, Storage Strategy, responsible for the development and integration
of the storage strategy for IBM including market segmentation and opportunity identification. Prior to that, Mr. Rudolph was Vice
President, Stack Integration, responsible for the definition and execution of horizontal solutions and solution selling. Prior
positions Mr. Rudolph held at IBM include Vice President and Business Executive, Disk Storage and Software Systems, where he was
responsible for all aspects of disk storage and related software business within IBM. He also held an identical role with responsibility
for IBM’s tape storage business. Mr. Rudolph holds a B.S. in Engineering and a Master of Science in Electrical Engineering
from San Diego State University and an MBA from Santa Clara University. Mr. Rudolph has been a director of the Company since December
2016 and is currently serving for a term which will expire at the Company’s next Annual Meeting of Stockholders and until
a successor is elected and qualified.
The following experience, qualifications,
attributes and/or skills led the Board to conclude that Mr. Rudolph should serve as a director: his professional background and
experience; his current and previously held senior-executive level positions; his service on other public and private company boards;
and his extensive experience in technology, software, storage and related industries.
Todd Brooks is the Company’s
Chief Executive Officer. Prior to joining the Company, Mr. Brooks was the Chief Operating Officer at Aurea Software, and Chief
Executive Officer of Update Software, a publicly traded company in Europe. Previously, Mr. Brooks was the Chief Operating
Officer at Trilogy where he was responsible for the strategic and operational leadership of the firm’s Automotive, Financial
Services and Telecom, and Technology & Media business units. Earlier in his career, Mr. Brooks co-founded and managed
two technology consulting firms, including eFuel, an early innovator and leader in logistics optimization software for the automotive
industry. In addition, Mr. Brooks held leadership roles at FedEx. Mr. Brooks earned a Bachelor’s of Science degree in Aerospace
and Ocean Engineering from Virginia Tech, and currently serves on the Advisory Board at Virginia Tech’s Apex Center for Innovation
and Entrepreneurship. Mr. Brooks is currently serving for a term which will expire at the Company’s 2022 Annual Meeting of
Stockholders and until a successor is elected and qualified.
The following experience, qualifications,
attributes and/or skills led the Board to conclude that Mr. Brooks should serve as a director: his leadership role at the Company;
his performance at the Company; and his past success in the technology field.
Independence
In accordance with the Company’s
Corporate Governance Guidelines, and the NASDAQ Stock Market corporate governance listing standards (the “NASDAQ Standards”),
a majority of the Company’s directors must be independent as determined by the Board. While the Company’s common stock
is currently traded on the OTC markets, in making its independence determinations for directors, the Board looks to the NASDAQ
Standards.
Under the NASDAQ Standards, a director
is independent if: the director is neither employed, nor a family member of anyone employed, as an executive officer by the Company
or any parent or subsidiary; the director is not, and does not have a family member who is, a partner of the Company’s outside
auditor or a former partner or employee of the outside auditor who worked on the Company’s audit during the past three years;
the director has not, and does not have a family member who has, accepted more than $120,000 during the current or past three fiscal
years from the Company or any of its affiliates (other than compensation paid to a family member who is an employee of the Company
(other than an executive officer of the Company)); the director is not, nor is any family member of the director, a partner in,
or a controlling stockholder or an executive officer of, any organization to which the Company made, or from which the Company
received, payments for property or services that exceed five percent of the recipient’s consolidated gross revenues or $200,000,
whichever is more; and the director is not, and does not have any family member who is, an executive officer of another company
where any of the Company’s executive officers serve on the other company’s compensation committee.
The Board currently consists of five
directors, all of whom are independent except for Mr. Brooks.
Board Leadership Structure
Our governance documents provide the
Board with flexibility to select the appropriate leadership structure for the Company.
The Company’s policy is to have
the positions of Chairman of the Board and Chief Executive Officer split. Todd Brooks serves as Chief Executive Officer and Michael
Kelly serves as Chairman of the Board.
Several factors ensure that we have a
strong and independent Board. The Audit Committee of our Board is composed entirely of independent directors. In addition, the
Nominating and Corporate Governance Committee and our Board have assembled a Board comprised of talented and dedicated directors
with a wide range of expertise and skills. The Board regularly meets in executive session without management present.
Attendance at Annual Meetings
The Company’s policy is that, except
for unusual circumstances, all Board members should attend the Company’s annual meetings of stockholders. The Company did
not have an Annual Meeting of Stockholders in 2020. All Board members serving on the Board at the time of the 2019 Annual Meeting
of Stockholders attended the Company’s 2019 Annual Meeting of Stockholders.
Diversity
The Nominating and Corporate Governance
Committee’s evaluation of director nominees takes into account their ability to contribute to the diversity of, background,
experience and point of views represented on the Board, and the committee will review its effectiveness in balancing these considerations
when assessing the composition of the Board.
Role in Risk Management
The Board oversees that the assets of
the Company are properly safeguarded, that the appropriate financial and other controls are maintained, and that the Company’s
business is conducted wisely and in compliance with applicable laws and regulations and proper governance. Included in these responsibilities
is the Board’s oversight of the various risks facing the Company. In this regard, the Board seeks to understand and oversee
critical business risks. The Board does not view risk in isolation. Risks are considered in virtually every business decision and
as part of the Company’s business strategy. The Board recognizes that it is neither possible nor prudent to eliminate all
risk. Indeed, purposeful and appropriate risk-taking is essential for the Company to be competitive on a global basis. The Board
has implemented a risk governance framework to:
|
|
1.
|
understand critical risks in the Company’s business and strategy;
|
|
|
2.
|
allocate responsibilities for risk oversight among the full Board and its committees;
|
|
|
3.
|
evaluate the Company’s risk management processes and see they are functioning adequately;
|
|
|
4.
|
facilitate open communication between management and directors; and
|
|
|
5.
|
foster an appropriate culture of integrity and risk awareness.
|
While the Board oversees risk management,
Company management is charged with managing risk. The Company has robust internal processes and a strong internal control environment
to identify and manage risks and to communicate with the Board. These include a Code of Business Conduct, regular training of salespeople
on risks and appropriate conduct, and a comprehensive internal and external audit process. The Board and the Audit Committee monitor
and evaluate the effectiveness of the internal controls and the risk management program at least annually. Management communicates
routinely with the Board, Board committees and individual directors on the significant risks identified and how they are being
managed. Directors are free to, and indeed often do, communicate directly with senior management. The Board implements its risk
oversight function both as a whole and through committees. Much of the work is delegated to various committees, which meet regularly
and report back to the full Board. All committees play significant roles in carrying out the risk oversight function. In particular:
|
|
·
|
The Audit Committee oversees risks related to the Company’s financial statements, the financial
reporting process, accounting and legal matters, currency fluctuation and hedging, and investments. The Audit Committee oversees
the internal audit function and the Company’s ethics programs, including the Code of Business Conduct. The Audit Committee
members meet separately with the independent auditing firm.
|
|
|
·
|
The Compensation Committee evaluates the risks and rewards associated with the Company’s
compensation philosophy and programs. Management discusses with the Compensation Committee the procedures that have been put in
place to identify and mitigate potential risks in compensation.
|
Meetings
The Board met on 22 occasions during
the fiscal year ended December 31, 2020. All directors attended at least 75% of the meetings of the Board during the times they
were directors.
Committees
The Board currently has three standing
committees: the Audit Committee; the Compensation Committee; and the Nominating and Corporate Governance Committee. Each of these
committees has a charter. These charters are available on the Company’s website at:
www.falconstor.com/page/545/board-committees.
Audit Committee
The Audit Committee consists of Messrs.
Kelly (Chair), Rudolph and Miller. The Audit Committee is appointed by the Board to assist the Board in monitoring (i) the integrity
of the financial statements of the Company, (ii) the qualifications and independence of the independent registered public accounting
firm engaged to audit the Company’s consolidated financial statements, (iii) the performance of the Company’s internal
audit function and independent auditors, (iv) the integrity of management and information systems and internal controls, and (v)
the compliance by the Company with legal and regulatory requirements.
Each member of the Audit Committee is
required to be “independent” as defined in the NASDAQ Standards and in Section 301 of the Sarbanes-Oxley Act of 2002
(the “Act”) and Rule 10A-3 of the Exchange Act. The Board has determined that each member of the Audit Committee is
“independent” under these standards. In addition, the Board has determined that, as required by the NASDAQ Standards,
each member of the Audit Committee was able to read and to understand financial statements at the time of his appointment to the
Audit Committee.
The Board has further determined that
Mr. Kelly meets the definition of “audit committee financial expert,” and therefore meets comparable NASDAQ Standard
requirements, because he has an understanding of financial statements and GAAP; has the ability to assess GAAP in connection with
the accounting for estimates, accruals, and reserves; has experience in analyzing and evaluating financial statements that present
a breadth and level of complexity of accounting issues that are generally comparable to the breadth and complexity of issues that
can reasonably be expected to be raised by the Company’s financial statements; has an understanding of internal controls
and procedures for financial reporting; and has an understanding of audit committee functions. Mr. Kelly acquired these attributes
through education and experience consistent with the requirements of the Act.
The Audit Committee met four times during
the fiscal year ended December 31, 2020. All members of the Audit Committee attended at least 75% of the meetings of the committee
during the fiscal year ended December 31, 2020.
The Board has adopted, and annually reviews,
an Audit Committee Charter and Guidelines for Pre-Approval of Independent Auditor Services. As indicated above, a copy of the Company’s
Audit Committee Charter is available on the Company’s website at:
www.falconstor.com/page/545/board-committees.
Compensation Committee
The Compensation Committee currently
consists of Messrs. Hale (Chair), Kelly and Rudolph. The Compensation Committee is appointed by the Board (i) to discharge the
responsibilities of the Board relating to compensation of the Company’s executives, and (ii) to administer, and to approve
awards under, the Company’s equity-based compensation plans for employees.
At the end of each fiscal year, the Compensation
Committee meets to review the performance of executive officers and employee Board members under those programs and award bonuses
thereunder. At that time, the Compensation Committee may also adjust base salary levels for executive officers and employee Board
members. The Compensation Committee also meets when necessary to administer our stock incentive plan.
The Compensation Committee has determined
and reviewed the value and forms of compensation for our Named Executive Officers and other officers based on the committee members’
knowledge and experience, competitive proxy and market compensation information and management recommendations. The Compensation
Committee does not delegate its authority to review, determine and recommend, as applicable, the forms and values of the various
elements of compensation for executive officers and directors. The Compensation Committee does delegate to Company management the
implementation and record-keeping functions related to the various elements of compensation it has approved.
The Compensation Committee met four times
during the fiscal year ended December 31, 2020. All members of the Compensation Committee attended at least 75% of the meetings
of the committee during the fiscal year ended December 31, 2020.
Nominating and Corporate Governance Committee
The Nominating and Corporate Governance
Committee consists of Messrs. Hale (Chair), Kelly, Rudolph and Miller. The Nominating and Corporate Governance Committee is appointed
by the Board: (i) to identify individuals qualified to become Board members, (ii) to recommend to the Board director candidates
for each annual meeting of stockholders or as necessary to fill vacancies and newly created directorships and (iii) to perform
a leadership role in shaping the Company’s corporate governance policies, including developing and recommending to the Board
a set of corporate governance principles.
The Nominating and Corporate Governance
Committee met one time during the fiscal year ended December 31, 2020. All members of the Nominating and Corporate Governance Committee
attended this meeting.
Nominating Procedures and Director
Qualifications
The Nominating and Corporate Governance
Committee has adopted the following policies regarding nominations and director qualifications:
|
|
I.
|
Consideration of Nominees Recommended by Stockholders
|
The committee recognizes that qualified
candidates for nomination for director can come from many different sources, including from the Company’s stockholders. The
committee will therefore consider any nominee who meets the minimum qualifications set forth below.
To propose a nominee, a stockholder must
provide the following information:
|
|
1.
|
The stockholder’s name and, if different, the name of the holder of record of the shares.
|
|
|
2.
|
The stockholder’s address and telephone number.
|
|
|
3.
|
The name of the proposed nominee.
|
|
|
4.
|
The address and phone number of the proposed nominee.
|
|
|
5.
|
A listing of the proposed nominee’s qualifications.
|
|
|
6.
|
A statement by the stockholder revealing whether the proposed nominee has assented to the submission of her/his name by the
stockholder.
|
|
|
7.
|
A statement from the stockholder describing any business or other relationship with the nominee.
|
|
|
8.
|
A statement from the stockholder stating why the stockholder believes the nominee would be a valuable addition to the Company’s
Board.
|
The stockholder should submit the required information to:
Nominating and Corporate Governance Committee
c/o Chief Financial Officer
FalconStor Software, Inc.
701 Brazos Street
Suite 400
Austin, TX 78701
With a copy to:
Director Human Resources
FalconStor Software, Inc.
701 Brazos Street
Suite 400
Austin, TX 78701
If any information is missing, the proposed nominee will
not be considered.
|
|
II.
|
Qualifications for Candidates
|
The committee believes that the Company
and its stockholders are best served by having directors from diverse backgrounds who can bring different skills to the Company.
It is therefore not possible to create a rigid list of qualifications for director candidates. However, absent unique circumstances,
the committee expects that each candidate should have the following minimum qualifications:
|
|
·
|
Substantial experience with technology companies. This experience may be the result of employment
with a technology company or may be gained through other means, such as financial analysis of technology companies;
|
|
|
·
|
The highest level of personal and professional ethics, integrity and values;
|
|
|
·
|
An inquiring and independent mind;
|
|
|
·
|
Practical wisdom and mature judgment;
|
|
|
·
|
Expertise that is useful to the Company and complementary to the background and experience of other
Board members, so that an optimal balance of Board members can be achieved and maintained;
|
|
|
·
|
Willingness to devote the required time to carrying out the duties and responsibilities of Board
membership;
|
|
|
·
|
Commitment to serve on the Board for several years to develop knowledge about the Company’s
business;
|
|
|
·
|
Willingness to represent the best interests of all stockholders and to objectively appraise management
performance; and
|
|
|
·
|
Involvement only in activities or interests that do not conflict with the director’s responsibilities
to the Company and its stockholders.
|
At any time, the committee may be looking
for director candidates with certain qualifications or skills to replace departing directors or to complement the skills of existing
directors and to add to the value of the Board.
|
|
III.
|
Identification and Evaluation of Candidates
|
Candidates for director may come from
many different sources including, among others, recommendations from current directors, recommendations from management, third-party
search organizations, and stockholders.
In each instance, the committee will
perform a thorough examination of the candidate. An initial screening will be performed to ensure that the candidate meets the
minimum qualifications set forth above and has skills that would enhance the Board. Following the initial screening, if the candidate
is still viewed as a potential nominee, the committee will perform additional evaluations including, among other things, some or
all of the following: detailed resume review; personal interviews; interviews with employer(s); and interviews with peer(s).
All candidates will be reviewed to determine
whether they meet the independence standards of the NASDAQ Standards. Failure to meet the independence standards may be a disqualifying
factor based on the Board of Director’s composition at the time. Even if failure to meet the independence standards is not
by itself disqualifying, it will be taken into account by the committee in determining whether the candidate would make a valuable
contribution to the Board.
Contacting the Board of Directors
Stockholders and others may contact the
Company’s Board by sending a letter to:
Board of Directors
FalconStor Software, Inc.
701 Brazos Street
Suite 400
Austin, TX 78701
or by clicking on the “Contact Us” link on the
Company Corporate Governance home page at:
www.falconstor.com/page/540/board-of-directors.
Communications directed to the Board
are screened by the Company’s Finance and/or Investor Relations departments. Routine requests for Company information are
handled by the appropriate Company department. Other communications are reviewed to determine if forwarding to the Board is necessary
or appropriate. The Board receives a quarterly summary of all communications that are not forwarded to the Board’s attention.
All communications are kept on file for one year for any director who wishes to view them.
MANAGEMENT
Executive Officers of the Company
The following table contains the names,
positions and ages of the executive officers of the Company who are not directors.
|
Name
|
Position
|
Age
|
|
Brad Wolfe
|
Chief Financial Officer
|
61
|
Brad Wolfe is the Company’s
Chief Financial Officer. Prior to joining the Company, Mr. Wolfe served as Chief Financial Officer for Asure Software (NASDAQ:
ASUR) from October 2014 to July 2017. Prior to joining Asure Software, Mr. Wolfe spent most of the last 14 years with DCI Group
and their related entities and investments, a private equity and investment organization, where he served in consulting, office
and executive finance and operational roles for the firm’s subsidiary and portfolio companies to promote their growth and
profitability. Before that, he was Chief Financial Officer and Executive Vice President at AON Corporation, a Fortune 200 company.
He holds an MBA degree from Northwestern University’s Kellogg School of Business, a J.D. degree from the Kent Law School
executive program, and a B.B.A. degree in accounting and information systems from Southern Methodist University.
Code of Ethics
The Company adopted a Code of Ethics
that applies to the Company’s principal executive, financial and accounting officers. The Code of Ethics is available at:
http://www.falconstor.com/page/543/Code-of-ethics.
Section 16(a) Beneficial Ownership Reporting Compliance
Based upon a review of Forms 3, 4, and
5, and amendments thereto furnished to the Company during the fiscal year ended December 31, 2020, the Company is not aware of
any director, officer, or beneficial owner of more than 10 percent of any class of Company equities who failed to file on a timely
basis any reports required by Section 16(a) of the Exchange Act, during the fiscal year ended December 31, 2020.
|
|
Item 11.
|
Executive Compensation
|
This section discusses the compensation
for our Chief Executive Officer and our Chief Financial Officer (each a “Named Executive Officer” or “NEO”).
We had no other Named Executive Officers during the fiscal year ended December 31, 2020.
Summary Compensation Table
The following table sets forth certain
compensation paid or accrued during the Company’s past two fiscal years for the Company’s (i) President and Chief Executive
Officer, and (ii) Executive Vice President, Chief Financial Officer and Treasurer. “All Other Compensation” below consists
of certain tax benefits paid by the Company on behalf of the NEOs. All of the share and per share information presented in this
Form 10-K/A have been adjusted to reflect, unless otherwise indicated, the Company’s 1-for-100 reverse common stock split,
effected on August 8, 2019, on a retroactive basis for all periods and as of all dates presented.
|
Name
|
|
Year
|
|
Salary
|
|
Bonus
|
|
Stock Awards
|
|
All Other Compensation
|
|
Total
|
|
Todd Brooks
|
|
|
2020
|
|
|
$
|
312,500
|
|
|
$
|
85,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
397,500
|
|
|
President and Chief Executive Officer (Principal Executive Officer)
|
|
|
2019
|
|
|
$
|
350,000
|
|
|
$
|
27,905
|
|
|
$
|
367,986
|
(1)
|
|
$
|
—
|
|
|
$
|
745,891
|
|
|
Brad Wolfe
|
|
|
2020
|
|
|
$
|
233,750
|
|
|
$
|
27,500
|
|
|
$
|
7,360
|
(2)
|
|
$
|
—
|
|
|
$
|
268,610
|
|
|
Executive Vice President, Chief Financial Officer and Treasurer
|
|
|
2019
|
|
|
$
|
240,000
|
|
|
$
|
14,412
|
|
|
$
|
36,799
|
(3)
|
|
$
|
—
|
|
|
$
|
291,211
|
|
|
|
(1)
|
On May 31, 2019, the Company granted 735,973 shares of restricted stock to Mr. Brooks. The restricted stock vests as follows:
2.5% of the shares vested immediately upon grant on May 31, 2019, the grant date; 2.5% of the shares vested on the first anniversary
of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on
the third anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return
on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. The dollar
amounts in the table represent the total grant date fair value of the 735,973 shares granted in 2019 in accordance with the authoritative
guidance issued by the FASB on stock compensation.
|
|
|
(2)
|
On September 30, 2020, the Company granted 14,720 shares of restricted stock to Mr. Wolfe. The restricted stock vests as follows:
2.5% of the shares shall vest on the first anniversary of the grant date; 2.5% of the shares shall vest on the second anniversary
of the grant date; 2.5% of the shares shall vest on the third anniversary of the grant date; 2.5% of the shares shall vest on the
fourth anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on
their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. The dollar amounts
in the table represent the total grant date fair value of the 14,720 shares granted in 2020 in accordance with the authoritative
guidance issued by the FASB on stock compensation.
|
|
|
(3)
|
On May 31, 2019, the Company granted 73,597 shares of restricted stock to Mr. Wolfe. The restricted stock vests as follows:
2.5% of the shares vested immediately upon grant on May 31, 2019, the grant date; 2.5% of the shares vested on the first anniversary
of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on
the third anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return
on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. The dollar
amounts in the table represent the total grant date fair value of the 73,597 shares granted in 2019 in accordance with the authoritative
guidance issued by the FASB on stock compensation.
|
Narrative Discussion to Summary Compensation Table
Todd Brooks
In connection with Mr. Brooks’
appointment as Chief Executive Officer, the Board approved an offer letter to Mr. Brooks (the “Brooks Offer Letter”),
which was executed on August 14, 2017. The Brooks Offer Letter provides that Mr. Brooks is entitled to receive an annualized base
salary of $350,000, payable in regular installments in accordance with the Company’s general payroll practices. Mr. Brooks
will also be eligible for a cash bonus of $17,500 for any quarter that is free cash flow positive on an operating basis and additional
incentive compensation of an annual bonus of up to $200,000, subject to attainment of performance objectives to be mutually agreed
upon and established.
Mr. Brooks’ employment can be
terminated at will. If Mr. Brooks’ employment is terminated by the Company other than for cause, he is entitled to receive
severance equal to twelve months of his base salary if (i) he has been employed by the Company for at least twelve months at the
time of termination or (ii) a change of control has occurred within six months of Mr. Brooks’ employment. Except as set
forth in the preceding sentence, Mr. Brooks is entitled to receive severance equal to six months of his base salary if he has
been employed by the Company for less than six months and his employment was terminated by the Company without cause. Mr. Brooks
is also entitled to vacation and other employee benefits in accordance with the Company’s policies as well as reimbursement
for an apartment.
Brad Wolfe
In connection with Mr. Wolfe’s
appointment as Executive Vice President, Chief Financial Officer and Treasurer, the Board approved an offer letter to Mr. Wolfe
(the “Wolfe Offer Letter”), which was executed on April 4, 2018. The Wolfe Offer Letter provides that Mr. Wolfe is
entitled to receive an annualized base salary of $240,000, payable in regular installments in accordance with the Company’s
general payroll practices. Mr. Wolfe will also be eligible for a cash bonus of $10,000 for any quarter for which the Company has
net working capital cash in excess of $27,500, and additional incentive compensation of an annual bonus of up to $70,000, subject
to attainment of performance objectives to be mutually agreed upon and established.
Mr. Wolfe’s employment can be terminated
at will. If Mr. Wolfe’s employment is terminated by the Company other than for cause, he is entitled to receive severance
equal to (i) six months of his base salary if he has been employed by the Company for at least twelve months at the time of termination
or (ii) three months of his base salary if he has been employed by the Company for less than twelve months at the time of termination.
Mr. Wolfe is also entitled to vacation and other employee benefits in accordance with the Company’s policies.
Outstanding Equity Awards at Fiscal
Year End 2020
The following table sets forth equity
awards for each NEO outstanding as of December 31, 2020:
|
Name
|
|
Equity incentive plan awards: Number of unearned shares, units or other rights that have not vested
(#)
|
|
Market value of shares or units of stock that have not vested
($)
|
Todd Brooks
President and Chief Executive Officer (Principal Executive Officer)
|
|
|
699,174
|
(1)
|
|
|
344,143
|
|
Brad Wolfe
Executive Vice President, Chief Financial Officer and Treasurer
|
|
|
14,720
|
(2)
|
|
|
7,314
|
|
Brad Wolfe
Executive Vice President, Chief Financial Officer and Treasurer
|
|
|
69,917
|
(3)
|
|
|
34,414
|
|
|
|
(1)
|
Mr. Brooks was awarded 735,973 shares of restricted stock units on May 31, 2019. The restricted stock vests as follows: 2.5%
of the shares vested immediately upon grant on May 31, 2019, the grant date; 2.5% of the shares vested on the first anniversary
of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on
the third anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return
on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company.
|
|
|
(2)
|
Mr. Wolfe was awarded 14,720 shares of restricted stock units on September 30, 2020. The restricted stock vests as follows:
2.5% of the shares shall vest on the first anniversary of the grant date; 2.5% of the shares shall vest on the second anniversary
of the grant date; 2.5% of the shares shall vest on the third anniversary of the grant date; 2.5% of the shares shall vest on the
fourth anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on
their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company.
|
|
|
(3)
|
Mr. Wolfe was awarded 73,597 shares of restricted stock units on May 31, 2019. The restricted stock vests as follows: 2.5%
of the shares vested immediately upon grant on May 31, 2019, the grant date; 2.5% of the shares vested on the first anniversary
of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on
the third anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return
on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company.
|
Payments Upon Severance or Change
in Control
Report on Repricing of Options.
None of the stock options granted under
any of the Company’s plans were repriced in the fiscal year ended December 31, 2020.
Equity Compensation Plan Information
The Company currently does not have any
equity compensation plans not approved by security holders.
|
Plan Category
|
Number
of securities to be issued upon exercise of outstanding options, warrants and rights
(1)(a)
|
Weighted-average
exercise price of outstanding options, warrants and rights (1)(b)
|
Number
of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column
(a) (1)(c)
|
|
Equity compensation plans approved by security holders
|
1,395,993
|
$ 0.80
|
1,421,240
|
(1) As of December 31,
2020 we had 1,421,240 shares of our common stock reserved for issuance under our stock plans with respect to options and warrants
(or restricted stock or restricted stock units) that have not been granted. See Note (10) Share-Based Payment Arrangements to
our consolidated financial statements for further information.
Director Compensation
Directors who are also employees receive
no compensation for serving on the Company’s Board. Non-employee directors are reimbursed for all travel and other expenses
incurred in connection with attending Board and Committee meetings.
Messrs. Hale, Kelly, Miller and Rudolph
received $40,500, $22,375, $10,000, and $15,500 in directors’ fees, respectively, in 2021 in connection with their service
as a director in 2020. The cash compensation includes a retainer for all directors plus additional amounts based on service on
Board committees, and additional amounts payable to Mr. Kelly for serving as Chairman of the Board and Chairman of the Audit Committee.
Based on this compensation plan and assuming continued service as a director in 2021 (including the fees from serving on a committee),
Messrs. Hale, Kelly, Miller and Rudolph are entitled to quarterly fees of $12,125 (or $48,500 annually), $17,475 (or $69,900 annually),
$10,975 (or $43,900 annually) and $12,100 (or $48,400 annually), respectively. Messrs. Miller and Rudolph received grants of 73,600
shares of restricted stock each on September 30, 2020 and Mr. Kelly received a grant of 44,158 shares of restricted stock on January
16, 2020 and 73,600 shares of restricted stock on September 30, 2020. The restricted shares that were granted on September 30,
2020 vest as follows: 2.5% of the shares shall vest on September 30, 2021; 2.5% of the shares shall vest on September 30, 2022;
2.5% of the shares shall vest on September 30, 2023; 2.5% of the shares shall vest on September 30, 2024; 45% of the shares shall
vest upon preferred investors receiving cash proceeds in return on their invested capital in the Company; and 45% of the shares
shall vest upon a change of control of the Company. The restricted shares that were granted on January 16, 2020 vest as follows:
2.5% of the shares vested immediately upon grant; 2.5% of the shares vested on May 31, 2020; 2.5% of the shares shall vest on May
31, 2021; 2.5% of the shares shall vest on May 31, 2022; 45% of the shares shall vest upon preferred investors receiving cash proceeds
in return on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company.
2020 Management Incentive Plan
For 2020, management is eligible to earn
quarterly bonuses based on achieving targeted cash flow, billings, and retention results which exceed defined minimums.
For 2020, Mr. Brooks and Mr. Wolfe did
not receive bonuses in connection with the 2020 Management Incentive Plan.
2021 Management Incentive Plan
For 2021, management is eligible to earn
quarterly bonuses based on achieving targeted net working capital cash balance, renewal rate, billings, and other specified criteria
which are achieved or exceed defined minimums.
|
|
Item 13.
|
Certain Relationships and Related Transactions, and Director Independence
|
The Company’s Board has recognized
that related party transactions present a heightened risk of conflicts of interest and/or improper valuation (or the perception
thereof). The Board therefore adopted a policy to be followed in connection with all related party transactions involving the Company.
A. Identification
of Related Transactions
Under the policy, any “Related
Party Transaction” shall be consummated or shall continue only if:
|
|
1.
|
the Audit Committee approves or ratifies such transaction in accordance with the guidelines set forth in the policy and if
the transaction is on terms comparable to those that could be obtained in arm’s length dealings with an unrelated third party;
or
|
|
|
2.
|
the transaction is approved by the disinterested members of the Board; or
|
|
|
3.
|
the transaction involves compensation approved by the Company’s Compensation Committee.
|
For purposes of the policy, a “Related
Party” is:
|
|
1.
|
a senior officer (which includes at a minimum each executive officer) or director of the Company; or
|
|
|
2.
|
a shareholder owning in excess of five percent of the Company (or its controlled affiliates); or
|
|
|
3.
|
a person who is an immediate family member of a senior officer or director; or
|
|
|
4.
|
an entity which is owned or controlled by someone listed in 1, 2 or 3 above, or an entity in which someone listed in 1, 2 or
3 above has a substantial ownership interest or control of such entity.
|
For purposes of the policy, a “Related
Party Transaction” is a transaction between the Company and any Related Party (including any transactions requiring disclosure
under Item 404 of Regulation S-K under the Exchange Act), other than:
|
|
1.
|
transactions available to all employees generally; and
|
|
|
2.
|
transactions involving less than $5,000 when aggregated with all similar transactions.
|
B. Audit
Committee Approval
The Board determined that the Audit Committee
of the Board is best suited to review and approve Related Party Transactions. Accordingly, at each calendar year’s first
regularly scheduled Audit Committee meeting, management recommends Related Party Transactions to be entered into by the Company
for that calendar year, including the proposed aggregate value of such transactions if applicable. After review, the Audit Committee
approves or disapproves such transactions and at each subsequently scheduled meeting, management updates the Audit Committee as
to any material change to those proposed transactions.
In the event management recommends any
further Related Party Transactions subsequent to the first calendar year meeting, such transactions may be presented to the Audit
Committee for approval or preliminarily entered into by management subject to ratification by the Audit Committee; provided that
if ratification is not forthcoming, management shall make all reasonable efforts to cancel or annul such transaction.
C. Corporate
Opportunity
The Board recognizes that situations
may exist where a significant opportunity may be presented to management or a member of the Board that may equally be available
to the Company, either directly or via referral. Before such opportunity may be consummated by a Related Party (other than an otherwise
unaffiliated 5% stockholder), such opportunity shall be presented to the Board of the Company for consideration.
D. Disclosure
All Related Party Transactions are to
be disclosed in the Company’s applicable filings as required by the Securities Act of 1933 and the Exchange Act and related
rules. Furthermore, all Related Party Transactions shall be disclosed to the Audit Committee of the Board and any material Related
Party Transaction shall be disclosed to the full Board.
E. Other
Agreements
Management assures that all Related Party
Transactions are approved in accordance with any requirements of the Company’s financing agreements.
Please see “Item 10. –
Directors, Executive Officers and Corporate Governance” for a discussion of Director independence.
Related Party Transactions Reviewed During 2019 and
2020
Martin M. Hale, Jr., a member of the
Company’s Board of Directors, is a general partner of HCP-FVA, the holder in excess of 50% of the Company’s Series
A Preferred Stock. The Series A Preferred Stock was purchased by Hale Capital, of which Mr. Hale is a general partner, pursuant
to a September 16, 2013 stock purchase agreement with the Company at a time when Mr. Hale was not a director of the Company. Hale
Capital subsequently assigned all of its rights in the Series A Preferred Stock to HCP-FVA. Under the terms of the Certificate
of Designations, the holders of the Series A Preferred Stock are entitled, as a group, to nominate and to elect up to two directors
so long as at least 85% of the Company’s Series A Preferred Stock is outstanding. HCP-FVA, the sole holder of the Series
A Preferred Stock at the time, nominated and elected Mr. Hale in September 2013 and Michael P. Kelly on October 29, 2014, to the
Company’s Board of Directors.
On November 17, 2017, HCP-FVA provided
a commitment letter to the Company agreeing to finance up to $3 million to the Company (the “Commitment”)
on the terms, and subject to the conditions, set forth in the Commitment. As part of that Commitment, on November 17, 2017, the
Company entered into a Loan and Security Agreement with HCP-FVA and certain other loan parties named therein, pursuant to which
the Lender made a short term loan to the Company in the principal amount of $500,000 payable on May 17, 2018. In connection
with the short term loan, the Company issued HCP-FVA Backstop Warrants to purchase 138,591 shares of common stock. See
Note (7) Notes Payable and Stock Warrants for more information.
On February 23, 2018, we closed on the
Commitment whereby HCP-FVA purchased $3 million of Units (as defined in Note (7) Notes Payable and Stock
Warrants) to backstop a proposed private placement of Units to certain eligible stockholders of the Company. HCP-FVA subscribed
for the full $3 million of Units (at the Company’s election) in the Commitment by payment of $2.5 million in
cash and the conversion of the $500,000 short term loan In connection therewith, the Company issued HCP-FVA additional
Backstop Warrants to purchase 415,774 shares of common stock and Financing Warrants to purchase 3,669,900 shares
of common stock.
On October 9, 2018, the Company closed
on the final tranche of its previously-announced Financing of Units to certain eligible stockholders of the Company. As a result,
the Company received an additional $1,000,000 of gross proceeds from new investors (the “New Investors”)
which is in addition to the $3,000,000 of gross proceeds previously received from HCP-FVA through the subscription of 30,000,000 Units
pursuant to the Commitment on February 23, 2018.
In addition to providing the Company
with $1,000,000 of gross proceeds, the New Investors purchased $520,000 of the Term Loan held by HCP-FVA and 342,000 of
the 900,000 shares of Series A Preferred Stock held by HCP-FVA. Financing Warrants to purchase 636,109 shares
of common stock held by HCP-FVA were also cancelled. Accordingly, the New Investors held Financing Warrants to purchase 1,859,420 shares
of common stock and HCP-FVA held Financing Warrants to purchase 3,033,791 shares of common stock. The transfer of securities
by HCP-FVA to New Investors was subject to certain transfer limitations to ensure the preservation of the Company’s net operating
loss carry forward.
In December 2018, outstanding Financing
Warrants to purchase 489,321,074 of the Company’s common stock were exercised resulting in the issuance of 489,321,074 shares
of common stock (the “Warrant Exercise”). In connection with the Warrant Exercise, the Company received proceeds of
approximately $489,321 which was used to reduce the outstanding principal due on the Amended and Restated Loan Agreement. Such
amounts repaid included $303,379.07 to HCP-FVA, $122,214.13 to ESW Capital LLC, $54,264.08 to Nantahala and $763.92 to Mr. Kelly.
On May 21, 2019, HCP-FVA exercised its
warrant to purchase 1,543,630 shares of common stock on a cashless exercise basis and was issued 1,518,107 shares of common stock.
On December 27, 2019, the Company entered
into Amendment No. 1 to Amended and Restated Term Loan Credit Agreement, by and among the Company, certain of the Company’s
affiliates in their capacities as guarantors, HCP-FVA as administrative agent for the Lenders party thereto, ESW, as co-agent,
and the Lenders, to provide for, among other things, a new $2,500,000 term loan facility to the Company. The Amendment
also provides for certain financial covenants. On December 27, 2019, the Company drew down $1,000,000 of the 2019 Term
Loan and the Company will pay a fixed amount of interest on such advance equal to 15% of the principal amount advanced.
On September 27, 2020, the Company paid the 2019 Term Loan in full.
In connection with the initial advance
of the 2019 Term Loan, HCP-FVA funded $620,000, ESW funded $378,439 and Michael Kelly funded $1,561. ESW is
a greater than 5% stockholder of the Company and Mr. Kelly is a director of the Company.
