text
stringlengths 10k
50k
| metadata
stringlengths 118
36.6k
|
|---|---|
10.
Directors, Executives Officers And Corporate Governance
Information required by this item will be contained in the Companys proxy statement to be filed with the SEC, in connection with the Companys annual meeting of shareholders to be held in 2020 (the 2020 Proxy Statement), which information is incorporated herein by reference.
The Company has adopted a code of ethics that applies to the Companys chief executive officer, a copy of which is posted on our website [IDX]
Our CEO certifies the accuracy of the financial statements contained in our periodic reports, and so certified in this Form 10-K through the filing of Section 302 certifications as exhibits to this Form 10-K.
Section 16(a) of the Securities Exchange Act of 1934 requires the Companys officers and directors, and persons who own more than ten percent of a registered class of the Companys equity securities, to file with the Securities and Exchange Commission and the Nasdaq Stock Market reports of ownership of the Companys securities and changes in reported ownership. Officers, directors and greater than ten percent shareholders are required by SEC rules to furnish the Company with copies of all Section 16(a) reports they file.
Based solely on a review of the reports furnished to the Company, or written representations from reporting persons that all reportable transaction were reported, the Company believes that during the fiscal year ended December 31, 2020, the Companys officers, directors and greater than ten percent owners timely filed all reports they were required to file under Section 16(a).
Item 11.
### Executive Compensation
Item 12.
### Item 13.
Item 14.
Part IV
I tem 15.
1. Financial Statements
The following financial statements of the Company are filed as part of this report:
### AUDITED FINANCIAL STATEMENTS
Statement of Assets and Liabilities as of December 31, 2020
### Schedule of Investments as of December 31, 2020
Statement of Operations as of December 31, 2020
### Statement of Cash Flows as of December 31, 2020
Statement of Changes in Net Assets as of December 31, 2020
### Financial Highlights
*
Signed by Kevin Landis pursuant to powers of attorney.
### EXHIBIT INDEX
Exhibit Number
Descriptions
3.1
Registrants Articles of Amendment and Restatement are incorporated by reference to Exhibit (a)(2) of Pre-Effective Amendment No. 1 to the Registrants Registration Statement on Form N-2 (File No.
3.2
Certificate of Correction to Registrants Articles of Amendment and Restatement is incorporated by reference to Exhibit (a)(2) of the Registrants Registration Statement on Form N-2 (File No.
3.3
Registrants Amended and Restated Bylaws is incorporated by reference to Exhibit 3.1 to the Registrants Form 8-K as filed with the Securities and Exchange Commission on October 25, 2019.
10.1
Registrants Dividend Reinvestment Plan is incorporated by reference to Exhibit (e) of Pre-Effective Amendment to the Registrants Registration Statement on Form N-2 (File No.
10.2
Form of Investment Management Agreement between Registrant and SiVest Group, Inc. (now known as Firsthand Capital Management, Inc.) is incorporated by reference to Exhibit (g) of Pre-Effective Amendment to the Registrants Registration Statement on Form N-2 (File No.
10.3
Form of Custodian Services Agreement between Registrant and PFPC Trust Company is incorporated by reference to Exhibit (j) of Pre-Effective Amendment to the Registrants Registration Statement on Form N-2 (File No.
10.4
Form of Administration and Accounting Agreement between Registrant and BNY Mellon Investment Servicing (US), Inc. is incorporated by reference to Exhibit (k)(1) of Pre-Effective Amendment to the Registrants Registration Statement on Form N-2 (File No.
10.4.1
Form of Amendment to Administration and Accounting Agreement between Registrant and BNY Mellon Investment Servicing (US), Inc. is incorporated by reference to Exhibit 10.4.1 to the Registrant's Form 10-K as filed with the Securities and Exchange Commission on March 16, 2020.
10.5
Notice of Assignment dated February 9, 2011 by PFPC Trust Company assigning Custodian Services Agreement is incorporated by reference to Exhibit (j)(2) of the Registrants Registration Statement on Form N-2 (File No.
10.6
Form of Transfer Agency Services Agreement between Registrant and BNY Mellon Investment Servicing (US), Inc. is incorporated by reference to Exhibit (k)(2) of Pre-Effective Amendment to the Registrants Registration Statement on Form N-2 (File No.
14.1
Registrants Code of Ethics for Principal Executive and Senior Financial Officers is incorporated by reference to Exhibit 14 to the Registrants Form 10-K as filed with the Securities and Exchange Commission on March 21, 2012.
24.1
Power of Attorney is incorporated by reference to Exhibit 24 to the Registrants Form 10-K as filed with the Securities and Exchange Commission on March 21, 2012.
31.1
Certification of Chief Executive Officer and Chief Financial Officer pursuant to Securities Exchange Act Rules 13a-14(a) and 15d-14(a) as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. filed herewith
32.1
Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 18 U.S.C. filed herewith
99.1
Separate financial statements of IntraOp Medical Corp. filed pursuant to Rule 3-09 and 4-08(g) of regulation S-Xincorporated by reference to Exhibit 99.1 to the Registrant's Form 10-K as filed with the Securities and Exchange Commission on March 30, 2021.
Privacy Notice<|endoftext|>And each director is elected to serve until his or her successor is duly elected or until his or her earlier death, resignation or removal.
The Corporation owns a majority of ESH REITs common stock. As a result, the Board of ESH REIT has determined that it is a controlled company under the rules of NASDAQ. Although it therefore qualifies for exemptions from certain corporate governance requirements of NASDAQ, it has chosen not to rely on those exemptions.
The Corporate Governance Guidelines of both the Corporation and ESH REIT define an independent director in accordance with the NASDAQ corporate governance rules for listed companies and require the Board to review and make an affirmative determination as to the independence of each director at least annually. The NASDAQ independence definition includes a series of objective tests, such as that the director is not an employee of the Corporation or ESH REIT, as applicable, and has not engaged in various types of business dealings with the Corporation or ESH REIT, as applicable, or certain other related party transactions with the Corporation or ESH REIT, as applicable. Because it is not possible to anticipate or explicitly provide for all potential conflicts of interest that may affect independence, the Board is also responsible for determining affirmatively, as to each independent director, that no material relationships exist that, in the opinion of the Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In making these determinations, the Board broadly considers all relevant facts and circumstances, including information provided by the directors and the Corporation or ESH REIT, as applicable, with regard to each directors business and personal activities as they may relate to the respective entity and the respective entitys management. The Board may delegate independence determinations to the Nominating and ESG Committee to the extent permitted by NASDAQ.
Each Board has affirmatively determined that each of its directors other than Mr.Haase is independent under the guidelines for director independence set forth in the respective Corporate Governance Guidelines and under all applicable rules of the SEC and NASDAQ.
### Item14.
The following tables set forth the professional services performed and the fees billed by Deloitte for the years ended December31, 2020 and 2019 for each of the Corporation and ESH REIT.
The Corporation
(1)
(2)
(3)
(4)
All other fees are fees for other permissible work performed by Deloitte that does not meet the above category descriptions, including hotel quality assurance compliance reviews and Technical Library subscription fees.
ESH REIT
(1)
(2)
(3)
Each of the Audit Committees of the Corporation and ESH REIT have considered whether the non-audit services provided by Deloitte were compatible with maintaining Deloittes independence and has determined that the nature and substance of the non-audit services did not impair the status of Deloitte as the Corporations or ESH REITs (as applicable) independent registered public accounting firm.
Pre-approval of Audit and
### Non-audit
Related Services of Independent Auditors of the Corporation and ESH REIT
The Audit Committee of each of the Corporation and ESH REIT is responsible for the appointment, compensation, retention, oversight and termination of their respective independent registered public accounting firm. Each Audit Committee has adopted a policy requiring that substantially all audit, audit- related and non-audit services provided by the independent auditor be pre-approved by the Audit Committee.
Pre-approval is not necessary for certain minor non-audit services that (i)do not constitute more than 5% of the total amount of revenues paid by the Corporation or ESH REIT (as applicable) to Deloitte during the fiscal year the non-audit services were provided and (ii)were not recognized by the Corporation or ESH REIT (as applicable) to be non-audit services at the time of the engagement for such services. In the case of such minor non-audit services that are not pre-approved, the services must be promptly brought to the attention of the Audit Committee and approved prior to completion. Each Audit Committee may delegate authority to one or more independent members of the committee to grant pre-approvals of audit and permitted non-audit services, provided that any such pre-approvals are presented to the full Audit Committee at its next scheduled meeting. During 2020, 100% of the non-audit services provided to the Corporation and ESH REIT by Deloitte were pre-approved by their respective Audit Committees.
The Audit Committee of each of the Corporation and ESH REIT has adopted a policy that prohibits their independent auditors from providing the following services: bookkeeping or other services related to the accounting records or financial statements of the Corporation or ESH REIT (as applicable); appraisal or valuation services; providing fairness opinions or preparing contribution-in-kind reports; actuarial services; broker or dealer, investment adviser or investment banking services; legal services and expert services unrelated to the audit; and any other service that the Public Company Accounting Oversight Board prohibits through regulation.
Each Audit Committees pre-approval policy is in the relevant Audit Committee Charter, each of which is available on the investor relations section of our website at www.aboutstay.com.
### PART IV
Item15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
### EXPLANATORY NOTE
Enservco Corporation (the Company) is filing this Amendment No. 1 (the Amendment) to its Annual Report on Form 10-K for the fiscal year ended December 31, 2020, which was originally filed with the Securities and Exchange Commission (SEC) on March 23, 2021 (the Form 10-K). This Amendment is an exhibits-only filing that updates, amends and supplements Part IV, Item 15 of the Form 10-K for the purpose of filing the following exhibits, which were inadvertently omitted from the exhibit index of the original Form 10-K, and updating such exhibit index:
Warrant to purchase 2,000 shares of common stock issued by the Company on June 21, 2016; and
Warrant to purchase 41,667 shares of common stock issued by the Company to Cross River Partners, L.P. on November 11, 2019.
This Amendment also removes the reference to certain warrants listed as Exhibits 10.8 and 10.9 in the exhibit index of the original Form 10-K, which had been exercised in fullduring the second quarter of 2018 (and were therefore no longer outstanding as of) the filing of the original Form 10-K. In addition, as required by Rule 12b-15 under the Securities and Exchange Act of 1934, as amended, this Amendment includes new Exhibits 31.1 and 31.2, certifications of our Principal Executive Officer and Principal Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Accordingly, this Amendment must be read in conjunction with the Companys other filings made with the SEC subsequent to the filing of the Form 10-K, including amendments to those filings, if any.
PART IV.
ITEM 15.
(1)
The consolidated financial statements, notes thereto and independent auditors report thereon, filed as part hereof, were filed as Part II, Item 8 of the original Form 10-K.
(2)
All financial statement schedules are omitted because they are not required or applicable, or the required information is shown in the consolidated financial statements or the notes thereto.
(3)
### Exhibits
Exhibit
No.
Title
1.01
Common Stock Sales Agreement by and between the Company and Alliance Global Partners dated September 28, 2020 (21)
3.01
(1)
3.02
Certificate of Amendment of
(2)
3.03
Certificate of Amendment to the filed on November 20, 2020 (18)
3.04
Amended and Restated Bylaws (3)
4.01
Description of Securities
(13)
4.02*
Warrant to purchase shares of common stock issued by the Company on June 21, 2016
4.03*
Warrant to purchase shares of common stock issued by the Company to Cross River Partners, L.P. on November 11, 2019 (23)
4.04
Warrant to Purchase Common Stock dated September 23, 2020 (17)
10.01
2016 Stock Incentive Plan
(4)
10.02
Employment Agreement between the Company and Marjorie A. Hargrave
(9)
10.03
Loan and Security Agreement with East West Bank, a California banking corporation (22)
10.04
Form of Indemnification Agreement (5)
10.05
Subordinated Loan Agreement
(10)
10.06
$1.0 Million
(7)
10.07
$1.5 Million
(7)
10.08
Intentionally omitted
10.09
Intentionally omitted
10.10
Executive Severance Agreement effective May 29, 2020, by and between Ian E. Dickinson and the Company (14)
10.11
First Amendment to Loan and Security Agreement and Waiver, dated November 20, 2017
(8)
10.12
Second Amendment to Loan and Security Agreement dated October 26, 2018
(11)
10.13
Third Amendment to Loan and Security Agreement dated August 12, 2019 (10)
10.14
Membership Interest Purchase Agreement to purchase Adler Hot Oil Service, LLC (12)
10.15
Seller Subordinated Promissory Note (18)
10.16
PPP Promissory Note dated April 10, 2020. (15)
10.17
Fourth Amendment to Loan and Security Agreement dated July 6, 2020 (16)
10.18
Fifth Amendment to Loan and Security Agreement dated September 23, 2020 (17)
10.19
Sixth Amendment to Loan and Security Agreement dated February 1, 2021 (19)
10.20
Note Conversion Agreement by and between the Company and Cross River Partners, L.P. dated February 3, 2021 (20)
11.1**
Statement of Computation of per share earnings (contained in Note 2 to the Consolidated Financial Statements)
14.1
Code of Business Conduct and Ethics Whistleblower Policy (6)
21.1**
Subsidiaries of Enservco Corporation
23.1**
Consent of Plante & Moran, PLLC
24.1**
31.1*
302 of the Sarbanes-Oxley Act of 2002 (Principal Executive Officer)
31.2*
302 of the Sarbanes-Oxley Act of 2002 (Principal Financial Officer)
32.1**
1350, as adopted pursuant to Section906 of the Sarbanes- Oxley Act of 2002 (Chief Executive Officer)
32.2**
1350, as adopted pursuant to Section906 of the SarbanesOxley Act of 2002 (Chief Financial Officer)
101.INS**
XBRL Instance Document
101.SCH**
XBRL Schema Document
101.CAL**
101.LAB**
XBRL Label Linkbase Document
101.PRE**
101.DEF**
_______________
*
Filed herewith.
**
Filed as an exhibit to the original Form 10-K filed on March 23, 2021.
(1)
Incorporated by reference from the Companys Current Report on Form 8-K dated December 30, 2010, and filed on January 4, 2011.
(2)
Incorporated by reference from the Companys Current Report on Form 8-K dated June 20, 2014, and filed on June 25, 2014.
(3)
(4)
Incorporated by reference from the Companys Proxy Statement on Form DEF 14A and filed on August 16, 2016.
(5)
Incorporated by reference from Exhibit 10.07 to the Companys Annual Report on Form 10-K dated December 31, 2013 and filed on March 18, 2014.
(6)
(7)
Intentionally omitted.
(8)
Incorporated by reference from the Company's Current Report on Form 8-K dated November 20, 2017, and filed on November 21, 2017.<|endoftext|>Shareholder), to the designee of Sovryn and (ii) 1,000 shares of series E convertible preferred stock, par value $0.001 per share of Sovryn (Series E Preferred Stock, and together with Series B Preferred Stock, the Preferred Exchange Shares, and the foregoing exchange of Sovryn Common Shares for Preferred Exchange Shares being the Equity Exchange). See Form 8-K Current Report filed February 23, 2021 for more details.
As result of the issuance of the transfer of the Series B Preferred Stock and the issuance of the shares of Series E Preferred Stock pursuant to the Share Exchange Agreement, a change in control of the Company occurred on February 16, 2021. Under the terms of the Share Exchange Agreement, Sovryn has appointed two (2) members of the Board of Directors of the Company. The appointment of these members is subject to compliance with Rule 14f-1 under the Exchange Act.
Item 13.
Since the beginning of Madisons last fiscal year, no director, executive officer, security holder, or any immediate family of such director, executive officer, or security holder has had any direct or indirect material interest in any transaction or currently proposed transaction, which Madison was or is to be a participant, that exceeded the lesser of (1) $120,000 or (2) one percent of the average of Madisons total assets at year-end for the last three completed fiscal years.
(b) Promoters and control persons
From July 2004 until June 2007, Kevin Stunder and Joel Haskins were promoters of Madisons business. From June 2007 until July 2011, Joseph Gallo and Steven Cozine were promoters of Madisons business. From July 2011 until September 2014 Joseph Gallo was the promoter of Madisons business. From September 2014 until November 2014 Brent Inzer was the promoter of Madisons business. From November 2014 until Jan 2015 Mr. Frank McEnulty was the promoter of Madisons business. From January 2015 until September 2016 Mr. Joseph Gallo was the promoter of Madisons business. From September 2016 until March 2018 Mr. Thomas Brady was the promoter of Madisons business. Since March 3, 2018 until July 14, 2020 Joseph Gallo was the promoter of Madisons business. From July 14, 2020 until present Jeffrey Canouse has been the promoter of Madison,. From February 17, 2021 Jeffrey Canouse, Phillip Falcone, Warren Zenna and Henry Turner have been the promoters of Madison, none of these promoters have received anything of value from Madison nor is any person entitled to receive anything of value from Madison for services provided as a promoter of the business of Madison.
(c) Director independence
Madisons board of directors currently consists of Phillip Falcone and Jeffrey Canouse. Pursuant to Item 407(a)(1)(ii) of Regulation S-K of the Securities Act, Madisons board of directors has adopted the definition of independent director as set forth in Rule 4200(a)(15) of the NASDAQ Manual. In summary, an independent director means a person other than an executive officer or employee of Madison or any other individual having a relationship which, in the opinion of Madisons board of directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director, and includes any director who accepted any compensation from Madison in excess of $200,000 during any period of 12 consecutive months with the three past fiscal years. Also, the ownership of Madisons stock will not preclude a director from being independent.
In applying this definition, Madisons board of directors has determined that no director currently qualifies as an independent director pursuant to Rule 4200(a)(15) of the NASDAQ Manual.
As of the date of the report, Madison did not maintain a separately designated compensation or nominating committee. Madison has also adopted this definition for the independence of the members of its audit committee.
### Item 14.
(1) Audit Fees
The aggregate fees billed for each of the last two fiscal years for professional services rendered by the principal accountant for Madisons audit of annual financial statements and for review of financial statements included in Madisons Form 10-Qs or services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for those fiscal years was:
2020 - $8,900 K. R. Margetson Ltd.
2019 - $8,900 K. R. Margetson Ltd.
(2) Audit-Related Fees
The aggregate fees billed in each of the last two fiscal years for assurance and related services by the principal accountants that are reasonably related to the performance of the audit or review of Madisons financial statements and are not reported in the preceding paragraph:
2020 - $nil K. R. Margetson Ltd.
2019 - $nil K. R. Margetson Ltd.
(3) Tax Fees
The aggregate fees billed in each of the last two fiscal years for professional services rendered by the principal accountant for tax compliance, tax advice, and tax planning was:
2020 - $nil K. R. Margetson Ltd.
2019 - $nil K. R. Margetson Ltd.
(4) All Other Fees
The aggregate fees billed in each of the last two fiscal years for the products and services provided by the principal accountant, other than the services reported in paragraphs (1), (2), and (3) was:
2020 - $nil K. R. Margetson Ltd.
2019 - $nil K. R. Margetson Ltd.
(6)
The percentage of hours expended on the principal accountants engagement to audit Madisons financial statements for the most recent fiscal year that were attributed to work performed by persons other than the principal accountants full time, permanent employees was nil %.
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Convertible into 1,300,000 shares, warrants exercisable for 650,000 shares and rights exchangeable for 65,000 shares of our common stock. The address for MMCAP International Inc. is Mourant Governance Services (Cayman) Limited, 94 Solaris Avenue, Camana Bay, P.O. Box 1348, Grand Cayman, KY1-1108, Cayman Islands. The address for MM Asset Management Inc. is 161 Bay Street, TD Canada Trust Tower Ste 2240, Toronto, ON M5J 2S1, Canada.
(9)
The information reported is based on a Schedule 13G filed on February 11, 2021. According to the Schedule 13G, as of December 31, 2020, Polar Asset Management Partners Inc. (Polar), which serves as the investment advisor to Polar Multi-Strategy Master Fund (PMSMF) with respect to the 1,3000,000 shares of our common stock directly held by PMSMF, has sole voting and dispositive power with respect to such securities. The address for Polar is 401 Bay Street, Suite 1900, PO Box 19, Toronto, Ontario M5H 2Y4, Canada.
(10)
According to the Schedule 13G, as of December 31, 2020, Mizuho Financial Group, Inc., Mizuho Bank, Ltd. and Mizuho Americas LLC may be deemed to be indirect beneficial owners of 1,150,000 shares of our common stock held by Mizuho Securities USA LLC, which is their wholly-owned subsidiary. Mizuho Financial Group, Inc. has sole voting and dispositive power over such securities. The address of each of Mizuho Financial Group, Inc. and Mizuho Bank, Ltd. The address of each of Mizuho Americas LLC and Mizuho Securities USA LLC is 1271 Avenue of the Americas, New York, NY 10020.
(11)
According to the Schedule 13G, as of December 31, 2020, each of Weiss Asset Management LP, WAM GP LLC and Andrew M. Weiss has shared voting and dispositive power over 1,200,000 shares of our common stock. Weiss Asset Management LP is the sole investment manager to a private investment partnership (the Partnership) and a private investment fund (Fund). Andrew Weiss is the managing member of WAM GP LLC. Shares reported for WAM GP LLC, Andrew Weiss and Weiss Asset Management LP include shares beneficially owned by the Partnership and the Fund. The address for each of Weiss Asset Management LP, WAM GP LLC and Andrew M. Weiss is 222 Berkeley St., 16th floor, Boston, MA 02116.
ITEM 13.
On August 20, 2020, the Company issued an unsecured promissory note to Ventoux Acquisition. The outstanding balance under the promissory note of $151,812 was repaid in full on December31, 2020.
In addition, at the closing of the IPO, the Companys stockholders prior to the IPO purchased from the Company an aggregate of 6,000,000 Private Warrants at $1.00 per Private Warrant (for a total purchase price of $6,000,000). In connection with the closing of the issuance sale of the Over-Allotment Option Units, the Companys stockholders prior to the IPO purchased from the Company an aggregate of 675,000 Private Warrants at $1.00 per Private Warrant (for a total purchase price of $675,000). As of December 31, 2020, the Company had no loans outstanding, including any loans from its directors or officers.
Jonas Grossman and Alex Weil are affiliated with Chardan Capital Markets, in addition to being directors of the Company. While no direct compensation arrangements regarding such individuals have been entered into regarding such fees, these executives may benefit indirectly from any such amounts payable to Chardan Capital Markets in respect of marketing fees, costs and expenses incurred by Chardan Capital Markets in connection with the identification, review and negotiation and approval of the initial business combination.
### Related Party Policy
Such transactions will require prior approval by our Audit Committee and a majority of our disinterested independent directors, or the members of our board of directors who do not have an interest in the transaction, in either case who had access, at our expense, to our attorneys or independent legal counsel.
To further minimize potential conflicts of interest, we have agreed not to consummate a business combination with an entity which is affiliated with any of our initial stockholders unless we obtain an opinion from an independent investment banking firm that the business combination is fair to our stockholders from a financial point of view.
### Director Independence
For a description of the director independence, see above PartIII,Item 10 Directors, Executive Officers and Corporate Governance.
ITEM 14.
Audit Fees
For the year ended December 31, 2020, fees for our independent registered public accounting firm were approximately $65,400, for the services Withum performed in connection with our IPO and the audit of our December 31, 2020 financial statements included in this Annual Report on Form 10-K.
### Audit-Related Fees.
For the year ended December 31, 2020, our independent registered public accounting firm did not render assurance and related services related to the performance of the audit or review of financial statements.
Tax Fees
For the year ended December 31, 2020, fees for our independent registered public accounting firm were approximately $7,500 for tax compliance, tax advice and tax planning.
### All Other Fees
For the year ended December 31, 2020, there were no fees billed for products and services provided by our independent registered public accounting firm other than those set forth above.
Pre-Approval Policy
part IV
ITEM 15.
(a)
(1)
Financial Statements:
(2)
None.
(b)
### Exhibits
Exhibits which are incorporated herein by reference can be obtained from the SECs website at [IDX]
*
Filed herewith.
**
Furnished herewith.
ITEM 16.
### FORM 10-K SUMMARY
Not applicable.<|endoftext|>Options which will become exercisable by December14, 2021. Includes 534,867 shares issuable pursuant to exercisable options. Does not include 75,489 shares underlying unvested restricted stock units that will not vest by December14, 2021. Includes 37,353 restricted stock units that will vest by December14, 2021.
(9)
Does not include 24,786 shares issuable pursuant to options granted by the Company that are not currently exercisable and will not become exercisable by December14, 2021 and includes 16,692 shares pursuant to options which will become exercisable by December14, 2021. Includes 10,000 shares issuable pursuant to exercisable options. Does not include 14,260 shares underlying unvested restricted stock units that will not vest by December14, 2021. Does include 6,218 shares underlying vested restricted stock units that will vest by December14, 2021.
(10)
Does not include 58,916 shares issuable pursuant to options granted by the Company that are not currently exercisable and will not become exercisable by December14, 2021. Includes 30,350 shares issuable pursuant to exercisable options. Does not include 57,362 shares underlying unvested restricted stock units that will not vest by December14, 2021.
(11)
Does not include 12,802 shares underlying unvested restricted stock units that will not become exercisable by December14, 2021
(12)
Does not include 38,578 shares underlying unvested restricted stock units that will not become exercisable by December14, 2021
(13)
Includes 544,867 shares issuable pursuant to exercisable options, shares 133,034 shares pursuant to which options which will become exercisable by December14, 2021 and includes 64,523 shares underlying vested restricted stock units that will vest by December14, 2021.
Item13.
Certain Relationships and Related-Party Transactions
The Audit Committee reviews all related party transactions (as defined by Item 404 of Regulation
S-K) in accordance with NASDAQ listing standards. In addition, the charter of the Audit Committee requires the Audit Committee to review a summary of any directors or officers related-party transactions and potential conflicts of interest on a yearly basis. The charter also requires the Audit Committee to review our conflict of interest policy (which is part of our Code of Conduct) and compliance with that policy on an annual basis.
We are not aware of any related-party transaction since the beginning of fiscal 2021 required to be reported under our policy or applicable SEC rules for which our policies and procedures did not require review or for which such policies and procedures were not followed.
There are no family relationships among the executive officers and directors, and there are no arrangements or understandings between any independent director or any other person pursuant to which that independent director was selected as a director.
### Director Independence
In accordance with the listing standards of The NASDAQ Stock Market (NASDAQ) and our Corporate Governance Guidelines (the Guidelines), our Board consists of a majority of independent directors. The Board has determined that all members of the Board, other than Mr.Baur, meet the requirements for being independent as defined in the U.S. Securities and Exchange Commission (SEC) rules and regulations and NASDAQ listing standards.
The Board maintains three committees as follows: (1)an Audit Committee, (2)a Compensation Committee, and (3)a Nominating and Corporate Governance Committee. Each committee of the Board is comprised only of independent directors.
In addition, under our Corporate Governance Guidelines, executive officers are prohibited from serving as a director of another company that concurrently employs a director of the Company.
### Item14.
Fees
As reflected in the table below, we incurred fees in fiscal 2021 and 2020 for services performed by Grant Thornton related to such periods.
In the above table, in accordance with applicable SEC rules:
Audit Fees are fees for professional services for the audit of the consolidated financial statements included in our Form
10-K, the audit of internal control over financial reporting, the review of financial statements included in our Form
10-Qs, and services that are normally provided by the auditor in connection with statutory and regulatory filings or engagements; and
Tax Fees are fees for professional services related to foreign tax compliance, tax advice and tax planning.
### Audit Committees
Pre-Approval
Policies and Procedures
It is the policy of the Audit Committee to pre-approve all audit and permitted non-audit services proposed to be performed by our independent auditor. All audit and permitted non-audit services performed in fiscal 2021 were pre-approved by the Audit Committee. The process for such pre-approval is typically as follows: Audit Committee pre-approval is sought at one of the Audit Committees regularly scheduled meetings following the presentation of information at such meeting detailing the particular services proposed to be performed. The authority to pre-approve non-audit services may be delegated by the Audit Committee, pursuant to guidelines approved by the Audit Committee, to one or more members of the Audit Committee. None of the services described above were approved by the Audit Committee pursuant to the exception provided by the Exchange Act rules.
The Audit Committee has reviewed the non-audit services provided by Grant Thornton and has determined that the provision of such services is compatible with maintaining Grant Thorntons independence for the period of time during which it has served as our independent auditor.
### PART IV
Item15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Annual Report on Form 10-K for the fiscal year ended July 31, 2012.
10.10
Fourth Amendment, dated as of December 4, 2014 to Credit Agreement dated as of January 27, 2006.
1 to Oil-Dris (File No. 001-12622) Quarterly Report on Form 10-Q for the quarter ended October 31, 2014.
10.11
Fifth Amendment, dated as of January 31, 2019 to Credit Agreement dated as of January 27, 2006.
1 to Oil-Dris (File No.
10.12
Annex A to the Fifth Amendment to Credit Agreement dated as of January 27, 2006.
2 to Oil-Dris (File No.
10.13
$18,500,000 Note Agreement dated as of November 12, 2010 among Oil-Dri Corporation of America, The Prudential Insurance Company of America, Prudential Retirement Insurance and Annuity Company, Forethought Life Insurance Company, Physicians Mutual Insurance Company and BCBSM, Inc. dba Blue Cross and Blue Shield of Minnesota.
1 to Oil-Dris (File No. 001-12622) Current Report on Form 8-K filed on November 16, 2010.
### Exhibit
No.
Description
SEC Document Reference
10.14
Amended and Restated Note Purchase and Private Shelf Agreement, dated as of May 15, 2020, among Oil-Dri Corporation of America, PGIM, Inc. and existing noteholders and purchasers named therein.
1 to Oil-Dri's (file No. 001-12622) Current Report on Form 8-K filed on May 21, 2020.
10.15
Deferred Compensation Plan, as amended and restated effective April 1, 2003.*
Incorporated by reference to Exhibit (10)(j)(1) to Oil-Dris (File No. 001-12622) Quarterly Report on Form 10-Q for the quarter ended April 30, 2003.
10.16
First Amendment, effective as of January 1, 2007, to Deferred Compensation Plan, as amended and restated effective April 1, 2003.*
1 to Oil-Dris (File No.
10.17
Second Amendment, effective as of January 1, 2008, to Deferred Compensation Plan, as amended and restated effective April 1, 2003.*
2 to Oil-Dris (File No.
10.18
Annual Incentive Plan (as amended and restated effective January 1, 2008).*
4 to Oil-Dris (File No.
10.19
2005 Deferred Compensation Plan (as amended and restated effective January 1, 2008)*
3 to Oil-Dris (File No.
10.20
First Amendment, effective July 1, 2020, to the 2005 Deferred Compensation Plan (as amended and restated effective January 1, 2008).*
### I ncorporate d by reference to Exhibit 10.2
4 to Oil Dri's
(
File No. 001-12622) Annual Report on Form 10-K for the fiscal year ended July 31, 2020.
10.21
2006 Long Term Incentive Plan (as amended and restated effective July 28, 2006)*
001-12622) Definitive Proxy Statement on Schedule 14A filed on November 3, 2006.
10.22
First Amendment, effective as of January 1, 2008, to 2006 Long Term Incentive Plan (as amended and restated effective July 28, 2006)*
5 to Oil-Dris (File No.
10.23
Second Amendment, effective as of October 15, 2015, to 2006 Long Term Incentive Plan (as previously amended and restated effective July 28, 2006)*
001-12622) Definitive Proxy Statement on Schedule 14A filed on October 28, 2015.
10.24
Third Amendment to 2006 Long Term Incentive Plan*
Incorporated by reference to Appendix A of Oil-Dri's (File No. 001-12622) Definitive Proxy Statement on Schedule 14A filed on October 30, 2019
### Exhibit
No.
Description
SEC Document Reference
10.25
Form of 2006 Long Term Incentive Plan Employee Stock Option Agreement for Class A Common Stock.*
2 to Oil-Dris (file No.
10.26
Form of 2006 Long Term Incentive Plan Employee Stock Option Agreement for Common Stock.*
3 to Oil-Dris (file No.
10.27
Form of 2006 Long Term Incentive Plan Employee Stock Option Agreement for Class B Stock.*
4 to Oil-Dris (file No.
10.28
Form of 2006 Long Term Incentive Plan Director Stock Option Agreement for Common Stock.*
5 to Oil-Dris (file No.
10.29
Form of 2006 Long Term Incentive Plan Restricted Stock Agreement for Class A Common Stock.*
6 to Oil-Dris (file No.
10.30
Form of 2006 Long Term Incentive Plan Restricted Stock Agreement for Common Stock.*
7 to Oil-Dris (file No.
10.31
Form of 2006 Long Term Incentive Plan Restricted Stock Agreement for Class B Stock.*
8 to Oil-Dris (file No.
10.32
Form of 2018 Restricted Stock Agreement for Class B Stock under the 2006 Long Term Incentive Plan.*
29 to Oil-Dri's (file No. 001-12622) Annual Report on Form 10-K for the fiscal year ended July 31, 2018
10.33
Fourth Amendment, dated as of December 4, 2020, to Memorandum of Agreement #1450 Fresh Step dated as of March 12, 2001.
4 to Oil-Dris (file No. 001-12622) Quarterly Report on Form 10-Q for the quarter ended October 31, 2020.
11.1
Statement re: Computation of Net Income Per Share.
Filed herewith.
14.1
### Amended and Restated Code of Ethics
Available at Oil-Dris website at www.oildri.com or in print upon request to Investor Relations, Oil-Dri Corporation of America, 410 North Michigan Avenue, Suite 400, Chicago, IL 60611-4213, telephone (312) 321-1515 or e-mail to [email protected].
21.1
### Subsidiaries of
Filed herewith.
23.1
Filed herewith.
### Exhibit
No.
Description
SEC Document Reference
31.1
Certifications pursuant to Rule 13a 14(a).
Filed herewith.
32.1
Certifications pursuant to Section 1350 of the Sarbanes-Oxley Act of 2002.
Furnished herewith.
### Mine Safety Disclosure
Filed herewith.
101.INS
### XBRL Taxonomy Instance Document
101.SCH
Furnished herewith.
101.CAL
Furnished herewith.
101.DEF
Furnished herewith.
Furnished herewith
101.LAB
### XBRL Taxonomy Extension Labels Linkbase Document
Furnished herewith.
101.PRE
Furnished herewith.
Certain portions of this exhibit have been redacted pursuant to Item 601(b)(10) of Regulation S-K. A copy of the omitted portions will be furnished supplementally to the Securities and Exchange Commission upon request.
*<|endoftext|>This Amendment No.1 to Form10-K (this Amendment) amends the Companys Annual Report on Form10-K for the fiscalyear ended December31, 2020, originally filed with the Securities and Exchange Commission (the SEC) on February25, 2021 (the Original Filing). The Company is filing this Amendment to amend PartIII of the Original Filing to include the information required by and not included in PartIII of the Original Filing. This information was previously omitted from the Original Filing in reliance on General Instruction G(3)to the Annual Report on Form10-K, which permits the above-referenced information to be incorporated in the Annual Report on Form10-K by reference from a definitive proxy statement, if such definitive proxy statement is filed no later than 120days after December31, 2020. At this time, the Company is filing this Amendment to include such information because the Company no longer intends to file its definitive proxy statement within 120days of the end of its fiscalyear ended December31, 2020.
Except as set forth in PartIII and IV below or as described above, no other changes are made to the Original Filing other than updating the cover pageof the Original Filing. Accordingly, this Amendment should be read together with our Original Filing and our other filings made with the SEC subsequent to the filing of the Original Filing.
As required by Rule12b-15 under the Securities Exchange Act of 1934, as amended (the Exchange Act), Item15 of PartIV of the Original Filing has been amended to contain currently dated certifications from our Chief Executive Officer and Chief Financial Officer. The currently dated certifications are attached hereto as Exhibits 31.1 and 31.2. Because no financial statements are contained in this Amendment, we are not including certifications pursuant to 18 U.S.C. 1350.
References herein to the Company, Leaf Group, we, our, and us refer to Leaf GroupLtd.
### Proposed Merger with Graham
On April3, 2021, we entered into an Agreement and Plan of Merger (the merger agreement) with Graham Holdings Company, a Delaware Corporation (Graham), and Pacifica Merger Sub,Inc., a Delaware corporation and a wholly owned subsidiary of Graham (the merger subsidiary), pursuant to which Merger Sub will be merged with and into the Company (the merger), with the Company surviving the Merger as a wholly owned subsidiary of Parent.
Subject to the terms and conditions set forth in the merger agreement (and as described in further detail in the preliminary proxy statement filed by the Company with the SEC on April23, 2021), if the merger is consummated, then, at the effective time of the merger, each share of Company common stock, par value $0.0001 per share (the common stock), issued and outstanding immediately prior to the effective time of the merger (other than shares held by the Company as treasury stock, owned by Graham or the merger subsidiary or as to which holders thereof have properly and validly exercised their statutory rights of appraisal in accordance with Section262 of the Delaware General Corporation Law) will be automatically converted into the right to receive cash in an amount equal to $8.50, without interest and less any applicable withholding taxes (the merger consideration).
At the effective time of the merger, by virtue of the merger and without any action on the part of the holders, (i)each outstanding option to purchase shares of common stock (each referred to as a stock option) issued under the Companys Amended and Restated 2010 Incentive Award Plan (referred to as the 2010 Plan) will be cancelled and, in consideration thereof, the holder of such stock option will receive an amount in cash equal to, net of applicable tax withholding, the product of (x)the excess, if any, of the merger consideration over the exercise price per share of common stock underlying such stock option, multiplied by (y)the total number of shares of common stock subject to such stock option, (ii)each outstanding restricted stock unit of the Company (each referred to as an RSU) issued under the 2010 Plan that is vested immediately prior to the effective time of the merger (or would become vested by the terms thereof as a result of the merger) will be cancelled and, in consideration thereof, the holder of such RSU will receive an amount in cash equal to, net of applicable tax withholding, the merger consideration in respect of each share of common stock subject to such RSU, and (iii)each outstanding RSU that is not vested immediately prior to the effective time of the merger (and would not become vested by the terms thereof as a result of the merger) will, as of the effective time, be cancelled and, in consideration thereof, the holder of such unvested RSU will receive the amount described in clause (ii), subject to and conditioned on the same terms and conditions (including any terms and conditions relating to vesting and acceleration thereof) as applicable to such unvested RSU awards.
Prior to the execution of the merger agreement, all stock options held by Company employees were vested according to their terms. Thus, the merger will have no effect on the vesting of any outstanding stock options held by employees. Stock options held by the Companys non-employee directors that are not otherwise vested prior to the effective time of the merger will become automatically vested as of the effective time of the merger, pursuant to their terms. In addition, and for the avoidance of doubt, any stock option with an exercise price equal to or greater than the merger consideration will be cancelled for no consideration.
LEAF GROUPLTD.
### INDEX TO FORM10-K
Page
PART III.
### Item 10
### Item 11
Executive Compensation
### Item 12
### Item 13
### Item 14
PART IV.
Item 15
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
For the year ended December 31, 2020. Our audit of internal control over financial reporting of also did not include an evaluation of the internal control over financial reporting of Mobile Mini, Inc.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the 2020 consolidated financial statements of the Company. This material weakness was considered in determining the nature, timing and extent of audit tests applied in our audit of the 2020 consolidated financial statements, and this report does not affect our report dated February 26, 2021, except for the effects of the restatement described in Note 1, as to which the date is May 10, 2021, which expressed an unqualified opinion on those financial statements.
### Basis for Opinion
/s/ Ernst & Young LLP
### Baltimore, Maryland
February 26, 2021, except for the effect of the material weakness described in the second paragraph above, as to which the date is May 10, 2021
ITEM 9B.Other Information
Transition of President and Chief Operating Officer
On February 25, 2021, the Company announced that Kelly Williams, its President and Chief Operating Officer, will leave the Company on July 31, 2021. The Company and Mr. Williams entered into a transition, separation and release agreement on February 25, 2021 (the "Williams Separation Agreement") relating to his transition and ultimate departure from the Company pursuant to which, among other things, in connection with his termination (i) Mr. Williams will receive a lump-sum cash payment, (ii) Mr. Williams' time-based equity will vest, and (iii) Mr. Williams' performance-based equity will vest or not vest depending upon performance targets. Mr. Williams will support the Company in all matters relating to the orderly transition of his duties and responsibilities and will be available to consult with the Company after his termination date.
The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the full text of the William Separation Agreement, which is filed as Exhibit 10.16 to this Annual Report on Form 10-K and incorporated herein by reference.
### Adoption of Second Amended and Restated Bylaws
On February 24, 2021, the Board of Directors unanimously approved and adopted the Second Amended and Restated Bylaws of the Company (the "Second A&R Bylaws"). The bylaws of the Company were amended and restated to remove the requirement that the Company "shall" have a President and Chief Operating Officer, providing instead that the Company "may" appoint either of these roles.
The foregoing description of the Second A&R Bylaws is not complete and is subject to, and qualified in its entirety by reference to the full text of the Second A&R Bylaws, which are filed as Exhibit 3.2 of this Annual Report on Form 10-K and incorporated herein by reference.
### Annual Executive Compensation Review
Pursuant to their Employment Agreements, the Compensation Committee of the Board has performed an annual review of executive compensation and made adjustments to the compensation of Mr. Soultz and Mr. Boswell. Mr. Soutlz base salary was increased from $850,000 to $900,000, his annual target bonus was moved from 125% of base salary to 150% and his annual long-term incentive grant will be increased from $2,600,000 to $3,500,000. Mr. Boswells base salary was increased from $525,000 to $600,000, his annual target bonus was moved from 75% of base salary to 125% and his annual long-term incentive grant will be increased from $1,050,000 to $1,400,000. No amendments or modifications were made to their Employment Agreements.
PART III
The information to be included under the captions Proposal 1 Election of Directors, Codes of Business Conduct and Ethics, and Audit Committee, if applicable, in the Companys definitive proxy statement for the 2021 annual meeting of stockholders, filed with the Securities and Exchange Commission on April 23, 2021, is hereby incorporated by reference in answer to this item.
The information to be included under the captions Executive Compensation, Compensation Committee Interlocks and Insider Participation, and Compensation Committee Report, if applicable, in the Companys definitive proxy statement for the 2021 annual meeting of stockholders, filed with the Securities and Exchange Commission on April 23, 2021, is hereby incorporated by reference in answer to this item.
The information to be included under the captions Equity Compensation Plan Information and Security Ownership of Certain Beneficial Owners and Management, if applicable, in the Companys definitive proxy statement for the 2021 annual meeting of stockholders, filed with the Securities and Exchange Commission on April 23, 2021, is hereby incorporated by reference in answer to this item.
The information to be included under the captions Certain Relationships and Related Party Transactions and Director Independence, if applicable, in the Companys definitive proxy statement for the 2021 annual meeting of stockholders, filed with the Securities and Exchange Commission on April 23, 2021, is hereby incorporated by reference in answer to this item.
The information to be included under the caption Independent Registered Public Accounting Firm Fee Information, if applicable, in the Companys definitive proxy statement for the 2021 annual meeting of stockholders, filed with the Securities and Exchange Commission on April 23, 2021, is hereby incorporated by reference in answer to this item.
PART IV
Financial Statement Schedule
### Exhibits
Exhibit Index
*Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish copies of any of the omitted schedules upon request by the Securities and Exchange Commission.
Signatures<|endoftext|>Is accumulated and communicated to management, including the principal executive officer and principal financial officer, to allow timely decisions regarding required disclosure.
The Companys principal executive officer and principal financial officer, with the assistance of other members of the Companys management, have evaluated the effectiveness of the Companys disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the period covered by this annual report. Based upon such evaluation, the Companys principal executive officer and principal financial officer have concluded that the Companys disclosure controls and procedures are effective as of the end of the period covered by this annual report.
Management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. The Companys internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America.
The Companys internal control over financial reporting includes those policies and procedures that: pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that the receipts and expenditures of the Company are being made only in accordance with authorizations of its management and directors; and provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Companys assets that could have a material effect on its financial statements.
Also, projections of any evaluation of the effectiveness of internal control over financial reporting to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with policies or procedures may deteriorate.
A significant deficiency is a control deficiency, or a combination of deficiencies, in internal control over financial reporting that is less severe than a material weakness; yet important enough to merit attention by those responsible for oversight of the Companys financial reporting.
The Companys management assessed the effectiveness of the Companys internal control over financial reporting as of December31, 2020. In making this assessment, management used the criteria set forth in Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission ("COSO"). Based on their assessment using those criteria, management concluded that, as of December31, 2020, the Companys internal control over financial reporting was effective.
Management is also responsible for compliance with laws and regulations relating to safety and soundness which are designated by the FDIC and the appropriate federal banking agency. Management assessed its compliance with these designated laws and regulations relating to safety and soundness and concluded that the Company complied, in all significant respects, with such laws and regulations during the year ended December31, 2020.
The Companys principal executive officer and principal financial officer have concluded that there was no change in the Companys internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that occurred during the quarter ended December31, 2020 that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting.
In accordance with Item 308(b) of Regulation S-K under the Exchange Act, this annual report does not include an attestation report of the Companys independent registered public accounting firm regarding internal control over financial reporting because the Company is a smaller reporting company that is not an accelerated filer.
Item 9B.Other Information.
None.
### PART III
Item 10.Directors, Executive Officers and Corporate Governance.
The information required by this item is incorporated by reference to the 2021 Proxy Statement under the captions "Directors," "Corporate Governance" and "Stock Ownership of Management and Principal Shareholders," except for disclosure of our executive officers, which is included in Item 1 of this Form 10-K under the section titled Information about our Executive Officers.
The information required by this item is incorporated by reference to the 2021 Proxy Statement under the captions Executive Compensation and Director Compensation.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters.
The following table shows information at December31, 2020 for all equity compensation plans under which shares of our common stock may be issued.
The remaining information required by this item is incorporated by reference to the 2021 Proxy Statement under the captions "Equity Plans" and "Stock Ownership of Management and Principal Shareholders."
The information required by this item is incorporated by reference to the 2021 Proxy Statement under the captions "Certain Transactions with Management" and "Corporate Governance."
### Item 14.Principal Accounting Fees and Services.
The information required by this item is incorporated by reference to the 2021 Proxy Statement under the caption "Principal Accounting Fees and Services."
PART IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Approved by our board of directors. We believe that we have executed all of the transactions set forth below on terms no less favorable to us than could have been obtained from unaffiliated third parties. Our Audit Committee is responsible for reviewing all related party transactions.
We describe below the transactions and series of similar transactions, since December31, 2019, to which we were a participant or will be a participant, in which: the amount involved exceeds the lesser of $120,000 or onepercent of the average of the smaller reporting companys total assets atyear-end for the last two completed fiscalyears; and any of the directors, executive officers, holders of more than 5% of capital stock of the Company or any member of their immediate family had or will have a direct or indirect material interest.
Steve Gutterman, our Chief Executive Officer and one of our directors, agreed to a 50% reduction in his base salary given the uncertainty of the business environment surrounding the COVID-19 pandemic. On September13, 2020, Mr.Gutterman agreed not to enter into discussions to adjust his base salary back to its original level until the Company is cash flow positive.
John Barker Dalton, one of our directors, owns 100%percent of Dalton Adventures,LLC. Dalton Adventures owns 8,859,117 shares of the Companys common stock, which it acquired in connection with the sale of its assets that constitute the business of SevenFive Farm to the Company, which transaction was finalized on May25, 2020.
In addition, in conjunction with such acquisition, the Company entered into a lease agreement with Dalton Adventures in which the Company rents greenhouse space in Boulder, Colorado for $33,680 amonth, which includes base rent and real estate taxes.The terms of such arrangements with Dalton Adventures were previously disclosed in the Companys Current Reports on Form8-K filed on February24, 2020 and May29, 2020, and a copy of the Asset Purchase Agreement and Commercial Lease between the Company and Dalton Adventures were attached as exhibits to the Companys Annual Report on Form10-K for theyear ended December31, 2019.
On May 29, 2020, we entered into a subscription agreement, as amended, with Hershey Strategic Capital, LP and Shore Ventures III, LP (collectively the Hershey Investor) with respect to the sale of shares of common stock and warrants to purchase common stock. Adam Hershey is the managing partner of each such entity. During the year ended December 31, 2020, we sold $3,000,000 of securities to the Hershey Investor, representing 7,532,010 shares of common stock and warrants to purchase 5,649,007 shares of common stock with an exercise price of $0.5565 per share. In accordance with the terms of the subscription agreement, we issued an additional 1,631,000 warrants in December 2020 to purchase common stock with an exercise price of $0.4917 to the Hershey Investor.
In addition, on June3, 2020, the Company entered into a consulting agreement with Mr.Hershey pursuant to which he would act as a strategic consultant for the Company, including providing assistance with the sourcing and evaluation of M&A deals, strategic capital and strategic partnerships or joint ventures. Mr.Hershey is paid an initialmonthly rate of $8,333 for the services, subject to certain adjustments described therein.
On December 23, 2020, allfiveboard members of the Company purchased 10% senior convertible promissory notes (10% Notes) from the Company for an aggregate amount of $340,000. I n connection with the issuance of the 10% Notes, the noteholders received warrants to purchase shares of our common stock equal to 20% coverage of the aggregate principal amount at $0.56 per share. In the aggregate, this equals 121,431 shares of our common stock. The 10% Notes will bear interest at an annual rate of 10% and will mature on December 23, 2023. The noteholders have the option at any time to convert up to 50% of the outstanding unpaid principal and accrued interest.
### Director Independence
Williams and Travia are independent under the OTCQB listing standards and the applicable rules promulgated by the SEC. Applying these same rules, our Board has determined that all members of the Audit Committee and the Compensation Committee are independent.
ITEM 14.
Fees to Independent Registered Public Accounting Firm for FiscalYear 2020 and 2019
Audit fees consist of fees for professional services rendered for the audit of our consolidated financial statements included in our Annual Report on Form10-K and the review of financial statements included in our Quarterly Reports on Form10-Q. Audit-related fees relate to procedures performed in conjunction with our FormS-1 and FormS-8 filings. The aggregate fees billed for professional services rendered by our principal accountants, Marcum LLP, were as follows:
The Audit Committee approves in advance all audit and non-audit services to be performed by our independent auditors. As part of its pre-approval procedures, the Audit Committee considers whether the provision of any proposed non-audit services is consistent with the SECs rules on auditor independence. In accordance with its pre-approval procedures, the Audit Committee has pre-approved all specified audit and non-audit services to be provided by its principal independent auditors for up to twelvemonths from the date of the pre-approval. If there are any additional services to be provided, a request for pre-approval must be submitted by management to the Audit Committee for its consideration. In 2019 and 2020, the Audit Committee approved all services and fees of Marcum LLP identified in the above table in accordance with SEC requirements.
Exhibit Index
### Exhibit
Number
ExhibitName
31.1*
Certification of Principal Executive Officer pursuant to
31.2*
Certification of Principal Financial and Accounting Officer
(*)Filed herewith.<|endoftext|>Years:
or
Being subject of or party to any sanction or order, not subsequently reversed, suspended, or vacated, of any self-regulatory organization, any registered entity or any equivalent exchange, association, entity, or organization that has disciplinary authority over its members or persons associated with a member.
### Code of Ethics
We have not adopted a Code of Ethics, but we expect to adopt a Code of Ethics in fiscal 2018 and will post such code to our website.
Term of Office
Our directors are appointed to hold office until the next annual general meeting of our stockholders or until removed from office in accordance with our Bylaws. Our officers are appointed by the Board and hold office until removed by the Board, absent an employment agreement.
### Conflicts of Interest
Since we do not have an audit or compensation committee comprised of independent directors, the functions that would have been performed by such committees are performed by our directors. The Board has not established an audit committee and does not have an audit committee financial expert, nor has the Board established a nominating committee. The Board is of the opinion that such committees are not necessary since we are in the earlier stages of operations.
We have seven directors, and to date, such directors have been performing the functions of such committees.
### ITEM 11. EXECUTIVE COMPENSATION
Summary Compensation Table
### For the Fiscal Year ended December 31, 2019
Retirement Benefits
Compensation of Directors
ITEM 12.
The following table sets forth information known to us regarding the beneficial ownership of our common stock as of December 31, 2020 by (1) each stockholder who is known by us to beneficially own more than 5% of our common stock, (2) each of our directors, (3) each of our executive officers named in the Summary Compensation Table above, and (4) all of our directors and executive officers as a group.
(1) As used in this table, beneficial ownership means the sole or shared power to vote, or to direct the voting of, a security, or the sole or shared investment power with respect to a security (i.e., the power to dispose of, or to direct the disposition of, a security). In addition, for purposes of this table, a person is deemed, as of any date, to have beneficial ownership of any security that such person has the right to acquire within 60 days after such date.
(2) Consists of 6,778,210 shares held by Mr. Berry and 4,362,897 shares held in the name of Carlsbad Naturals, Inc.
There are no arrangements known to the Company, which may at a subsequent date result in a change-in-control.
None
ITEM 13.
Except as described below, during the past two fiscal years, there have been no transactions, whether directly or indirectly, between us and any of our respective officers, directors, beneficial owners of more than 5% of our outstanding Common Stock or their family members, that exceeded the lesser of $120,000 or 1% of the average of our total assets at year
- end for the last two completed fiscal years:
2.
The Company leases and pays for a certain business facility on behalf of Carlsbad Naturals, LLC, a related party in exchange for the Company using a lease that Carlsbad Naturals, LLC pays for on behalf of the Company, the Related Party Lease. As a result of this arrangement, the Company has recorded the lease and rental expense in the accompanying statement of operations. The Companys rent expense for the year ended December 31, 2019 was $69,296, and $74,451 for the year ended December 31, 2020 and is included in general and administrative expense on the accompanying statement of operations. Carlsbad Naturals, LLC is a stockholder of the Company. Another stockholder of New You Inc., Jared Berry, has controlling interest in Carlsbad Naturals, LLC.
4.
On January 9, 2019, we acquired one hundred percent (100%) of the outstanding membership interests in our current operating subsidiary, New You LLC, under a Share Exchange Agreement. Pursuant to the Share Exchange Agreement, we issued 15,974,558 shares of common stock to the former members of New You LLC. The members of New You LLC included our current CEO, Ray Grimm, Jr., and certain other affiliates of the Company.
5.
The Company purchases product from Carlsbad Naturals, LLC, which is owned by a stockholder of the Company. Drops, Drops For Pets, Energy FX, Sleep FX are manufactured by Carlsbad Naturals, LLC. The total amount of inventory purchased for the year ended December 31, 2020 was $183,929.
### Director Independence
Applying the definition of independence set forth in Rule 4200(a)(15) of The NASDAQ Stock Market, Inc., we do have any independent directors.
The Board currently does not have any separately designated standing committees.
### ITEM 14.
The following table sets forth the aggregate fees billed to us for the fiscal year ended December 31, 2020 by Marcum LLP:
ITEM 15.
(a)(1) Financial Statements
The following consolidated financial statements of New You, Inc. are included in Item 8.
None.
(a)(3) Exhibits
3.1
Articles of Incorporation, as Amended
*
3.2
Amended and Restated Bylaws*
10.1
Subscription and Securities Purchase Agreement*
10.2
Share Exchange Agreement*
10.3
Lease*
10.4
New You Brand Partner Agreement*
21.1
### List of Subsidiaries*
(1)
Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (1)
101.INS
XBRL Instance Document(1)
101.SCH
XBRL Taxonomy Extension Schema Document(1)
101.CAL
XBRL Taxonomy Extension Calculation Linkbase Document(1)
101.LAB
XBRL Taxonomy Extension Label Linkbase Document(1)
101.PRE
XBRL Taxonomy Extension Presentation Linkbase Document(1)
101.DEF
XBRL Taxonomy Extension Definition Linkbase Definition(1)
(1) Filed Herewith
* Incorporated by reference to Registration Statement on Form S-1 filed November 7, 2019.
ITEM 16.
FORM 10-K SUMMARY.
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. Audit committee members must also satisfy the additional independence criteria set forth in Rule10A-3under the Exchange Act and the rules of Nasdaq. Compensation committee members must also satisfy the additional independence criteria set forth in Rule10C-1under the Exchange Act and the rules of Nasdaq.
In order to be considered independent for purposes of Rule10A-3and under the rules of Nasdaq, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the committee, the board of directors, or any other board committee: (1)accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries; or (2)be an affiliated person of the listed company or any of its subsidiaries.
To be considered independent for purposes of Rule10C-1and under the rules of Nasdaq, the board of directors must affirmatively determine that the member of the compensation committee is independent, including a consideration of all factors specifically relevant to determining whether the director has a relationship to the company which is material to that directors ability to be independent from management in connection with the duties of a compensation committee member, including, but not limited to: (i)the source of compensation of such director, including any consulting, advisory or other compensatory fee paid by the company to such director; and (ii)whether such director is affiliated with the company, a subsidiary of the company or an affiliate of a subsidiary of the company.
We have undertaken a review of the independence of each director and considered whether each director has a material relationship with us that could compromise his or her ability to exercise independent judgment in carrying out his or her responsibilities. As a result of this review, we determined that each of Eric Benhamou, Lloyd Carney, Marina Levinson, Michael Southworth, and Shuo Zhang will be considered independent directors as defined under the applicable rules and regulations of the SEC and the listing requirements and rules of Nasdaq.
### Item 14.
Fees Paid to the Independent Registered Public Accounting Firm
WithumSmith+Brown, PC (Withum) served as the independent registered public accounting firm for ChaSerg, the legal predecessor of the Company, and its subsidiaries for the period from May21, 2018 (inception) through the year ended December31, 2019, and the subsequent interim period until March13, 2020. On March13, 2020, our audit committee approved the change in the Companys independent registered public accounting firm, effective March13, 2020, to Grant Thornton LLP.
The following table sets forth the approximate aggregate fees billed to the Company by Grant Thornton LLP in 2020 (in thousands):
(1)
Audit Fees consist of fees for professional services provided in connection with the audit of our annual consolidated financial statements, review of our quarterly consolidated financial statements and audit services provided in connection with other statutory and regulatory filings.
(2)
Audit-Related Fees" are aggregate fees billed by Grant Thornton LLP for assurance and related services that are reasonably related to the performance of the audit or review of our financial statements and are not reported under Audit Fees. These services include consultations and audits related to mergers and acquisitions; and services related to offering of common stock and consents for registration statements.
Our audit committee has concluded that the provision of the non-audit services listed above was compatible with maintaining the independence of Grant Thornton LLP.
The following is a summary of fees paid to Withum in 2019, for services rendered to ChaSerg, the legal predecessor of the Company.
### Audit Fees
Audit fees consist of fees for professional services rendered for the audit of ChaSergs year-endfinancial statements and services that are normally provided by Withum in connection with regulatory filings. The aggregate fees billed by Withum for professional services rendered for the audit of ChaSergs annual financial statements, review of the financial information included in ChaSergs Forms 10-Qfor the respective periods and other required filings with the SEC for the year ended December31, 2019 totaled $46,000.
Audit-Related Fees
Audit-relatedfees consist of fees billed for assurance and related services that are reasonably related to performance of the audit or review of our financial statements and are not reported under Audit Fees. During the year ended December31, 2019 ChaSerg did not pay Withum any audit-relatedfees.
### Tax Fees
For the year ended December31, 2019, ChaSerg paid Withum $4,500 for tax return services, planning and tax advice.
All Other Fees
ChaSerg did not pay Withum for any other services for the year ended December31, 2019.
Audit Committee Policy on Pre-Approval of Audit and Permissible Non-Audit Services of Independent Registered Public Accounting Firm
Under the policy, our audit committee is required to pre-approveall audit and permissible non-auditservices performed by our independent registered public accounting firm and audit engagement fees and terms in order to ensure that the provision of such services does not impair such accounting firms independence.
PART IV.
Item 15.
(a) The following documents are filed as part of, or incorporated by reference into, this Amendmenton Form 10-K/A:
1.
### Financial Statements
: No financial statements are filed with this Amendment on Form 10-K/A.
2.
: No financial statement schedules are filed with this Amendment on Form 10-K/A.
(b) The following exhibits are filed as part of, or incorporated by reference into, this Amendmenton Form 10-K/A:
### Item 16. Form 10-K Summary
None.<|endoftext|>Certain Terms
Unless otherwise stated in this Annual Report or the context otherwise requires, references to: amended and restated memorandum and articles of association are to the amended and restated memorandum and articles of association that the Company adopted prior to the consummation of the Initial Public Offering;
directors are to our directors; forward purchase agreement is to the agreement providing for the sale of forward purchase units to the forward purchase investors in a private placement that will close substantially concurrently with the closing of our initial business combination, subject to approval at such time by the MidOcean investment committee; forward purchase investors are Empower Funding and any assignees of Empower Funding under Empower Fundings forward purchase agreement; forward purchase securities are to the forward purchase shares and forward purchase warrants; forward purchase shares are to the ClassA ordinary shares included in the forward purchase units; forward purchase units are to the units to be issued to the forward purchase investors pursuant to the forward purchase agreement; forward purchase warrants are to the warrants to purchase our ClassA ordinary shares included in the forward purchase units;
Founders are to Matthew Rubel and Graham Clempson; founder shares are to our ClassB ordinary shares initially issued to our sponsor in a private placement prior to the Initial Public Offering and the ClassA ordinary shares that will be issued upon the automatic conversion of the ClassB ordinary shares at the time of our initial business combination or earlier at the option of the holders thereof (for the avoidance of doubt, such ClassA ordinary shares will not be public shares);
MidOcean are to MidOcean Partners, an affiliate of our sponsor; private placement warrants are to the warrants issued to our sponsor in a private placement simultaneously with the closing of the Initial Public Offering and upon conversion of working capital loans, if any; public shares are to our ClassA ordinary shares sold as part of the units the Initial Public Offering (whether they are purchased in the Initial Public Offering or thereafter in the open market); sponsor are to Empower Sponsor Holdings LLC, a Delaware limited liability company; and we, us, our, company or our company are to Empower Ltd., a Cayman Islands exempted company.
Any forfeiture of shares described in this Annual Report will take effect as a surrender of shares for no consideration of such shares as a matter of Cayman Islands law. Any conversion of the ClassB ordinary shares described in this Annual Report will take effect as a compulsory redemption of ClassB ordinary shares and an issuance of ClassA ordinary shares as a matter of Cayman Islands law. Any share dividends described in this Annual Report will take effect as share capitalizations as a matter of Cayman Islands law.
ii
### EXPLANATORY NOTE
Empower Ltd.
10-K/A
10-K for the year ended December31, 2020, originally filed with the Securities and Exchange Commission, or the SEC, on March8, 2021, or the Original Filing, to restate our financial statements as of and for the year ended December31, 2020. We are also restating the financial statement as of October9, 2020 in the accompanying financial statements included in this Annual Report (collectively, the Original Financial Statements).
The restatement primarily relates to consideration of the factors in determining whether to classify contracts that may be settled in an entitys own stock as equity of the entity or as an asset or liability in accordance with Accounting Standards Codification (ASC)
815-40,
In the Original Financial Statements, the Company classified the public warrants and private placement warrants issued in connection with the Companys initial public offering (the Warrants) and the forward purchase agreement as equity instruments. Upon further consideration of the rules and recent SEC guidance, management of the Company concluded that the Warrants and the forward purchase agreement are precluded from equity classification. As a result, the Warrants and the forward purchase agreement should be recorded as liabilities on the balance sheet and measured at fair value at inception and on a recurring basis in accordance with ASC 820,
As a result, on May 17, 2021, after consultation with Marcum LLP, the Companys independent registered public accounting firm, the Companys audit committee concluded that the Original Financial Statements should no longer be relied upon and are to be restated in order to correct the classification error.
The Companys accounting for the Warrants and the forward purchase agreement as components of equity instead of as derivative liabilities did not have any effect on the Companys previously reported investments held in trust, cash flows or cash.
8-K filed on October16, 2020 for the period affected by the restatement.
12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by the Companys principal executive officer and principal financial officer are filed as exhibits (in Exhibits 31.1 and 32.1) to this Amendment under Item 15 of Part IV hereof.
### Restatement Background
For a discussion of managements consideration of the Companys disclosure controls and procedures, internal controls over financial reporting, and the material weaknesses identified, see Part II, Item 9A, Controls and Procedures of this Annual Report.
### Items Amended InThis Amendment
For the convenience of the reader, this Annual Report Form
10-K/A sets forth the Original Filing in its entirety, as amended to reflect the restatement. No attempt has been made in this Form
10-K/A to update other disclosures presented in the Original Filing, except as required to reflect the effects of the restatement.
### Part I Item 1A. Risk Factors.
Part II Item 7.
Part II Item 8.
Part II Item 9A. Controls and Procedures.
Part IV Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
### EXPLANATORY NOTE
ACON S2 Acquisition Corp. 1 on Form 10-K/A (the Amendment) to amend and restate certain items in its Annual Report on Form 10-K as of December 31, 2020 for the period from July 21, 2020 (inception) through December 31, 2020, originally filed with the U.S. Securities and Exchange Commission (the SEC) on March 31, 2021 (the Original 10-K).
Background of Restatement
On May 24, 2021, , the Companys management and the audit committee of the Companys Board of Directors (the Audit Committee) concluded that it is appropriate to restate (i) certain items on the Companys previously issued audited balance sheet dated as of September 21, 2020, which were included in the Company's Current Report on Form 8-K filed with the SEC on September 21, 2020 (the IPO Closing 8-K), (ii) the Company's previously issued unaudited financial statements as of September 30, 2020 and for the period from July 21, 2020 (inception) to September 30, 2020, which were included in the Company's Quarterly Report on Form 10-Q for such period filed with the SEC on November 06, 2020 (the Quarterly Report), and (iii) the Companys previously issued audited financial statements as of December 31, 2020 and for the period from July 21, 2020 (inception) December 31, 2020, which were included in the Original 10-K. Considering such restatement, the Company concluded that such financial statements should no longer be relied upon. This Amendment includes the restated financial statements for the relevant periods.
The restatement primarily related to consideration of the factors in determining whether to classify contracts that may be settled in an entitys own stock as equity of the entity or as an asset or liability. Specifically, the SEC Statement focused on certain settlement terms and provisions related to certain tender offers following a business combination, which terms are similar to those contained in the warrant agreement governing the Companys warrants. As a result of the SEC Statement, the Company reevaluated the accounting treatment of (i) the 8,333,333 redeemable warrants (the Public Warrants) that were included in the units issued by the Company in its initial public offering (the IPO) and (ii) the 4,666,667 redeemable warrants that were issued to the Companys sponsor in a private placement that closed concurrently with the closing of the IPO (together with the Public Warrants, the Warrants). The Company previously accounted for the Warrants as components of equity.
In further consideration of the guidance in Accounting Standards Codification (ASC) 815-40,
Derivatives and Hedging Contracts in Entitys Own Equity
, the Company concluded that a provision in the warrant agreement related to certain tender or exchange offers precludes the Warrants from being accounted for as components of equity. As the Warrants meet the definition of a derivative as contemplated in ASC 815, the Warrants should be recorded as derivative liabilities on the balance sheet and measured at fair value at inception (on the date of the IPO) and at each reporting date in accordance with ASC 820,
### Fair Value Measurement
, with changes in fair value recognized in the statement of operations in the period of change.
Effects of Restatement
As a result of the factors described above, the Company has included in this Amendment: (i)certain restated items on the previously issued balance sheet dated as of September 21, 2020, the date that the IPO closed, that were previously reported in the IPO Closing 8-K, (ii) restated financial statements as of September 30, 2020 and for the period from July 21, 2020 (inception) to September 30, 2020, that were previously reported in the Quarterly Report and (iii)restated financial statements as of December 31, 2020 and for the period from July 21, 2020 (inception) through December 31, 2020 that were previously reported in the Original 10-K, to restate the following non-cash items: understatement of liabilities and overstatement of temporary equity by approximately $19.5 million, $19.5 million and $21.4 million as of September 21, 2020, September 30, 2020 and December 31, 2020, respectively; understatement of additional paid-in capital and accumulated deficit by approximately $0.7million, $0.7 million and $2.6 million as of September 21, 2020, September 30, 2020 and December 31, 2020, respectively; understatement of net loss by approximately $0.7 million and $2.6 million for the period from July 21, 2020 (inception) through September 30, 2020 and July 21, 2020 (inception) through December 31, 2020, respectively; and understatement of basic and diluted net loss per share, non-redeemable ordinary shares of $0.11 and $0.30 for the period from July 21, 2020 (inception) through September 30, 2020 and July 21, 2020 (inception) through December 31, 2020, respectively.
The restatement of the financial statements had no impact on the Companys liquidity or cash position.
See Note 2 to the Notes to Financial Statements included in Part II, Item 8 of this Amendment for additional information on the restatements and the related financial statement effects.
### Internal Control Considerations
In connection therewith, the Companys management identified a material weakness in its internal control over financial reporting. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of the financial statements will not be prevented or detected and corrected on a timely basis. For a discussion of managements consideration of the material weakness identified, see Item 9A. Controls and Procedures included in this Amendment.
Items Amended
The following items are amended in this Amendment: (i) Part I, Item 1A. Risk Factors; (ii) Part II, Item 7. (iii) Part II, Item 8. Financial Statements and Supplementary Data; (iv) Part II, Item 9A. Controls and Procedures; and (v) Part IV, Item 15.<|endoftext|>Each person known by us to be beneficial owner of more than 5% of our outstanding shares of common stock;
In the table below, percentage ownership is based on 27,500,000 shares of Class A common stock, which includes shares of ClassA common stock underlying the units sold in our initial public offering, and 6,875,000 shares of ClassB common stock outstanding as of March 5, 2021. Voting power represents the combined voting power of shares of ClassA common stock and ClassB common stock owned beneficially by such person. On all matters to be voted upon, the holders of the shares of Class A common stock and the ClassB common stock vote together as a single class. Currently, all of the shares of ClassB common stock are convertible into shares pf ClassA common stock on a one-for-one basis.
* less than 1%.
(1) Unless otherwise noted, the business address of each of the following entities or individuals is c/o Experience Investment Corp., 100 St.Paul St., Suite800, Denver, CO 80206 .
(2) Interests shown consist solely of founder shares, classified as shares of ClassB common stock. Such shares are convertible into shares of ClassA common stock on a one-for-one basis, subject to adjustment, as described in the Companys prospectus filed on September 13, 2019, in the section entitled Description of Securities.
(3) Our sponsor is the record holder of the ClassB common stock reported herein. Our sponsor is 100% owned by Steele ExpCo Holdings,LLC, which is held in turn 28.13% by KSL Capital Partners V,L.P. 26.62% by KSL Capital Partners V-A,L.P., 24.81% by KSL Capital Partners V TE,L.P., 18.67% by KSL Capital Partners V TE-A,L.P. and 1.77% by KSL Capital Partners V FF,L.P., each a Delaware limited partnership. The general partner of each of these entities is KSL Capital Partners VGP,LLC, a Delaware limited liability company. Eric C. Resnick is the managing member of KSL Capital Partners VGP,LLC. Mr.Resnick disclaims beneficial ownership of these shares except to the extent of his individual pecuniary interest in such shares, directly or indirectly. The address for each entity is c/o KSL Capital Partners, 100 St.Paul Street, Suite800, Denver, Colorado 80206.
(4) According to a Schedule 13G filed with the SEC on February 8, 2021, FMR LLC, a Delaware limited liability company has the sole voting and dispositive power over 1,788,503 shares of Class A common stock reported. The business address for each reporting person is 245 Summer Street, Boston, Massachusetts 02210.
(5) According to a Schedule 13G filed with the SEC on February 12, 2021, HG Vora Capital Management, LLC, a Delaware limited liability company, has the sole voting and dispositive power over the 2,000,000 shares of Class A common stock reported. The business address for the reporting person is 330 Madison Avenue, 20 th
### Floor, New York, New York 10017.
None
### Changes in Control
None.
Item 13.
In May 2019, our sponsor purchased 7,187,500 founder shares for an aggregate purchase price of $25,000. On September 17, 2019, the underwriters in our initial public offering partially exercised their over-allotment option for 2,500,000 of the total possible 3,750,000 additional units. Because the underwriters exercised the over-allotment option in part, our sponsor forfeited 312,500 founder shares.
In September 2019, our sponsor purchased an aggregate of 5,000,000 warrants at a price of$1.50 per warrant for an aggregate purchase price of $7,500,000 in a private placement closed simultaneously with the closing of our initial public offering. Each private placement warrant entitles the holder upon exercise to purchase one share of Class A common stock at a price of $11.50 per share, subject to adjustment. The private placement warrants (including the shares of Class A common stock issuable upon exercise of the private placement warrants) may not, subject to certain limited exceptions, be transferred, assigned or sold by it until 30 days after the completion of our initial business combination.
If any of our officers or directors becomes aware of a business combination opportunity that falls within the line of business of any entity to which he or she has then-current fiduciary or contractual obligations, he or she may be required to present such business combination opportunity to such entity prior to presenting such business combination opportunity to us, subject to his or her fiduciary duties under Delaware law.
Prior to the consummation of our initial public offering, our sponsor loaned us an aggregate of $231,366 to us under an unsecured promissory note, which were used for a portion of the expenses of our initial public offering.
We have entered into a registration rights agreement with respect to the private placement warrants, the warrants issuable upon conversion of working capital loans (if any) and the shares of ClassA common stock issuable upon exercise of the foregoing and upon conversion of the founder shares.
### Item 14
### Audit Fees
The aggregate fees billed by Marcum for professional services rendered for the audit of our annual consolidated financial statements, review of the financial information included in our Forms 10-Q for the respective periods and other required filings with the SEC for the year ended December 31, 2020 and for the period from May24, 2019 (inception) through December 31, 2019 totaled $50,985 and $45,320, respectively.
Audit-Related Fees.
We did not pay Marcum for consultations concerning financial accounting and reporting standards for the year ended December 31, 2020 and for the period from May24, 2019 (inception) through December 31, 2019.
### Tax Fees
We did not pay Marcum for tax planning and tax advice for the year ended December 31, 2020 and for the period from May24, 2019 (inception) through December 31, 2019.
All Other Fees
We did not pay Marcum for other services for the year ended December 31, 2020 and for the period from May24, 2019 (inception) through December 31, 2019.
### Pre-Approval Policy
Item 15
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Accepted accounting principles that achieve certain specified controls over the records of business transactions.
Because of its inherent limitations, internal control over financial reporting only provides reasonable assurance with respect to financial statement presentation and preparation.
Management assessed the effectiveness of our internal control over financial reporting as of December 31, 2020. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal ControlIntegrated Framework (2013). Based on its assessments, management believes that, as of December 31, 2020, our internal control over financial reporting is effective.
We are not required to provide an attestation report of our registered public accounting firm pursuant to rules promulgated by the SEC.
During the fiscal year ended December 31, 2020, no changes occurred that our management believes have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
### PART II
Item 9B
I
### TEM9B. OTHER INFORMATION
None.
Envela Corporation
We have audited the accompanying consolidated balance sheets of Envela Corporation (the Company) as of December 31, 2020 and 2019, and the related consolidated statements of operations, stockholders equity, and cash flows for the years then ended, and the related notes (collectively referred to as the financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of their operations and their cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
### Basis for Opinion
As part of our audits we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the entitys internal control over financial reporting.
### PART II
Item 9B
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved especially challenging, subjective, or complex judgments. The communication of the critical audit matter does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Assessment of Realizability of Deferred Tax Assets
As discussed in Note 15 to the financial statements, the Company records a valuation allowance based on their assessment of the realizability of the Companys deferred tax assets. As of December 31, 2020, the Company had net deferred tax assets, before valuation allowance, of approximately $6.4 million. A significant portion of the deferred tax assets are subject to future expiration and management uses subjective estimations to determine whether sufficient future taxable income will be generated to support the realization of the existing deferred tax assets before expiration.
Auditing managements assessment of recoverability of deferred tax assets for U. S Federal income tax purposes involved a high degree of auditor judgment in evaluating the estimates and assumptions used in the projections of future taxable income.
We obtained an understanding of internal controls that address the risks of material misstatement relating to the realizability of deferred tax assets, including controls over managements projections of future taxable income.
The primary procedures performed included evaluating the assumptions used by the Company to develop projections of future taxable income and testing the completeness and accuracy of the underlying data used in the projections. For example, we compared the support for future taxable income with prior period results and managements projections. We also compared the projections of future taxable income with other forecasted financial information prepared by the Company. In addition, we evaluated the impact on taxable income of temporary differences including the expected timing of when these temporary differences would be realized.
/s/ Whitley Penn LLP
We have served as the Companys auditor since 2012.
### Dallas, Texas
March 23, 2021
PART III
Item 10, 11, 12, 13, 14
P
ART III
I
TEM10.
I
### TEM11. EXECUTIVE COMPENSATION
I
TEM12.
I
TEM13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTORINDEPENDENCE
I
### TEM14.
PART IV
Items 15
P
ART IV
I
### TEM15.
Note: All financial statement schedules have been omitted, since the required information is not applicable or is not present in amounts sufficient to require submission of the schedule, or because the information required is included in the consolidated financial statements and notes thereto. The information required by this Item pursuant to Item 601 of Regulation S-K is set forth on the financial statement index and exhibit index that follows the signature page of this report.
Index to Exhibits
### PART IV
Item 15
PART IV
Item 15
### PART IV
Item 15
I
### TEM16. FORM 10-K SUMMARY
None.
S
IGNATURES
### ENVELA CORPORATION
By:
/s/
### Bret A. Pedersen
Dated: March 23, 2021
Bret A. Pedersen
### Chief Financial Officer
By:
/s/
### Joel S. Friedman
Dated: March 23, 2021
Joel S. Friedman
### Director
By:
/s/
### Alexandra C. Griffin
Dated: March 23, 2021
Alexandra C. Griffin
### Director
By:
/s/
### Jim R. Ruth
Dated: March 23, 2021
Jim R. Ruth
### Director
By:
/s/
### Allison M. DeStefano
Dated: March 23, 2021
Allison M. DeStefano
Director<|endoftext|>As those that might be achieved with an unaffiliated third party; the size of the transaction and the amount of consideration payable to the related person; the nature of the interest of the related person; whether the transaction may involve a conflict of interest as defined in the Companys Code of Ethics and Business Conduct; and whether the transaction involves the provision of goods and services to the Company that are available and from unaffiliated third parties.
For each periodic review of related persons transactions, the Audit Committee will determine if the transactions were fair, reasonable, and within Company policy and will recommend to the disinterested members of the Board of Directors that they should be ratified and approved or make such other recommendation to the Board of Directors as the Audit Committee deems appropriate. If any transaction recommended for ratification and approval by the Audit Committee is not ratified and approved by the Board of Directors, the Secretary of the Audit Committee will provide a report to the Audit Committee setting forth information about the Boards actions.
### Item 14.
Set forth below is certain information concerning aggregate fees for professional services rendered by S.R. Snodgrass, P.C. (Snodgrass) during fiscalyears 2020 and 2019.
Audit Fees.
The aggregate fees billed to the Company by Snodgrass for professional services rendered for the audit of the Companys annual consolidated financial statements, review of the consolidated financial statements included in the Companys annual report on Form 10-K and services that are normally provided by Snodgrass in connection with statutory and regulatory filings and engagements were $109,249 and $137,885 during fiscal 2020 and 2019, respectively.
### Audit Related Fees.
The aggregate fees billed to the Company by Snodgrass for assurance and related services rendered that are reasonably related to the performance of the audit of and review of the consolidated financial statements and that are not already reported in Audit Fees above, were $16,508 and $16,375 during fiscal 2020 and 2019, respectively. These services were primarily related to the audits of the Companys employee benefit plans.
Tax Fees.
The aggregate fees billed to the Company by Snodgrass for professional services rendered for tax compliance were $14,950 and $14,710 during fiscal 2020 and 2019, respectively.
### Other Fees.
There were no aggregate fees billed to the Company by Snodgrass for other professional services rendered during fiscal 2020 and 2019, respectively.
Policy on Audit Committee Pre-Approval of Audit and Non-Audit Services of Independent Registered Public Accountants
The Audit Committees policy is to pre-approve all audit and non-audit services provided by the independent registered public accountants. Pre-approval is provided for up to one year, and any pre-approval is detailed as to the particular service or category of services and is subject to a specific budget. The Audit Committee has delegated pre-approval authority to its Chair when necessary, with subsequent reporting to the Audit Committee. The independent registered public accountants and management are required to report to the Audit Committee quarterly regarding the extent of services provided by the independent registered public accountants in accordance with this pre-approval policy, and the fees for the services performed to date.
PARTIV
ITEM15.
(a)(3)
Exhibits
2.1
Agreement and Plan of Merger, dated September 24, 2020, by and among Standard AVB Financial Corp., Dollar Mutual Bancorp, and Dollar Acquisition Sub, Inc.*
3.1
Articles of Incorporation of Standard AVB Financial Corp., as amended
*
3.2
Amended and Restated Bylaws of Standard AVB Financial Corp., as amended
*
4.1
Form of Common Stock Certificate of Standard AVB Financial Corp
*
4.6
Description of Standard AVB Financial Corp.s Securities
*
10.1
Employment Agreement by and between Timothy K.
*
10.2
Employment Agreement by and between Andrew W.
*
10.3
Employment Agreement by and between Susan A.
*
10.4
2012 Equity Incentive Plan
*
10.5
Supplemental Executive Retirement Agreement by and between Standard Bank and Andrew W. Hasley
*
10.6
Supplemental Executive Retirement Agreement by and between Standard Bank and Timothy K. Zimmerman
*
10.7
Form of Change in Control Agreement for Certain executive offers
*
10.8
Amendment to Employment Agreement by and between Timothy K. and Standard Bank, PaSB
*
10.9
Amendment to Employment Agreement by and between Andrew W. and Standard Bank, PaSB
*
10.10
Amendment to Supplemental Executive Retirement Agreement by and between Standard Bank and Andrew W. Hasley
*
10.11
Amendment to Supplemental Executive Retirement Agreement by and between Standard Bank and Timothy K. Zimmerman
*
10.12
Offer Letter and Cancellation Agreement, dated September 24, 2020, by and among Andrew W. and Standard Bank PaSB
*
10.13
Offer Letter and Cancellation Agreement, dated September 24, 2020, by and among Timothy K. and Standard Bank, PaSB
*
10.14
Offer Letter and Cancellation Agreement, dated September 24, 2020, by and among Susan A. and Standard Bank, PaSB
*
Subsidiaries of Registrant
*
31.1
31.2
Certification of Chief Financial Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended, as adopted pursuant to Section 302 of the Sarbanes- Oxley Act of 2002
Written Statement of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
101.INS iXBRL Instance Document*
101.SCH iXBRL Taxonomy Extension Schema Document*
101.CAL iXBRL Taxonomy Calculation Linkbase Document*
101.DEF iXBRL Taxonomy Extension Definition Linkbase Document*
101.LAB iXBRL Taxonomy Label Linkbase Document*
101.PRE iXBRL Taxonomy Presentation Linkbase Document*
*
Previously included with the Companys Annual Report on Form 10-K, as filed with the Securities and Exchange Commission on March 31, 2021.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
By reference to Exhibit 10.4 to the Companys Current Report on
Form8-K, dated August15, 2000, filed by the Company with the Securities and Exchange Commission.)
10.6
Master Lease Agreement, dated June30, 2005, between Ventas Amberleigh, LLC and Capital Senior Management 2, Inc.
10.7
Schedule identifying substantially identical agreements to Exhibit 10.10 (Incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form
10.8
Master Lease Agreement, dated October18, 2005, between Ventas Georgetowne, LLC and Capital Senior Management2, Inc.
8-K, dated October18, 2005, filed by the Company with the Securities and Exchange Commission.)
10.9
Master Lease Agreement, dated May31, 2006, between subsidiaries of the Company and Healthpeak (Incorporated by reference to Exhibit10.1 to the Companys Current Report on Form
10.10
Lease, dated May31, 2006, between subsidiaries of the Company and Healthpeak regarding the Crosswood Oaks Facility in Citrus Heights, California (Incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form
10.11
Schedule identifying substantially identical agreements to Exhibit 10.12 (Incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form
10.12
Master Lease Agreement, dated as of September10, 2010, between Capital Texas S, LLC and the Landlord parties thereto
8-K filed with the Securities and Exchange Commission on September16, 2010.)
10.13
Employment Agreement dated December 23, 2019, by and between Capital Senior Living Corporation and Carey P. Hendrickson (Incorporated by reference to Exhibit 10.15 to the Companys Annual Report on Form
10-K filed by the Company with the Securities and Exchange Commission on March31, 2020.)
10.14
Form of Outside Directors Restricted Share Unit Award Under the 2007 Omnibus Stock and Incentive Plan for Capital Senior Living Corporation (Incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form
10-Q filed by the Company with the Securities and Exchange Commission on August5, 2015.)
10.15
Employment Agreement dated January 7, 2019, by and between Capital Senior Living Corporation and Kimberly S. Lody
### Exhibit
Number
Description
10.16
Nonqualified Stock Option Agreement dated January7, 2019, by and between Capital Senior Living Corporation and Kimberly S. Lody (Incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form
10.17
Performance Award Agreement dated January7, 2019, by and between Capital Senior Living Corporation and Kimberly S. Lody (Incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form
10.18
Restricted Stock Award Agreement dated January7, 2019, by and between Capital Senior Living Corporation and Kimberly S. Lody (Incorporated by reference to Exhibit 10.4 to the Companys Current Report on Form
10.19
Employment Agreement, dated February20, 2019, by and between Capital Senior Living, Inc. and Michael C. Fryar (Incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form
10-Q for the quarterly period ended June30, 2019, filed by the Company with the Securities and Exchange Commission.)
10.20
Employment Agreement, dated as of September10, 2019, by and between Capital Senior Living Corporation and Brandon M. Ribar.
10.21
### Sign-On
Performance Award Agreement, dated as of September10, 2019, by and between Capital Senior Living Corporation and Brandon M. Ribar. (Incorporated by reference to Exhibit 10.2 to the Companys Current Report on
Form
10.22
### Sign-On
Restricted Stock Award Agreement, dated as of September10, 2019, by and between Capital Senior Living Corporation and Brandon M. Ribar. (Incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form
10.23
Amended and Restated Forbearance Agreement, dated April3, 2020 to be effective as of February1, 2020, by and between Capital Senior Management 2, Inc. and Capital Senior Living Properties, Inc., each a wholly owned subsidiary of Capital Senior Living Corporation, and Ventas Realty, Limited Partnership and certain of its affiliated entities (Incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form
10.24
Forbearance Agreement, dated March15, 2020 to be effective as of February1, 2020, by and between Capital Midwest, LLC, Capital TexasS, LLC, Capital Spring Meadows, LLC and Capital Senior Living Properties, Inc., each a wholly owned subsidiary of Capital Senior Living Corporation, and certain entities affiliated with Welltower Inc. (Incorporated by reference to Exhibit 10.2 to the Companys Quarterly Report on Form
10.25
Form of MBO Incentive Plan and Executive Retention Award (Incorporated by reference to Exhibit 10.3 to the Companys Quarterly Report on Form
10.26
Employment Agreement, dated as of March26, 2021, by and between Capital Senior Living, Inc. and David R. Brickman#
10.27
Employment Agreement, dated as of December9, 2020, by and between Capital Senior Living, Inc. and Tiffany L. Dutton#
10.28
Employment Agreement, dated as of February18, 2020, by and between Capital Senior Living, Inc. and Jeremy D. Falke#
### Exhibit
Number
Description
21.1
Subsidiaries of the Company#
23.1
Consent of Ernst& Young LLP#
31.1
13a-14(a) or Rule
15d-14(a)#
31.2
13a-14(a) or Rule
15d-14(a)#
*31.3
13a-14(a) or Rule
15d-14(a).
*31.4
13a-14(a) or Rule
15d-14(a).
32.1
Certification of Kimberly S. Lody pursuant to Section906 of the Sarbanes-Oxley Act of 2002#
32.2
Certification of Tiffany L. Dutton pursuant to Section906 of the Sarbanes-Oxley Act of 2002#
101.INS
XBRL Instance Document#
101.SCH
XBRL Taxonomy Extension Schema Document#
101.CAL
XBRL Taxonomy Extension Calculation Linkbase Document#
101.LAB
XBRL Taxonomy Extension Label Linkbase Document#
101.PRE
XBRL Taxonomy Extension Presentation Linkbase Document#
101.DEF
XBRL Taxonomy Extension Definition Linkbase Document#
Cover page Interactive Data File (embedded as Inline XBRL)
*
Filed herewith.
#
Filed with Original Filing.<|endoftext|>### EXPLANATORY NOTE
Apollo Strategic Growth Capital (the
Company
, we
, our or us
) is filing this Annual Report on Form10-K/A (
### Amendment No.2
, the
### Amendment or this
Annual Report
), to amend our Amendment No.1 to the Annual Report on Form10-K/Afor the period ended December31, 2020, as filed with the Securities and Exchange Commission (the
SEC
) on June21, 2021 (the
### First Amended Filing
), to restate our financial statements for the period ended December31, 2020.
Restatement Background
The Company has followed Accounting Standards Codification Topic 480, Distinguishing Liabilities from Equity, (
### ASC 480
) in accounting for its redeemable ClassA ordinary shares, par value $0.00005 per share (the
Public Shares
). This included recording the Public Shares in permanent equity on its balance sheet. However, the Company maintained shareholders equity of at least $5,000,001 as the Company will not redeem Public Shares that would cause the Companys net tangible assets to be less than $5,000,001 following such redemptions.
In September2021, the Companys management re-evaluated and ultimately concluded that the classification of $5,000,001 in permanent equity was not appropriate and that the Public Shares should be reclassified as temporary equity. In connection with the preparation of the financial statements as of and for the three and ninemonths ended September30, 2021 that were included in the Companys Quarterly Report on Form10-Q, filed with the SEC on November10, 2021 (the
### Q3 Form10-Q
), the Company concluded that it would change its accounting and reflect the full amount of all redeemable Public Shares in temporary equity. This was a change from the Companys previous accounting practice whereby it maintained shareholders equity of at least $5,000,001 as the Company will not redeem Public Shares that would cause the Companys net tangible assets to be less than $5,000,001 following such redemptions. In connection with the change in presentation for the Public Shares subject to possible redemption, the Company also revised its earnings per share to allocate net income (loss) evenly to all Public Shares and ClassB ordinary shares.
On November23, 2021, the Companys management and the audit committee of the Companys board of directors (the
### Audit Committee
) concluded that the Companys previously issued (i)audited balance sheet as of October6, 2020, (the
Post-IPO Balance Sheet
) as previously restated in the First Amended Filing, (ii)audited financial statements included in the First Amended Filing, (iii)unaudited interim financial statements as of and for the threemonths ended March31, 2021 included in the Companys Quarterly Report on Form10-Q, filed with the SEC on June21, 2021, (iv)unaudited interim financial statements as of and for the three and sixmonths ended June30, 2021 included in the Companys Quarterly Report on Form10-Q, filed with the SEC on August13, 2021, and (v)unaudited interim financial statements as of and for the three and ninemonths ended September30, 2021 included in the Q3 Form10-Q (collectively, the
### Affected Periods
), in each case, should be restated to classify all of the Public Shares as temporary equity and should no longer be relied upon. As a result, the Company is restating its financial statements for the Affected Periods herein for the Post-IPO Balance Sheet and the Companys audited financial statements included in the First Amended Filing and in a Form10-Q/A for the unaudited condensed financial statements for the periods ended March31, 2021, June30, 2021 and September30, 2021.
The restatement does not have an impact on its cash position and cash held in the trust account (the
### Trust Account
)established in connection with the initial public offering (the
IPO
).
The Companys management has concluded that a material weakness had developed in the Companys internal control over financial reporting solely related to the accounting for complex financial instruments and that the Companys disclosure controls and procedures were not effective as a result.. The Companys remediation plan with respect to such material weakness is described in more detail in Item9A of PartII hereof.
The restatement is more fully described in Note2 of the notes to the financial statements included herein.
In addition, as required by Rule12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by the Companys principal executive officer and principal financial officer are filed as exhibits (in Exhibits 31.1, 31.2, 32.1 and 32.2) to this Amendment under Item15 of PartIV hereof.
Following the conclusion that the classification of $5,000,0001 in permanent equity was not appropriate and that the Public Shares should be reclassified as temporary equity, and in connection with the restatement, the Companys management has re-evaluated the effectiveness of the Companys disclosure controls and procedures and internal control over financial reporting as of December31, 2020. The Companys management has concluded that the Companys disclosure controls and procedures and internal control over financial reporting were not effective as of December31, 2020, due to the material weakness in internal controls over financial reporting solely related to the accounting for complex financial instruments.
The material weakness is more fully described in Item9A: Controls and Procedures, contained herein.
For the convenience of the reader, this Amendment sets forth the Annual Report on Form10-K of the Company as of and for the period ended December31, 2020, as filed with the SEC on March30, 2021 (the
Original Filing
), as amended by the First Amended Filing, and as amended to reflect the restatement in connection with the reclassification of the Public Shares as temporary equity. No attempt has been made in this Amendment to update other disclosures presented in the Original Filing or the First Amended Filing, except as required to reflect the effects of the restatement.
### PartI Item1A. Risk Factors
PartII Item7.
PartII Item9A. Controls and Procedures.
PartIV Item15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Unless otherwise stated in this annual report on Form 10-K (this annual report), references to:
Allegro, we, us, our, company, our company or similar phrases are to Allegro Merger Corp.;
Cantor are to Cantor Fitzgerald & Co., the representative of the underwriters of our initial public offering;
Chardan are to Chardan Capital Markets LLC, one of the underwriters of our initial public offering; common stock are to our shares of common stock, par value $0.0001 per share;
Exchange Act are to the Securities Exchange Act of 1934, as amended; initial stockholders are the holders of the private shares;
JOBS Act are to the Jumpstart Our Business Startups Act of 2012;
Merger Agreement are to the Agreement and Plan of Merger, dated as of November 8, 2019, by and among the Company, Allegro Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Allegro (Merger Sub), TGIF Holdings, LLC, a Delaware limited liability company (Holdings), TGIF Midco, Inc., a Delaware corporation and currently a subsidiary of Holdings (Midco and together with Holdings and their subsidiaries, TGI Fridays), and Rohit Manocha, solely in his capacity as the initial representative of the equityholders of Holdings and Midco. private placement shares are to the shares of common stock underlying the private placement units; private placement units are to the 372,500 units purchased by our initial stockholders, Cantor, and Chardan in the private placement that occurred simultaneously with the completion of our initial public offering, each private placement unit consisting of one share of common stock, one right, and one warrant; private placement warrants are to the warrants underlying the private placement units; private shares are to the 3,737,500 shares of our common stock sold by us to our initial stockholders prior to our initial public offering; public shares are to shares of our common stock sold as part of the units in our initial public offering, including shares purchased as a result of the exercise of the over-allotment option by the underwriters (whether they were purchased in our initial public offering or thereafter in the open market); public stockholders are to the holders of our public shares, including, without limitation, our initial stockholders, Cantor, Chardan and members of our management team to the extent that they have purchased public shares, provided that such holders status as a public stockholder shall exist only with respect to such public shares; rights are to our rights, each right exchangeable for one-tenth (1/10) of one share of common stock upon the completion of our initial business combination;
SEC are to the Securities and Exchange Commission;
Securities Act are to the Securities Act of 1933, as amended; units are to the 14,950,000 units sold in the initial public offering, including 1,950,000 units that were issued pursuant to the exercise in full of the underwriters over-allotment option, each unit consisting of one share of common stock, one right, and one warrant. warrants are to our redeemable warrants, each warrant entitling the holder to purchase one share of common stock at a price of $11.50 per share commencing 30 days after the completion of our initial business combination.
ii
### EXPLANATORY NOTE
Allegro Merger Corp. (the Company, we, our or us) is filing this Annual Report on Form10-K/A (Amendment No.1), or this Amendment, to amend our Annual Report on Form10-K for the period ended December31, 2020, originally filed with the Securities and Exchange Commission, or the SEC, on March31, 2021, or the Original Filing, to restate our consolidated financial statements for the year ended December31, 2020, December 31, 2019, and December 31, 2018. We are also restating the consolidated financial statement as of July 6, 2018 and the unaudited consolidated financial statements as of September 30, 2020, June 30, 2020, March 31, 2020, September 30, 2019, June 30, 2019, March 31, 2019, and September 30, 2018, in the accompanying consolidated financial statements included in this Annual Report (collectively, the Original Financial Statements).
Upon further consideration of the rulesand guidance, management of the Company concluded that the Warrants are precluded from equity classification. As a result, the Warrants should be recorded as liabilities on the balance sheets and measured at fair value at inception and on a recurring basis in accordance with ASC 820,
As a result, on May17, 2021, the Companys audit committee, in consultation with management, concluded that the Original Financial Statements should no longer be relied upon and are to be restated in order to correct the classification error.
The restatement is more fully described in Note 2 of the notes to the consolidated financial statements included herein.
In addition, as required by Rule12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by the Companys principal executive officer and principal financial officer are filed as exhibits to this Amendment under Item 15 of PartIV hereof.
iii
### Restatement Background
On April12, 2021, the Acting Director of the Division of Corporation Finance and Acting Chief Accountant of the SEC together issued a public statement (the Public Statement) on accounting and reporting considerations for warrants issued by special purpose acquisition companies (SPACs).
This Amendment reflects the correction of the errors identified in light of the Public Statement, subsequent to the filing of the Original Financial Statements (see Item 8 and Note 2 of the notes to the consolidated financial statements included herein for more details on the impact of the restatement errors on our financial statements).
For the convenience of the reader, this Annual Report Form10-K/A sets forth the Original Filing in its entirety, as amended to reflect the restatement. No attempt has been made in this Form10-K/A to update other disclosures presented in the Original Filing, except as required to reflect the effects of the restatement.
PartII Item 7.
PartII Item 8.
PartII Item 9A. Controls and Procedures.
PartIV Item 15.<|endoftext|>Agent, and Citibank, N.A., as documentation agent. Filed as Exhibit 10.1 to the Companys Current Report on Form 8-K dated April 19, 2019 and incorporated herein by reference.
10.4*
Form of 2007 Plan Restricted Stock Unit Agreement. Filed as Exhibit 10.11 to the Companys Annual Report on Form 10-K for the year ended December 31, 2015 and incorporated herein by reference.
10.5*
Form of 2007 Plan Restricted Stock Unit Agreement deferral of receipt of shares. Filed as Exhibit10.12 to the Companys Annual Report on Form 10-K for the year ended December 31, 2015 and incorporated herein by reference.
10.6*
Form of 2007 Plan Stock Option Agreement. Filed as Exhibit 10.13 to the Companys Annual Report on Form 10-K for the year ended December 31, 2015 and incorporated herein by reference.
10.7*
Form of 2007 Plan Trustee Stock Option Agreement. Filed as Exhibit 10.14 to the Companys Annual Report on Form 10-K for the year ended December 31, 2015 and incorporated herein by reference.
10.8*
Form of 2016 Plan Restricted Stock Unit Agreement deferral of receipt of shares. Filed as Exhibit 10.16 to the Companys Annual Report on Form 10-K for the year ended December 31, 2016 and incorporated herein by reference.
10.9*
Form of 2016 Plan Trustee Non-Qualified Stock Option Agreement. Filed as Exhibit 10.18 to the Companys Annual Report on Form 10-K for the year ended December 31, 2016 and incorporated herein by reference.
10.10
Form of Trustee and Officer Indemnification Agreement. Filed as Exhibit 10.19 to the Companys Annual Report on Form 10-K for the year ended December 31, 2016 and incorporated herein by reference.
10.11*
Public Storage 2007 Equity and Performance-Based Incentive Compensation Plan, as Amended. Filed with Registrants Current Report on Form 8-K dated May 1, 2014 and incorporated herein by reference.
10.12*
Public Storage 2016 Equity and Performance-Based Incentive Compensation Plan. Filed as Appendix A to the Companys 2016 Proxy Statement dated March 16, 2016 and incorporated herein by reference.
10.13
Note Purchase Agreement, dated as of November 3, 2015, by and among Public Storage and the signatories thereto. Filed with Registrants Current Report on Form 8-K dated November 3, 2015 and incorporated herein by reference.
10.14
Note Purchase Agreement, dated as of April 12, 2016, by and among Public Storage and the signatories thereto. Filed with Registrants Current Report on Form 8-K dated April 12, 2016 and incorporated herein by reference.
10.15
Indenture, dated as of September 18, 2017, between Public Storage and Wells Fargo Bank, National Association, as trustee. Filed as Exhibit 4.1 to the Companys Current Report on Form 8-K dated September 18, 2017 and incorporated herein by reference.
10.16
First Supplemental Indenture, dated as of September 18, 2017, between Public Storage and Wells Fargo Bank, National Association, as trustee, including the form of Global Note representing the 2022 Notes and the form of Global Note representing the 2027 Notes. Filed as Exhibit 4.2 to the Companys Current Report on Form 8-K dated September 18, 2017 and incorporated herein by reference.
10.17
Second Supplemental Indenture, dated as of April 12, 2019, between Public Storage and Wells Fargo Bank, National Association, as trustee, including the form of Global Note representing the 2029 Notes. Filed as Exhibit 4.2 to the Companys Current Report on Form 8-K dated April 12, 2019 and incorporated herein by reference.
10.18
Third Supplemental Indenture, dated as of January 24, 2020, between Public Storage and Wells Fargo Bank, National Association, as trustee. Filed as Exhibit 4.2 to the Companys Current Report on Form 8-K dated January 24, 2020 and incorporated herein by reference.
10.19
Fourth Supplemental Indenture, dated as of January 19, 2021, between Public Storage and Wells Fargo Bank, National Association, as trustee. Filed as Exhibit 4.2 to the Companys Current Report on Form 8-K dated January 14, 2021 and incorporated herein by reference.
10.20
Amendment to Amended Filed as Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2018 (SEC File No. 001-33519) and incorporated herein by reference.
10.21*
Form of 2016 Plan Restricted Stock Unit Agreement deferral of receipt of shares (2018). Filed as Exhibit 10.26 to the Companys Annual Report on Form 10-K for the year ended December 31, 2018 and incorporated herein by reference.
10.22*
Form of 2016 Plan Trustee Deferred Stock Unit Agreement (2018). Filed as Exhibit 10.29 to the Companys Annual Report on Form 10-K for the year ended December 31, 2018 and incorporated herein by reference.
10.23*
Form of 2016 Plan Executive Restricted Stock Unit Agreement (2018). Filed as Exhibit 10.30 to the Companys Annual Report on Form 10-K for the year ended December 31, 2018 and incorporated herein by reference.
10.24*
Form of 2016 Employee Stock Unit Agreement (2020). Filed as Exhibit 10.2 to the Companys Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 and incorporated herein by reference.
10.25*
Form of 2016 Plan Employee Non-Qualified Stock Option Agreement (2020). Filed as Exhibit 10.4 to the Companys Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 and incorporated herein by reference.
10.26*
Form of 2016 Plan Performance-Based Non-Qualified Stock Option Agreement (2020). Filed as Exhibit 10.5 to the Companys Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 and incorporated herein by reference.
Listing of Subsidiaries. Filed herewith.
23.1
Consent of Ernst & Young LLP. Filed herewith.
31.1
Rule 13a 14(a) Certification. Filed herewith.
31.2
Rule 13a 14(a) Certification. Filed herewith.
Section 1350 Certifications. Filed herewith.
101 .INS
Inline XBRL Instance Document. Filed herewith.
101 .SCH
Filed herewith.
101 .CAL
Filed herewith.
101 .DEF
Filed herewith.
101 .LAB
Filed herewith.
101 .PRE
Inline XBRL Taxonomy Extension Presentation Link. Filed herewith.
_ (1)
SEC File No. 001-33519 unless otherwise indicated.
*
Denotes management compensatory plan agreement or arrangement.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Structuring, performing due diligence and negotiating the acquisition of Barnes.
The Audit Committee is responsible for reviewing and approving all related person transactions. In addition, the Board of Directors has a general practice of requiring directors interested in a transaction not to participate in deliberations or to vote upon transactions in which they have an interest, and to be sure that transactions with directors, executive officers and major stockholders are on terms that align the interests of the parties to such agreements with the interests of the stockholders.
These practices are undertaken pursuant to written policies and procedures contained in: (i) the Charter of the Audit Committee of the Companys Board of Directors, which vests the Audit Committee with the responsibility for the Companys compliance with legal and regulatory requirements; (ii) the Companys Amended and Restated Corporate Governance Guidelines, which vests in the Board and its committees the specific function of ensuring processes are in place for maintaining the integrity of compliance with law and ethics, and requiring that directors recuse themselves from any discussion or decision affecting their personal, business or professional interests; and (iii) the Companys Code of Business Conduct and Ethics, which requires compliance with applicable laws and regulations, the avoidance of conflicts of interest, and prohibits the taking of corporate opportunities for personal benefit. In addition, as a Delaware corporation, we are subject to Section 144 of the DGCL, which provides, among other things, that related party transactions involving the Company and our directors or officers need to be approved by a majority of disinterested directors or a duly authorized committee of the Board comprised of disinterested directors after disclosure of the material facts relating to the interested transaction in question.
### Director Independence
The Board of Directors has evaluated each of its directors independence from Clarus based on the definition of independence established by NASDAQ and has determined that Messrs. Henning, Sokolow and House are independent directors, constituting a majority of the Board of Directors. The Board of Directors has also determined that each of the members of our Audit Committee is independent for purposes of Section 10A(m)(3) of the Securities Exchange Act of 1934, as amended (the Exchange Act).
In its review of each directors independence from the Company, the Board of Directors reviewed whether any transactions or relationships currently exist or existed during the past year between each director and the Company and its subsidiaries, affiliates, equity investors or independent registered public accounting firm. The Board of Directors also examined whether there were any transactions or relationships between each director and members of the senior management of the Company or their affiliates.
ITEM 14.
Aggregate fees for professional services rendered for Clarus by Deloitte & Touche LLP for the fiscal years ended December 31, 2020 and 2019 were as follows:
Audit Fees.
Deloitte & Touche LLP was engaged as our independent registered public accounting firms to audit our financial statements for the years ended December 31, 2020 and 2019, to audit our internal control over financial reporting as of December 31, 2020 and 2019, and to perform services in connection with our registration statements.
### Audit Related Fees.
The amounts Deloitte & Touche LLP billed us for professional services rendered for audit related fees were $71,755 and $0, respectively for the fiscal years ended December 31, 2020 and 2019.
Tax Fees.
The amounts Deloitte & Touche LLP billed us for professional services rendered for compliance, tax advice or tax planning were $21,461 and $28,167, respectively for the fiscal years ended December 31, 2020 and 2019.
### All Other Fees.
There were no other fees for the fiscal years ended December 31, 2020 and 2019.
Auditor Independence.
The Audit Committee has considered the non-audit services provided by Deloitte & Touche LLP determined that the provision of such services had no effect on Deloitte & Touche LLPs independence from Clarus.
Audit Committee Pre-Approval Policy and Procedures.
The Audit Committee must review and pre-approve all audit and non-audit services provided by Deloitte & Touche LLP, our independent registered public accounting firm, and has adopted a Pre-Approval Policy. In conducting reviews of audit and non-audit services, the Audit Committee will determine whether the provision of such services would impair the auditors independence. The term of any pre-approval is twelve months from the date of pre-approval, unless the Audit Committee specifically provides for a different period. Any proposed services exceeding pre-approved fee ranges or limits must be specifically pre-approved by the Audit Committee.
Requests or applications to provide services that require pre-approval by the Audit Committee must be accompanied by a statement of the independent auditors as to whether, in the auditors view, the request or application is consistent with the SECs and the Public Company Accounting Oversight Boards rules on auditor independence. Each pre-approval request or application must also be accompanied by documentation regarding the specific services to be provided.
Since the engagement of Deloitte & Touche LLP by the Company on June 11, 2018, the Audit Committee has not waived the pre-approval requirement for any services rendered by Deloitte & Touche LLP to Clarus. All of the services provided by Deloitte & Touche LLP to Clarus described above were pre-approved by the Audit Committee.
PART IV
ITEM 15.
Financial Statements, Financial Statement Schedules and Exhibits
(a)(1) The Financial Statements. The Financial Statements of the Company are included in Item 8 of the Original Filing.
No schedules are included because the required information is inapplicable, not required or are presented in the financial statements or the related notes thereto.
(a)(3) The following Exhibits are hereby filed as part of this Amendment:<|endoftext|>The SEC on January 19, 2018).*
10.16
Form of Restricted Stock Agreement for Employment Inducement Incentive Award Plan (incorporated by reference to Exhibit 10.2 to Form 8-K filed with the SEC on January 19, 2018).*
10.17
Contract between Eni S.p.A. and the Company dated March 14, 2018 (incorporated by reference to Exhibit 10.1 to Form 8-K filed with the SEC on March 19, 2018). +
10.18
Contract between Harbour Energby UK Limited and the Company dated June 27, 2018 (incorporated by reference to Exhibit 10.27 to Form 10-K filed with the SEC on July 17, 2018).+
10.19
Amendment to the Employment Agreement of George H. Kirby III (incorporated by reference to Exhibit 10.2 to Form 8-K filed with the SEC on July 18, 2018). *
10.20
Contract between U.S. Navy and the Company dated February 11, 2019 (incorporated by reference to Exhibit 10.2 to Form 10-Q filed with the SEC on March 11, 2019).
10.21
Form of Warrant Agency Agreement by and between the Company collectively as warrant agent (incorporated by reference to Exhibit 4.7 to Amendment No.2 to the Companys Registration Statement on Form S-1 (file No. 333-230199, filed with the SEC on April 3, 2019).
10.22
Form of Common Warrant ((incorporated by reference to Exhibit 4.2 to Form 8-K filed with the SEC on April 5, 2019).
10.23
Form of Pre-Funded Warrant ((incorporated by reference to Exhibit 4.3 to Form 8-K filed with the SEC on April 5, 2019).
10.24
Warrant Agency Agreement between Ocean Power Technologies, Inc. dated April 8, 2019 (incorporated by reference to Exhibit 4.1 to Form 8-K filed with the SEC on April 8, 2019).
10.25
Contract amendment between Harbour Energy UK Limited and the Company dated June 24, 2019 (incorporated by reference to Exhibit 10.1 to Form 8-K filed with the SEC on June 25, 2019).+
10.26
Lease Agreement dated March 31, 2017 between Ocean Power Technologies, Inc. and PPH Industrial 28 Engelhard, LLC (incorporated by reference from Exhibit 10.37 to the Companys Annual Report on Form 10-K filed with the SEC on July 22, 2019).
10.27
Supply and Service Contract between the Company and Empresa Electrica Panguipulli S.A. dated September 19, 2019 (incorporated by reference from Exhibit 10.1 to Current Report on Form 8-K filed on September 23, 2019). +
10.28
Supply and Service Contract between the Company and Enel Green Power Chile LTDA dated September 19, 2019 (incorporated by reference from Exhibit 10.2 to Current Report on Form 8-K filed on September 23, 2019). +
10.29
Contract amendment between Eni s.P.a. and the Company dated February 28, 2020 (incorporated by reference from Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q filed on March 9, 2020).
10.30
U.S. Small Business Administration Note dated May 3, 2020 of Ocean Power Technologies, Inc. in favor of Santander Bank, N.A. as the Lender (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on May 7, 2020).
10.31
Loan Agreement dated May 3, 2020 between Santander Bank, N.A. and Ocean Power Technologies, Inc. (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K filed on May 7, 2020).
10.32
Common Stock Purchase Agreement, dated September 18, 2020, between Ocean Power Technologies, Inc. and Aspire Capital Fund, LLC (incorporated by reference from Exhibit 10.1 to the Companys Current Report on Form 8-K filed on September 18, 2020).
10.33
Subcontract between Ocean Power Technologies, Inc. and Adams Communication & Engineering Technology Inc. dated effective October 20, 2020 (incorporated by reference from Exhibit 10.1 to the Companys Current Report on Form 8-K filed on October 27, 2020).
10.34
Sales Agreement, dated November 20, 2020, by and between Ocean Power Technologies, Inc. and A.G.P./Alliance Global Partners (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on November 20, 2020.
21.1
Subsidiaries of the registrant (incorporated by reference to Exhibit 21.1 to the Annual Report on Form 10-K for the year ended April 30, 2021).
23.1
Consent of EisnerAmper LLP (incorporated by reference to Exhibit 23.1 to the Companys Annual Report on Form 10-K filed with the SEC on July 19, 2021).
23.2
Consent of KPMG (incorporated by reference to Exhibit 23.2 to the Companys Annual Report on Form 10-K filed with the SEC on July 19, 2021).
31.1
31.2
Certification of Chief Financial Officer
32.1
pursuant to Section 906 of Sarbanes-Oxley Act of 2002**
32.2
Certification of Chief Financial Officer pursuant to Section 906 of Sarbanes-Oxley Act of 2002**
The following financial information from Ocean Power Technologies, Inc.s Annual Report on Form 10-K for the annual period ended April 30, 2020, formatted in eXtensible Business Reporting Language (XBRL): (i) Consolidated Balance Sheets - as of April 30, 2020 and 2019, (ii) Consolidated Statements of Operations - for the years ended April 30, 2021 and 2020, (iii) Consolidated Statements of Comprehensive Loss - for the years ended April 30, 2021 and 20120, (iv) Consolidated Statements of Stockholders Equity - for the years ended April 30, 2021 and 2020 (v) Consolidated Statements of Cash Flows - for the years ended April 30, 2021 and 2020, (vi) Notes to Consolidated Financial Statements.***
+ Indicates that confidential treatment has been requested for this exhibit.
* Management contract or compensatory plan or arrangement.
** As provided in Item 601(b)(32)(ii) of Regulation S-K, this exhibit shall not be deemed to be filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, and shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liability under those sections.
*** As provided in Rule 406T of Regulation S-T, this exhibit shall not be deemed filed or a part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, and shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liability under those sections.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
accelerated filer, smaller reporting company and emerging growth company in Rule12b-2 of the Exchange Act.
### EXPLANATORY NOTE
UNIVERSAL SECURITY INSTRUMENTS,INC. 1 (the Amendment) to the Companys Annual Report on Form 10-K for the year ended March 31, 2021, filed with the Securities and Exchange Commission on July 8, 2021 (the Original Filing), solely for the purposes of furnishing the Interactive Data File disclosure as Exhibit 101 in accordance with Rule 405 of Regulation S-T, which was not included in the Original Filing. Exhibit 101 includes information in eXtensible Business Reporting Language (XBRL).
Other than as expressly set forth above, this Amendment does not, and does not purport to, amend, update or restate any other items or disclosures contained in the Original Filing and does not reflect events occurring after the date of the Original Filing. This Amendment consists solely of the cover page, this explanatory note, the exhibit index and the exhibits filed herewith.
PARTIV
ITEM 15
### EXHIBITS
(a)3. Exhibits required to be filed by Item 601 of Regulation S-K.
ExhibitNo.
3.1
Articles of Incorporation (incorporated by reference to the Companys Quarterly Report on Form10-Q for the period ended December31, 1988, File No.1-31747)
3.2
Articles Supplementary, filed October14, 2003 (incorporated by reference to Exhibit3.1 to the Companys Current Report on Form8-K filed October31, 2002, file No.1-31747)
3.3
Bylaws, as amended (incorporated by reference to Exhibit3.1 to the Companys Current Report on Form8-K filed July13, 2011, File No.1-31747)
10.1
2011 Non-Qualified Stock Option Plan (incorporated by reference to the Companys Proxy Statement with respect to the Companys 2011 Annual Meeting of Shareholders, filed July26, 2011, File No.1-31747)
10.2
Hong Kong Joint Venture Agreement, as amended (incorporated by reference to Exhibit10.1 to the Companys Annual Report on Form10-K for the year ended March31, 2003, File No.1-31747)
10.3
Discount Factoring Agreement between the Registrant and Merchant Factors Corp., dated January6, 2015 (substantially identical agreement entered into by USIs wholly-owned subsidiary, USI Electric,Inc.) (incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed January16, 2015, file No.1-31747)
10.4
Lease between Universal Security Instruments,Inc. and St. John Properties,Inc. dated November4, 2008 for its office and warehouse located at 11407 Cronhill Drive, Suites A-D, Owings Mills, Maryland 21117 (incorporated by reference to Exhibit10.8 to the Companys Quarterly Report on Form10-Q for the period ended December31, 2008, File No.1-31747)
10.5
Amendment to Lease between Universal Security Instruments,Inc. and St. John Properties,Inc. dated June23, 2009 (incorporated by reference to Exhibit10.9 to the Companys Annual Report on Form10-K for the year ended March31, 2009, File No.1-31747)
10.6
Amended and Restated Employment Agreement dated July18, 2007 between the Company and Harvey B. Grossblatt ( incorporated by reference to Exhibit10.7 to the Companys Quarterly Report on Form10-Q for the period ended December31, 2007, File No.1-31747
), as amended by Addendum dated November13, 2007 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed November15, 2007, File No.1-31747
), by Addendum dated September8, 2008 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed September8, 2008, File No.1-31747
), by Addendum dated March11, 2010 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed March12, 2010, File No.1-31747
), by Addendum dated July19, 2012 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed July20, 2012, File No.1-31747
), by Addendum dated July3, 2013 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed July8, 2013, File No.1-31747
), and by Addendum dated July21, 2014 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed July21, 2014, File No.1-31747
) ), by addendum dated July23, 2015 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed July28, 2015, File No.1-31747
), by addendum dated July12, 2016 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed July12, 2016, File No.1-31747
) by addendum dated July18, 2017 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed July20, 2017, File No.1-31747
), by addendum dated July9, 2018 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed July9, 2018, File No.1-31747
), by addendum dated July12, 2019 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed July16, 2019, File No.1-31747
), and by addendum dated July27, 2020 ( incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed July27, 2020, File No.1-31747
).
Subsidiaries of the Registrant (incorporated by reference to Exhibit21 to the Companys Annual Report on Form10-K for the year ended March31, 2012, File No.1-31747)
23.1
Independent Registered Public Accounting Firms Consent
31.1
Rule13a-14(a)/15d-14(a)Certification of Chief Executive Officer*
31.2
Rule13a-14(a)/15d-14(a)Certification of Chief Financial Officer*
32.1
Section1350 Certifications*
99.1
### Press Release dated July 8, 2021*
Interactive data files providing financial information from the Registrants Annual Report on Form10-K for the fiscal year ended March31, 2021 in XBRL (eXtensible Business Reporting Language) pursuant to Rule405 of Regulation S-T: (i)Consolidated Balance Sheets as of March31, 2021 and 2020; (ii)Consolidated Statements of Operations for the years ended March31, 2021 and 2020; (iii)Consolidated Statements of Comprehensive Income (Loss) for the years ended March 31, 2021 and 2020 (iv)Consolidated Statements of Shareholders Equity for the years ended March31, 2021 and 2020; (v)Consolidated Statements of Cash Flows for the years ended March31, 2021 and 2020; and (vi)Notes to Consolidated Financial Statements*
*Filed herewith.<|endoftext|>### CERTAIN TERMS
References to the Company, our, us or we refer to Lionheart Acquisition Corporation II, a blank check company incorporated in Delaware on December 23, 2019. References to our Sponsor, Lionheart or Lionheart Equities refer to Lionheart Equities, LLC, our Sponsor and an affiliate of Mr. Ophir Steinberg, our Chairman, President and Chief Executive Officer. References to our Public Offering refer to the initial public offering of Lionheart Acquisition Corporation II, which closed on August 18, 2020.
EXPLANATORY NOTE
The Company is filing this Annual Report on Form 10-K/A (this
### Amendment
), to amend its Annual Report on Form 10-K for the year ended December 31, 2020, originally filed with the Securities and Exchange Commission (the
SEC
), on March 31, 2021 (the
### Original 10-K
), to restate its previously issued audited financial statements as of and for the year ended December 31, 2020 (the
Restatement
). The Company is also restating certain items on its previously issued audited pro forma balance sheet as of August 18, 2020 (issued in connection with the Public Offering) and its previously issued unaudited financial statements as of and for the quarter ended September 30, 2020 in the accompanying financial statements included in this Amendment (such financial statements, collectively, the
### Original Financial Statements
, and such periods, collectively, the
Impacted Periods
). This Amendment also amends certain other Items in the Original 10-K, as listed in Items Amended in this Amendment below.
The Restatement primarily relates to consideration of the factors in determining whether to classify contracts that may be settled in an entitys own stock as equity of the entity or as an asset or liability in accordance with Accounting Standards Codification (
ASC
) 815-40,
In the Original Financial Statements, the Company classified the Public Warrants and Private Warrants (each as defined below) issued in connection with the Public Offering as equity instruments. Upon further consideration of the rules and guidance, the Companys management concluded that the Public Warrants and Private Warrants are precluded from equity classification. As a result, the Companys warrants should be, and should have been, recorded as liabilities on its balance sheet and measured at fair value at inception and on a recurring basis in accordance with ASC 820,
As a result, on May 10, 2021, after consultation with Marcum LLP, the Companys independent registered public accounting firm, the Companys Audit Committee of the Board of Directors (the
### Board
) concluded that the Original Financial Statements should no longer be relied upon and are to be restated in order to correct the classification error.
The Companys accounting for the Public Warrants and Private Warrants as components of equity instead of as derivative liabilities did not have any effect on the Companys previously reported investments held in trust, cash flows or cash.
The Company has not amended its Current Report on Form 8-K filed on August 24, 2020 or Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, both of which were impacted by the Restatement. The financial information that has been previously filed or otherwise reported with respect to the Impacted Periods is superseded by the information in this Amendment, and the Original Financial Statements and related financial information contained in such previously filed reports should no longer be relied upon.
Except as described above, this Amendment does not amend, update or change any other items or disclosures contained in the Original 10-K, and accordingly, this Amendment does not reflect or purport to reflect any information or events occurring after the original filing date or modify or update those disclosures affected by subsequent events. As such, this Amendment speaks only as of the date the Original 10-K was filed, and we have not undertaken herein to amend, supplement or update any information contained in the Original 10-K to give effect to any subsequent events. Accordingly, this Amendment should be read in conjunction with the Original 10-K and the Companys other filings with the SEC.
### Restatement Background
On April 12, 2021, the Acting Director of the Division of Corporation Finance and Acting Chief Accountant of the SEC together issued a public statement (the
SEC Statement
) regarding the accounting and reporting considerations for warrants issued by special purpose acquisition companies (
### SPACs
). The SEC Statement indicated that when one or more of such features is included in a warrant (as is the case with the Public Warrants the Private Warrants), the warrant should be classified as a liability measured at fair value, with changes in fair value each period reported in earnings.
This Amendment reflects the correction of the following errors identified in light of the SEC Statement, subsequent to the filing of the Original Financial Statements (see Item 8. and Note 2 of the Notes to the Financial Statements included herein for more details on the impact of the Restatement on our financial statements). Additionally, the Company revised the Statement of Changes in Stockholders Equity to present temporary equity separate from permanent equity, which allows for better alignment to the presentation of the Companys Balance Sheets.
In connection with the Restatement, the Companys management reassessed the effectiveness of the Companys disclosure controls and procedures as of December 31, 2020, and due solely to the material weakness in our internal control over financial reporting related to the Restatement, concluded that the Companys disclosure controls and procedures were not effective as of December 31, 2020. For a discussion of managements consideration of our disclosure controls and procedures, see Item 9A.
This Amendment sets forth the Original 10-K in its entirety, as amended to reflect the Restatement. No attempt has been made in this Amendment to update other disclosures presented in the Original 10-K, except as required to reflect the effects of the Restatement.
Part II Item 7.
Part II Item 8.
Part II Item 9A. Controls and Procedures.
Part IV Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Of ClassB ordinary shares will collectively equal 20% of the Companys issued and outstanding ordinary shares after the IPO. (See Note 4)
Holders of the ClassA ordinary shares and holders of the ClassB ordinary shares will vote together as a single class on all matters submitted to a vote of our shareholders, except as required by law or stock exchange rule; provided that only holders of the ClassB ordinary shares have the right to vote on the election of the Companys directors prior to the initial Business Combination and holders of a majority of the Companys ClassB ordinary shares may remove a member of the board of directors for any reason.
The ClassB ordinary shares will automatically convert into ClassA ordinary shares on the first business day following the consummation of the initial Business Combination at a ratio such that the number of ClassA ordinary shares issuable upon conversion of all Founder Shares will equal, in the aggregate, on an as-converted basis, 20% of the sum of (i)the total number of ordinary shares issued and outstanding (excluding the private placement shares) upon the consummation of the IPO, plus (ii)the sum of the total number of ClassA ordinary shares issued or deemed issued or issuable upon conversion or exercise of any equity-linked securities or rights issued or deemed issued, by the Company in connection with or in relation to the consummation of the initial Business Combination, excluding any ClassA ordinary shares or equity-linked securities exercisable for or convertible into ClassA ordinary shares issued, deemed issued, or to be issued, to any seller in the initial Business Combination and any private placement shares issued to the Sponsor, members of the Companys management team or any of their affiliates upon conversion of Working Capital Loans. In no event will the ClassB ordinary shares convert into ClassA ordinary shares at a rate of less than one-to one.
The Company did not identify any other subsequent events, other than as described below, that would have required adjustment or disclosure in the financial statements that are not already previously disclosed.
The underwriter of the IPO was granted a 45-day option from the date of the IPO to purchase up to 2,250,000 additional Units to cover over-allotments. The over-allotment option was partially exercised to purchase 1,377,622 Units on November 27, 2020. On January7, 2021 the remaining option to purchase additional Units expired unused. As such, 218,094 Founder Shares were forfeited to the Company for no consideration.
### Redwire Business Combination
On March25, 2021, the Company entered into an Agreement and Plan of Merger (the Merger Agreement) by and among the Company, Shepard Merger Sub Corporation, a Delaware corporation and direct, wholly owned subsidiary of the Company (Merger Sub), Cosmos Intermediate, LLC, a Delaware limited liability company and direct, wholly owned subsidiary of Holdings (Cosmos), and Redwire, LLC. Pursuant to the Merger Agreement, the parties thereto will enter into a business combination transaction (the Business Combination) by which, (i)the Company shall domesticate as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law and the Companies Act of the Cayman Islands, (ii)Merger Sub will merge with and into Cosmos, with Cosmos being the surviving entity in the merger (the First Merger), and (iii)immediately following the First Merger, Cosmos will merge with and into the Company, with the Company being the surviving entity in the merger.
For additional information regarding the Business Combination and the Merger Agreement and related agreements, see the Current Report on Form 8-K filed by the Company with the SEC on March25, 2021.
(b) The following Exhibits are filed as part of this annual report:
ExhibitNo.
Description
1.1
Amended and Restated Memorandum and Articles of Association.**
2.1
Specimen Unit Certificate.**
2.2
Specimen ClassA Ordinary Share Certificate.**
2.3
2.4
3.1
Letter Agreement among the Registrant, the Sponsor and each director and officer.*
4.1
Form of Letter Agreement among the Sponsor and each subscriber.**
5.1
6.1
Registration and Shareholder Rights Agreement among the Registrant, the Sponsor, the Managing Member and Jefferies*
7.1
Private Placement Warrants Purchase Agreement between the Registrant and Sponsor*
7.2
Private Placement Warrants Purchase Agreement between the Registrant and Jefferies*
8.1
Indemnity Agreement between the Registrant and Paul W. Hobby*
8.2
Indemnity Agreement between the Registrant and Jonathan E. Baliff*
8.3
Indemnity Agreement between the Registrant and David Bilger*
8.4
Indemnity Agreement between the Registrant and David N. Siegel*
8.5
Indemnity Agreement between the Registrant and Wayne Gilbert West*
8.6
Indemnity Agreement between the Registrant and Richard Anderson*
8.7
Indemnity Agreement between the Registrant and Thomas Dan Friedkin*
8.8
Indemnity Agreement between the Registrant and Andrea Fischer Newman*
8.9
Indemnity Agreement between the Registrant and Jonina Jonsson*
8.10
Indemnity Agreement between the Registrant and John S. Bolton*
9.1
Form of Administrative Services Agreement between the Registrant and Genesis Park II LP**
10.1
Form of Subscription Agreement between the Registrant and the anchor investor*
10.2
Subscription Agreement, dated July30, 2020, between the Registrant and the Sponsor**
11.1
Promissory Note, dated July30, 2020, issued to the Sponsor**
12.1
Code of Ethics**
31.1
Certification of Principal Executive Officer pursuant to Section302 of the Sarbanes-Oxley Act of 2002***
31.2
Certification of Principal Financial and Accounting Officer pursuant to Section302 of the Sarbanes-Oxley Act of 2002***
32.1
Certification of Principal Executive Officer pursuant to Section906 of the Sarbanes-Oxley Act of 2002.***
32.2
Certification of Principal Financial and Accounting Officer pursuant to Section906 of the Sarbanes-Oxley Act of 2002***
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.DEF
101.LAB
XBRL Taxonomy Label Linkbase
101.PRE
*
8-K filed on November27, 2020
**
### S-1, as amended (SEC File
No.333-249066).
***
Filed herewith.<|endoftext|>In 2020 is included in the showing the compensation for our named executive officers.
2020 DIRECTOR COMPENSATION
None of the Companys named executive officers serves, nor at any time during 2020 served, as a member of the board or compensation committee of any other entity whose executive officer(s) serve as a member of the Companys Board or Compensation Committee.
The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis contained in this Proxy Statement with management. Based on the Compensation Committees review of, and discussions with management with respect to, the Compensation Discussion and Analysis, the Compensation Committee recommended to the Board that the Compensation Discussion and Analysis be included in this Proxy Statement.
THE COMPENSATION COMMITTEE:
### Brian Kelley, Chairman
Bradley Radoff
Joshua E. Schechter
Item 12.
The following table sets forth certain information as of April 6, 2021 with respect to the beneficial ownership of shares of Common Stock by: (i) each person (including any group as that term is used in Section 13(d)(3) of the Exchange Act) who is known by us to beneficially own more than 5% of the outstanding shares of our Common Stock; (ii) each of the Companys named executive officers listed in the Summary Compensation Table under the section entitled Executive Compensation; (iii) each of our directors; and (iv) all directors and named executive officers of the Company as a group. On April 6, 2021, 24,089,111shares of Common Stock were issued and outstanding. Ownership information is based on information furnished by the respective individuals or entities, as the case may be.
*
Represents holdings of less than 1%.
The following table gives information as of December 31, 2020 about shares of our common stock that may be issued upon the exercise of outstanding options, warrants and rights and shares remaining available for issuance under all of our equity compensation plans:
Item 13.
We have a process for review and approval of any relationships and transactions in which we and our directors, officers, 5% stockholders or their immediate family members (Related Persons) are participants to determine whether those Related Persons may have a direct or indirect material interest. We collect and update information about the affiliations of our Section 16 Officers and directors annually though Director& Officer Questionnaires and we maintain and use a list of known related parties to identify any transactions with Related Persons. In addition, at the close of each fiscal quarter we survey our Finance, Legal and executive staff for knowledge of transactions with Related Persons. Our Ethics Committee reviews any such related party transactions under the supervision of the Audit Committee. Our Ethics Committee is comprised of our Chief Legal Officer and our Principal Financial Officer and operates as described in the Code of Ethics.
There have been no related-party transactions since the beginning of fiscal year 2020, and there are no currently proposed transactions, in either case in which (a)Support.com was a participant, (b)the amount involved exceeded the lesser of (i) $120,000 or (ii) (1%) one percent of the average of the Companys total assets for fiscal years 2019 and 2020, and (c)any Related Person had a direct or indirect material interest.
### Item 14.
Plante & Moran serves as our independent registered public accounting firm. The following is a listing of the services provided by type and amount charged by Plante & Moran to the Company for fiscal years 2019 and 2020.
### Audit Fees.
This category consists of the aggregate fees and out-of-pocket expenses for professional services provided in connection with the audits of our consolidated financial statements and review of our quarterly financial statements included in Form 10-Qs and audit services in connection with other statutory or regulatory filings.
Audit-Related Fees.
This category consists of the aggregate fees billed for assurance and related services that are reasonably related to the performance of the audit or review of our consolidated financial statements. There were no fees for services rendered by Plante & Moran that fall into the classification of audit-related fees for fiscal years 2019 and 2020.
### Tax Fees.
This category consists of the aggregate fees billed for tax compliance/preparation and other tax services. Tax compliance/preparation consists of fees billed for tax return preparation, claims for refunds, and tax payment planning services related to federal, state, and international taxes. Other tax services consist of fees billed for services including tax advice, tax strategy and other miscellaneous tax consulting and planning primarily related to our reorganization of international operations. There were no fees for services rendered by Plante & Moran that fall into the classification of tax fees for fiscal years 2019 and 2020.
All Other Fees.
This category consists of the aggregate fees for all other services other than those reported above.
It is our policy that all audit and non-audit services to be performed by our independent registered public accounting firm be approved in advance by the Audit Committee, including all of the services described above for fiscal year 2020.
PART IV
ITEM 15
Schedule IIValuation and qualifying accounts was omitted as the required disclosures are included in Note 1 to the Consolidated Financial Statements in the Original Form 10-K.
All other schedules are omitted since the information required is not applicable or is shown in the Consolidated Financial Statements or notes thereto in the Original Form 10-K.
*
Denotes an executive or director compensation plan or arrangement.
(1) Confidential treatment has been requested for portions of this exhibit.
(2) The material contained in Exhibit 32.1 and 32.2 shall not be deemed filed with the SEC and is not to be incorporated by reference into any filing of the Company under the Securities Act of 1933 or the Securities Exchange Act of 1934, whether made before or after the date hereof irrespective of any general incorporation language contained in such filing, except to the extent that the registrant specifically incorporates it by reference.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Buffington (Incorporated by reference to Exhibit 10.23 to the Registrants Form 8-K, filed with the SEC on June 4, 2020).
10.25
Amendment to the Restricted Stock Unit Agreement (Time) dated as of May 29, 2020 by and between Hycroft Mining Corporation and Randy Buffington (Incorporated by reference to Exhibit 10.24 to the Registrants Form 8-K, filed with the SEC on June 4, 2020).
10.26
Amendment to the Restricted Stock Unit Agreement (Performance) dated as of May 29, 2020 by and between Hycroft Mining Corporation and Stephen Jones (Incorporated by reference to Exhibit 10.25 to the Registrants Form 8-K, filed with the SEC on June 4, 2020).
10.27
Amendment to the Restricted Stock Unit Agreement (Time) dated as of May 29, 2020 by and between Hycroft Mining Corporation and Stephen Jones (Incorporated by reference to Exhibit 10.26 to the Registrants Form 8-K, filed with the SEC on June 4, 2020).
10.28
Restricted Stock Unit Agreement (Performance) dated as of February 20, 2019, by and between Hycroft Mining Corporation and Jeffrey Stieber (Incorporated by reference to Exhibit 10.28 to the Registrants Form S-1, filed with the SEC on July 13, 2020).
10.29
Restricted Stock Unit Agreement (Time) dated as of February 20, 2019, by and between Hycroft Mining Corporation and Jeffrey Stieber (Incorporated by reference to Exhibit 10.29 to the Registrants Form S-1, filed with the SEC on July 13, 2020).
10.30
Amendment to the Restricted Stock Unit Agreement (Performance) dated as of May 29, 2020 by and between Hycroft Mining Corporation and Jeffrey Stieber (Incorporated by reference to Exhibit 10.30 to the Registrants Form S-1, filed with the SEC on July 13, 2020).
10.31
Amendment to the Restricted Stock Unit Agreement (Time) dated as of May 29, 2020 by and between Hycroft Mining Corporation and Jeffrey Stieber (Incorporated by reference to Exhibit 10.31 to the Registrants Form S-1, filed with the SEC on July 13, 2020).
10.32
Transition and Succession Agreement, dated July 1, 2020, between Randy Buffington and Hycroft Mining Holding Corporation and Autar Gold Corporation (Incorporated by reference to Exhibit 10.1 to the Registrants Form 8-K, filed with the SEC on July 2, 2020).
10.33
Restricted Stock Unit Agreement (Time-Vesting), dated July 1, 2020, between Randy Buffington and Hycroft Mining Holding Corporation (Incorporated by reference to Exhibit 10.2 to the Registrants Form 8-K, filed with the SEC on July 2, 2020).
10.34
Consulting Agreement, dated July 1, 2020, between Randy Buffington and Hycroft Mining Holding Corporation (Incorporated by reference to Exhibit 10.3 to the Registrants Form 8-K, filed with the SEC on July 2, 2020).
10.35
Transition and Succession Agreement, dated September 8, 2020, among Hycroft Mining Holding Corporation, Autar Gold Corporation and Stephen M. Jones (Incorporated by reference to Exhibit 10.1 to Registrants Form 8-K, filed with the SEC on September 8, 2020).
10.36
Consulting Agreement, dated September 8, 2020, between Hycroft Mining Holding Corporation and Stephen M. Jones (Incorporated by reference to Exhibit 10.2 to Registrants Form 8-K, filed with the SEC on September 8, 2020).
10.37
Employment Agreement, dated August 31, 2020, between Diane R. Garrett and Hycroft Mining Holding Corporation (Incorporated by reference to Exhibit 10.1 to Registrants Form 8-K, filed with the SEC on August 31, 2020).
10.38
Restricted Stock Unit Agreement (Time-Vesting), dated August 31, 2020, between Diane R. Garrett and Hycroft Mining Holding Corporation (Incorporated by reference to Exhibit 10.2 to Registrants Form 8-K, filed with the SEC on August 31, 2020).
10.39
Employment Agreement, dated October 20, 2020 between Stanton Rideout and Hycroft Mining Holding Corporation (Incorporated by reference to Exhibit 10.1 to the Registrants Form 8-K, filed with the SEC on October 21, 2020).
10.40
Restricted Stock Unit Agreement (Time Vesting), dated October 20, 2020 between Stanton Rideout and Hycroft Mining Holding Corporation (Incorporated by reference to Exhibit 10.2 to the Registrants Form 8-K, filed with the SEC on October 21, 2020).
10.41
Employment Agreement dated January 11, 2021 between Hycroft Mining Holding Corporate and Jack Henris (Incorporated by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K filed with the SEC on January 12, 2021).
10.42
Form of Initial Restricted Stock Unit Agreement (Time-Vesting) (Incorporated by reference to Exhibit 10.2 to the Registrants Current Report on Form 8-K filed with the SEC on January 12, 2021).
21.1
*
*
23.1
Consent of independent registered public accounting firm - Plante & Moran PLLC.*
23.2
Consent of third-party qualified person - M3 Engineering and Technology Corporation.
*
*
23.3
Consent of third-party qualified person - Steven Newman.
*
*
23.4
Consent of third-party qualified person - SRK Consulting (U.S.), Inc.
*
*
23.5
Consent of third-party qualified person - Richard F. DeLong.
*
*
96.1
Technical Report Summary, Heap Leaching Feasibility Study prepared for Hycroft Mining Corporation and issued effective as of July 31, 2019 by M3 Engineering and Technology Corporation and other qualified persons (Incorporated by reference to Exhibit 96.1 to the joint proxy statement/prospectus on Form S-4/A of the Registrant filed with the SEC on April 24, 2020).
31.1
Certification of Chief Executive Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended*
31.2
Certification of Chief Financial Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended*
Section 1350 Certifications.
32.1
32.2
Mine Safety Disclosure Exhibits.
95.1
Mine Safety Disclosures
*
*
Interactive Data File.
101.INS
Inline XBRL Instance Document (the Instance Document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document)*
101.SCH
Inline XBRL Taxonomy Extension Schema Document*
101.CAL
Inline XBRL Taxonomy Extension Calculation Linkbase Document*
101.DEF
Inline XBRL Taxonomy Extension Definition Linkbase Document*
101.LAB
Inline XBRL Taxonomy Extension Label Linkbase Document*
101.PRE
Inline XBRL Taxonomy Extension Presentation Linkbase Document*
*Filed herewith.
** Filed with the Original Filing on March 24, 2021<|endoftext|>Shares to certain members of our management team. Please see Note 6. Related Party Transactions.
After the completion of our initial business combination, directors or members of our management team who remain with us may be paid consulting, management or other compensation from the combined company. All compensation will be fully disclosed to shareholders, to the extent then known, in the tender offer materials or proxy solicitation materials furnished to our shareholders in connection with a proposed business combination. It is unlikely the amount of such compensation will be known at the time, because the directors of the post-combination business will be responsible for determining executive officer and director compensation.
We are not party to any agreements with our directors and officers that provide for benefits upon termination of employment.
Item 12.
The following table sets forth information regarding the beneficial ownership of our ordinary shares as of March 16, 2021 with respect to our ordinary shares held by: each person known by us to be the beneficial owner of more than 5% of our issued and outstanding ordinary shares; each of our directors and executive officers; and all our directors and executive officers as a group.
Unless otherwise indicated, we believe that all persons named in the table have sole voting and investment power with respect to all ordinary shares beneficially owned by them. The following table does not reflect record or beneficial ownership of the private placement warrants as these warrants are not exercisable within 60 days of March 16, 2021.
* Less than onepercent.
(1) Unless otherwise noted, the business address of each of the following entities or individuals is c/o, 1013 Centre Road, Suite 403S, Wilmington, DE 19805.
(2) Interests shown consist solely of founder shares, classified as ClassB ordinary shares. Such ordinary shares will convert into ClassA ordinary shares on a one-for-one basis, subject to adjustment, as described in the section entitled Description of Securities in our prospectus filed with the SEC pursuant to Rule
424(b)(4) (File No. 333-239716).
(3) ACE Convergence Acquisition LLC, our sponsor, is the record holder of the ClassB ordinary shares reported herein. The managers of our sponsor, Messrs.Abdi, Siu and Tse, by virtue of their shared control over our sponsor, may be deemed to beneficially own shares held by our sponsor. Other than Messrs. Abdi, Siu and Tse, no member of our Sponsor exercises voting or dispositive control over any of the shares held by our Sponsor. Each of Messrs. Abdi, Siu and Tse disclaims beneficial ownership of our ordinary shares held by our Sponsor.
(4) According to a Schedule 13G/A filed with the SEC on February 8, 2021, Linden Advisors LP and Siu Min Wong may be deemed to have shared voting and dispositive power with regard to 1,200,000 Class A ordinary shares of the Company. The business address of each is 590 Madison Avenue, 15th Floor, New York, New York 10022.
(5) According to a Schedule 13G filed with the SEC on February 12, 2021, each of Weiss Asset Management LP, WAM GP LLC and Andrew M. Weiss may be deemed to have shared voting and dispositive power with regard to 1,197,001 Class A ordinary shares of the Company. The business address for each is 222 Berkeley Street, 16th Floor, Boston, MA 02116.
(6) According to a Schedule 13G filed with the SEC on February 16, 2021, each of Castle Creek Arbitrage, LLC and Mr. Allan Weine may be deemed to have shared voting and dispositive power with regard to 1,500,198 Class A ordinary shares of the Company. The business address for each is 190 South LaSalle Street, Suite 3050, Chicago, IL 60603.
Item 13.
### Founder Shares
Each Private Placement Warrant is exercisable to purchase one Class A ordinary share at a price of $11.50 per share, subject to adjustment (see Note 8).
### Registration Rights
Pursuant to a registration rights agreement entered into on July 27, 2020, the holders of the Founder Shares, Private Placement Warrants and any warrants that may be issued on conversion of Working Capital Loans (and any Class A ordinary shares issuable upon the exercise of the Private Placement Warrants or warrants issued upon conversion of the Working Capital Loans and upon conversion of the Founder Shares) are entitled to registration rights requiring the Company to register such securities for resale (in the case of the Founder Shares, only after conversion to the Companys Class A ordinary shares). The holders of these securities will be entitled to make up to three demands,excluding short form registration demands, that the Company register such securities. In addition, the holders have certain piggy-back registration rights with respect to registration statements filed subsequent to the completion of a Business Combination and rights to require the Company to register for resale such securities pursuant to Rule 415 under the Securities Act.
Related Party Notes
For the period from March 31, 2020 (inception) through December 31, 2020, the Company incurred and paid $20,000, in fees for these services.
Item 14.
Fees for professional services provided by our independent registered public accounting firm for the last two fiscal years include:
(1)
Audit Fees. Audit fees consist of fees billed for professional services rendered for the audit of our year-end financial statements and services that are normally provided by our independent registered public accounting firm in connection with statutory and regulatory filings.
(2)
Audit-Related Fees.
(3)
Tax Fees. Tax fees consist of fees billed for professional services relating to tax compliance, tax planning, tax advice and financial and tax due diligence.
(4)
All Other Fees. All other fees consist of fees billed for all other services including permitted due diligence services related potential business combination.
Policy on Board Pre-Approval of Audit and Permissible Non-Audit Services of the Independent Auditors
The audit committee is responsible for appointing, setting compensation and overseeing the work of the independent auditors. In recognition of this responsibility, the audit committee shall review and, in its sole discretion, pre-approve all audit and permitted non-audit services to be provided by the independent auditors as provided under the audit committee charter.
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Assets which are comprised primarily of basis differences in Purple LLC. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income sufficient to utilize the deferred tax assets on income tax returns. In prior years, management made the determination that its net deferred tax assets were not more likely than not going to be realized because the Company was in a three-year cumulative loss position and the generation of future taxable income was uncertain. Considering this and other factors, the Company had a full valuation allowance of $44.3million as of December 31, 2019.
As a result, $35.5 million of the valuation allowance associated with the Companys federal and state deferred tax assets was released and recorded as an income tax benefit. In conjunction with the removal of some of the valuation allowance, the Company recorded an additional $218.9 million in deferred tax assets primarily related to tax basis increases resulting from exchanges of Class B Paired Securities during the year ended December 31, 2020. The deferred tax assets at December 31, 2020 are $211.2 million, which is net of $52.0 million of valuation allowance that has been recorded against the residual outside partnership basis for the amount the Company believes is not more likely than not realizable. As a result, there was an overall increase of $7.7 million in the valuation allowance from December 31, 2019 to December 31, 2020, primarily as a result of the increase in the residual outside partnership basis, partially offset by the removal of the valuation allowance on the other existing deferred tax assets.
Corporate taxpayers may carryback net operating losses (NOLs) originating during 2018 through 2020 for up to five years, which was not previously allowed under the 2017 Tax Act. Taxpayers may generally deduct interest up to the sum of 50% of adjusted taxable income plus business interest income (30% limit under the 2017 Tax Act) for tax years beginning January 1, 2019 and 2020.
The enactment of the CARES Act resulted in two adjustments to our income tax provision, relating to increased 2019 NOL utilization and tax benefits from NOL carrybacks. We have recorded $0.2 million in our income tax provision for the year ended December 31, 2020 related to the CARES Act.
As noncontrolling interest holders exercise their right to exchange or cause Purple LLC to redeem all or a portion of their Class B Units, a TRA Liability may be recorded based on 80% of the estimated future cash tax savings that the Company may realize as a result of increases in the basis of the assets of Purple LLC attributed to the Company as a result of such exchange or redemption.
The estimation of liability under the TRA is by its nature imprecise and subject to significant assumptions regarding the amount and timing of future taxable income. As a result of the initial merger transaction and the subsequent exchanges of 43.5 million Class B Units for Class A Stock as of December 31, 2020, the potential future TRA liability is $172.0 million, of which all has been recorded through the year ended December 31, 2020. Due to changes in estimates relating to the expected tax benefits associated with the liability under the Tax Receivable, the estimate of $172.0 million has been recorded to date ($0.5 million in 2019 and an incremental $171.5 million through December 31, 2020).
The Company has no federal net operating loss (NOL) carryforwards after utilization of the remaining carryforwards in 2020.
The effects of uncertain tax positions are recognized in the consolidated financial statements if these positions meet a more-likely-than-not threshold. For those uncertain tax positions that are recognized in the consolidated financial statements, liabilities are established to reflect the portion of those positions it cannot conclude more-likely-than-not to be realized upon ultimate settlement. The Companys policy is to recognize interest and penalties related to unrecognized tax benefits on the income tax expense line in the accompanying consolidated statement of operations. Accrued interest and penalties would be included on the related tax liability line in the consolidated balance sheet. As of December 31, 2020 and 2019, no uncertain tax positions were recognized as liabilities in the consolidated financial statements.
22. Subsequent Events
On January 15, 2021, the Company paid $0.6 million to InnoHold pursuant to the terms of the Tax Receivable Agreement. The amount paid represents 80% of the net cash savings to the Company in federal and state income taxes as a result of the tax basis increases resulting from the exchange of Paired Securities for shares of Class A Stock.
During January 2021, the Company paid out $0.2 million in tax distributions under the Second Purple LLC Agreement.
During January, February and March 2021, approximately 6.5 million Sponsor Warrants were exercised on a cashless basis and approximately 2.2 million shares of Class A Stock were issued. Of that amount, CCP, CDF and Blackwell exercised on a cashless basis approximately 5.8 million Sponsor Warrants and approximately 2.0 million shares of Class A Stock were issued to them.
During January, February and March 2021, approximately 0.1 million Paired Securities were exchanged for shares of Class A Stock.
On February 3, 2021 the Company received $4.1 million from InnoHold as reimbursement for amounts that qualified for indemnification from the $5.0 million held in escrow pursuant to a contingency escrow agreement. The remaining $0.9 million in escrow was returned to InnoHold. The amount received from InnoHold was recorded as additional paid-in capital.
On February 4, 2021 the Company closed an industrial revenue bond transaction with Henry County Development Authority in Georgia (Henry County) in order to receive real and personal property tax abatements on our new facility in McDonough, Georgia. Pursuant to this transaction, Henry County issued a $21.0 million industrial revenue bond to the Company and will use the proceeds to purchase the property from the Company. Henry County will then lease the property back to the Company in the same amount and on the same due dates as Henry Countys debt service on the industrial revenue bond. No cash will be exchanged.
On March 3, 2021, the Company began operations in its new facility in McDonough, Georgia.
Signatures<|endoftext|>Be prohibited from referring such opportunity to us. Below is a table summarizing the companies to which our officers and directors owe fiduciary obligations that could conflict with their fiduciary obligations to us, all of which may have to (i) be presented appropriate potential target businesses by our officers or directors, and (ii) reject the opportunity to acquire such potential target business, before the opportunity may be presented to us:
(1)
Does not include blank check companies, such as FTAC Zeus, FTAC Parnassus, INSU IV and FinTech VI, each of which have not yet consummated an initial public offering.
Messrs. Cohen and McEntee are directors of Bancorp, a financial holding company, and its subsidiary bank, Bancorp Bank, which provide banking and other financial services, including prepaid and debit cards, private label banking, healthcare accounts and merchant card processing. As such, they are required to present corporate opportunities relating to the current business of Bancorp and Bancorp Bank, as well as businesses that may be undertaken by a financial holding company under federal banking law, prior to presenting them to us.
Messrs. Cohen and Listman are also executives and/or directors of Cohen& Company, a financial services company specializing in credit-related fixed income investments, including fixed income sales, trading and financing, and management of fixed income assets. As such, Messrs. Cohen and Listman are obligated to present corporate opportunities relating to such businesses to the respective companies prior to presenting those opportunities to us.
We do not believe that any of the foregoing pre-existing fiduciary duties will materially affect our ability to consummate our initial business combination because, although the foregoing entities are involved in the financial services industry broadly defined, the specific industry focuses of a majority of these entities differ from our focus on financial technology businesses.
Messrs. Cohen and McEntee are affiliated with Bancorp, Mr. Cohen is the son of Mrs. Cohen and Ms.Rock Zubrow is a cousin of Mr.Cohen and Mrs.Cohen. These relationships may influence the roles taken by our officers and directors with respect to us. In particular, one of our directors or officers may be less likely to object to a course of action with respect to our activities because it may jeopardize his or her relationships with the others.
In addition, each of our sponsor, officers and directors may participate in the formation of, or become an officer or director of, any other blank check company prior to the completion of our initial business combination. As a result, our sponsor, officers and directors could have conflicts of interest in determining whether to present business combination opportunities to us or to any other blank check company with which they may become involved. In particular, an affiliate of our sponsor is currently sponsoring other blank check companies, FinTech V and FinTech VI, each of which is seeking to complete a business combination. Further, many of our directors and officers serve in the same roles for FinTech V and FinTech VI. Mr.Cohen also serves as the Chairman of the board of directors of INSU III, INSU IV, FTAC Parnassus and FTAC Zeus, each of which is a blank check company seeking to complete a business combination. Mrs.Cohen and Mr.Listman also serve as the Chairman of the Board and Chief Financial Officer, respectively, of FTAC Olympus, FTAC Athena and FTAC Hera, each of which is a blank check company seeking to complete a business combination. Any such companies, including FinTech V, FinTech VI, INSUIII, INSU IV, FTAC Olympus, FTAC Athena, FTAC Hera, FTAC Parnassus and FTAC Zeus, may present additional conflicts of interest in pursuing an acquisition target.
### Director Independence
The Nasdaq rules require that a majority of the board of directors of a company listed on Nasdaq must be composed of independent directors, which is defined generally as a person other than an officer or employee of the company or its subsidiaries or any other individual having a relationship, which, in the opinion of the companys board of directors, would interfere with the directors exercise of independent judgment in carrying out the responsibilities of a director. We have determined that Mses. Kohn, Zubrow, Ezzes and Antoncic are independent directors under the Nasdaq rules and Rule 10A-3 of the Exchange Act.
Item14.
The firm of WithumSmith+Brown, PC, or Withum, acted as our independent registered public accounting firm during the years ended December 31, 2020 and 2019.
Audit Fees
For the years ended December 31, 2020 and 2019, fees for our independent registered public accounting firm were approximately $66,950 and $27,375, respectively, for the services Withum performed in connection with our Initial Public Offering and the audit of our December 31, 2020 and 2019 financial statements included in this Annual Report.
### Audit-Related Fees
For the years ended December 31, 2020 and 2019, our independent registered public accounting firm did not render assurance and related services related to the performance of the audit or review of financial statements.
Tax Fees
We did not pay Withum for tax compliance, tax advice and tax planning for the years ended December 31, 2020 and 2019.
### All Other Fees
We did not pay Withum for other services for the years ended December 31, 2020 and 2019.
Our audit committee was formed upon the consummation of the initial public offering.
### PART IV
Item15.
(a)
None.
(3)
### Exhibits
The following exhibits are filed as part of, or incorporated by reference into, this Annual Report. The SEC maintains an Internet site at www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC, including the Company. Copies of the exhibits which are incorporated herein by reference can be obtained on the SEC website at www.sec.gov.
*
Filed herewith
**
Previously filed
(1)
Previously filed as an exhibit to our Current Report on Form 8-K filed on September 30, 2020
(2)
Previously filed as an exhibit to our Registration Statement on Form S-1, as amended (File No. 333-248664)
(3)
Previously filed as an exhibit to our Current Report on Form 8-K/A filed on December 31, 2020
Item16.
FORM 10-K SUMMARY.
Not applicable.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
20,774 shares owned directly by him and 3,639,367 shares represents the beneficial ownership of the Companys securities by Sagard Capital Partners, L.P., a Delaware limited partnership ("Sagard Capital"). Mr. Robinson is the President of Sagard Holdings ULC and its subsidiary, Sagard Capital Partners Management Corporation ("Sagard Management"), the investment manager of Sagard Capital, and of Sagard Capital Partners GP, Inc., the general partner of Sagard Capital. Mr. Robinson disclaims beneficial ownership of such securities by virtue of his position as the President of Sagard Management.
(3)
Includes 49,970 shares of Common Stock allocated to accounts pursuant to the provisions of our Retirement Savings Plan.
Equity Compensation Plan Information as of December31, 2020
For a description of the material terms of our stock-based compensation plans, see Note12 to the Consolidated Financial Statements in Item 8 of the Original Filing.
Item 13.
Review & Approval Process for Related Person Transactions
Our Corporate Governance Guidelines require each director to avoid any action, position or interest that conflicts with an interest of the Company or gives the appearance of a conflict. Although there is no formal written procedure in those Guidelines for handling such situations when they arise, in practice our Board of Directors, or a committee thereof, is responsible for reviewing and approving, all related person transactions. A related person transaction is a transaction, arrangement or relationship (or any series of similar transactions, arrangements or relationships) in which the Company and any related person are participants. A related person is an executive officer, director, or more than 5% stockholder of the Company, including any of their immediate family members, and any entity owned or controlled by such persons.
Our Conduct of Business Policy governs related person transactions involving executive officers and the Company. It prohibits activities or relationships which are incompatible with employment by the Company or which places the executive in a position where there is a conflict between the executives private interests and the interests of the Company, its subsidiaries or affiliates. Executives are required to immediately disclose such situations to their supervisor, the Companys Ethics Program Compliance Officer, or the Companys General Counsel for a determination of appropriate action. The Company maintains a telephone hotline for employees to confidentiallyreport questionable activities or seek advice in handling ethics-related issues.
### Director Independence
The Board of Directors reviews the independence of its members on an annual basis. No Director will be deemed to be independent unless the Board affirmatively determines that the Director in question has no material relationship with the Company, directly or as an officer, stockholder, member or partner of an organization that has a material relationship with the Company. The Board has not adopted any categorical standards of Director independence, however, the Board of Directors employs the standards of independence of the New York Stock Exchange (NYSE) rules currently in effect in making its determination that a Director qualifies as independent. In its annual review of Director independence, the Board considers all commercial, banking, consulting, legal, accounting, charitable or other business relationships any Director may have with the Company. As a result of its annual review, the Board of Directors has determined that Tamar Elkeles, Marshall S. Geller, Steven E. Koonin, Richard C. Pfenniger, Jr. and Samuel D. Robinson are independent and that Scott N. Greenberg, Jacques Manardo and Adam H. Stedham are not deemed to be independent. The Company has Nominating/Corporate Governance, Compensation and Audit Committees and based on these standards, all current members of such Committees are independent. The Company also has an Executive Committee, of which Mr. Greenberg is a member and a Government Security Committee, of which Mr. Stedham is a member.
Item 14.
### Independent Registered Public Accountant Fees
The following table sets forth the fees billed to us for the years ended December 31, 2020 and 2019 for professional services rendered by our independent registered public accountants, KPMG LLP:
__________________________
(1)
Audit fees for 2020 and 2019 consisted of fees for the audit of our consolidated financial statements, including quarterly review services, fees with respect to the audit of internal control over financial reporting and SEC reporting matters, fees for statutory audit services for foreign subsidiaries, and fees related to an updated consent for a Form S-8 registration statement filing.
(2)
Audit-related fees for 2020 and 2019 consisted of fees that principally relate to assurance and related services that are also performed by our independent registered public accounting firm. More specifically, these services include audits of employee benefit plan information, accounting consultations, due diligence and audits in connection with business development activity, internal control reviews and attest services related to financial reporting that are not required by statute or regulation.
(3)
Tax fees for 2020 and 2019 consisted of fees for tax compliance services, including the preparation of tax returns, and tax consulting services including technical research.
Policy on Pre-Approval of Services Provided by Independent Auditor
Pursuant to the requirements of the Sarbanes-Oxley Act of 2002, the terms of the engagement of KPMG are subject to specific pre-approval policies of the Audit Committee. All audit and permitted non-audit services to be performed by KPMG require pre-approval by the Audit Committee in accordance with pre-approval policies established by the Audit Committee. The procedures require all proposed engagements of KPMG for services of any kind be directed to the Companys Chief Financial Officer and then submitted for approval to the Audit Committee prior to the beginning of any service.
### Part IV
Item 15:Exhibits and Financial Statement Schedules
(a)
1. and 2.No financial statements or schedules are filed within this report on Form 10-K/A.
3.Exhibits
A list of the exhibits filed or furnished with this report on Form 10-K/A is provided in the Exhibit Index beginning on page 31 of this report.<|endoftext|>Shares until the earliest of (A)one year after the completion of our initial business combination and (B)subsequent to our initial business combination, (x)if the closing price of our ClassA ordinary shares equals or exceeds $12.00 per share (as adjusted for share sub-divisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30 trading day period commencing at least 150days after our initial business combination, or (y)the date on which we complete a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of our public shareholders having the right to exchange their ordinary shares for cash, securities or other property, and (ii)any of their private placementunits, private placement shares, private placement warrants and ClassA ordinary shares issued upon conversion or exercise thereof until 30days after the completion of our initial business combination. (e)by private sales or transfers made in connection with the consummation of a business combination at prices no greater than the price at which the founder shares, private placementunits or ClassA ordinary shares, as applicable, were originally purchased; provided, however, that in the case of clauses (a)through (f)these permitted transferees must enter into a written agreement agreeing to be bound by these transfer restrictions and the other restrictions contained in the letter agreement.
### Changes in Control
None.
Item13.
On September4, 2020, our sponsor paid $25,000, or approximately $0.007 per share, to cover for certain offering costs in consideration for 3,593,750 founder shares. On November18, 2020, our sponsor transferred an aggregate of 90,000 founder shares to each of our non-employee directors.
Our sponsor has purchased 410,000 private placement warrants for a purchase price of $4,100,000 in a private placement that occurred simultaneously with the closing of our Initial Public Offering. As such, our sponsors interest in the Initial Public Offering is valued at $4,100,000. Additionally, our sponsor purchased an additional 24,000 private placementunits on December1, 2020 as a result of the underwriters full exercise of the over-allotment option for a total of $240,000. The private placement warrants and ClassA ordinary shares issued upon the exercise or conversion thereof may not, subject to certain limited exceptions, be transferred, assigned or sold by the holder.
As more fully discussed in the section of this Annual Report on Form
10-K entitled Item10. -Conflicts of Interest, if any of our officers or directors becomes aware of a business combination opportunity that falls within the line of business of any entity to which he or she has then-current fiduciary or contractual obligations, he or she will honor his or her fiduciary or contractual obligations to present such opportunity to such entity.
, commencing on the date that our securities are first listed on NYSE American.
No compensation of any kind, including finders and consulting fees, will be paid to our sponsor, officers and directors, or any of their respective affiliates, for services rendered prior to or in connection with the completion of an initial business combination. However, these individuals will be reimbursed for any out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential partner businesses and performing due diligence on suitable business combinations. Our audit committee will review on a quarterly basis all payments that were made by us to our sponsor, officers, directors or our or their affiliates and will determine which expenses and the amount of expenses that will be reimbursed.
We do not expect to seek loans from parties other than our sponsor, members of our founding team or any of their affiliates as we do not believe third parties will be willing to loan such funds and provide a waiver against any and all rights to seek access to funds in our trust account.
After our initial business combination, members of our founding team who remain with us may be paid consulting, management or other fees from the combined company with any and all amounts being fully disclosed to our shareholders, to the extent then known, in the tender offer or proxy solicitation materials, as applicable, furnished to our shareholders.
We have entered into a registration and shareholder rights agreement pursuant to which our initial shareholders, and their permitted transferees, if any, are entitled to certain registration rights with respect to the private placement warrants, the securities issuable upon conversion of working capital loans (if any) and the ClassA ordinary shares issuable upon exercise of the foregoing and upon conversion of the founder shares. Further, our sponsor, upon and following consummation of an initial business combination, will be entitled to nominate three individuals for appointment to our board of directors, as long as the sponsor holds any securities covered by the registration and shareholder rights agreement.
The audit committee of our board of directors has adopted a charter, providing for the review, approval and/or ratification of related party transactions, which are those transactions required to be disclosed pursuant to Item404 of
RegulationS-K as promulgated by the SEC, by the audit committee.
Any member of the committee who has an interest in the related party transaction under review by the committee shall abstain from voting on the approval of the related party transaction, but may, if so requested by the chairperson of the committee, participate in some or all of the committees discussions of the related party transaction.
Item14.
Audit Fees
10-Q for the respective periods and other required filings with the SEC for the period from August21, 2020 (inception) through December31, 2020 totaled $78,280.
### Audit-Related Fees.
We did not pay Marcum for consultations concerning financial accounting and reporting standards for the period from August21, 2020 (inception) through December31, 2020.
Tax Fees
We did not pay Marcum for tax planning and tax advice for the period from August21, 2020 (inception) through December31, 2020.
### All Other Fees
We did not pay Marcum for other services for the period from August21, 2020 (inception) through December31, 2020.
Pre-Approval
### Policy
### PART IV
Item15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Its founder shares and any public shares in connection with the consummation of our initial business combination. Our directors and officers have agreed to waive the redemption rights with respect to public shares acquired by them (if any) following the initial public offering. Additionally, our sponsor agreed to waive its redemption rights with respect to its founder shares if we fail to consummate our initial business combination by November5, 2021. If we do not complete our initial business combination within such applicable time period, the proceeds of the sale of the private placement warrants will be used to fund the redemption of our public shares, and the private placement warrants will expire worthless. With certain limited exceptions, the founder shares will not be transferable, assignable or salable by our sponsor until the earlier of: (i)one year after the completion of our initial business combination; and (ii)the date on which we consummate a liquidation, merger, capital stock exchange, reorganization, or other similar transaction after our initial business combination that results in all of our stockholders having the right to exchange their shares of common stock for cash, securities or other property. Notwithstanding the foregoing, if the last sale price of our common stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any
30-trading day period commencing at least 150 days after our initial business combination, the founder shares will be released from the lock-up.
With certain limited exceptions, the private placement warrants and the common stock underlying such warrants, will not be transferable, assignable or salable by our sponsor until 30 days after the completion of our initial business combination. Due to the affiliation of our officers and certain of our directors with our sponsor and since our sponsor owns common stock and warrants, our officers and directors may have a conflict of interest in determining whether a particular target business is an appropriate business with which to effectuate our initial business combination.
In the event we seek to complete our initial business combination with such a company, we, or a committee of independent and disinterested directors, would obtain an opinion from an independent investment banking firm which is a member of FINRA or from an independent accounting firm, that such an initial business combination is fair to our company from a financial point of view. Commencing on November1, 2019, we have paid an amount equal to $10,000 per month to our sponsor or its affiliate for office space, utilities, secretarial support and administrative services provided to us.
In the event that we submit our initial business combination to our public stockholders for a vote, our sponsor has agreed to vote its founder shares and any public shares it may acquire during or after the initial public offering in favor of our initial business combination, and our officers and directors have also agreed to vote public shares purchased by them (if any) during or after the initial public offering in favor of our initial business combination.
### Director Independence
Singh, Henske, Reiss and Tinker are independent directors under NYSE rules and Rule
10A-3of the Exchange Act.
Item14.
The firm of Marcum LLP, or Marcum, acted as our independent registered public accounting firm during the years ended December31, 2020 and December31, 2019. The following is a summary of fees paid to Marcum LLP for services rendered.
Audit Fees
10-Q for the respective periods and other required filings with the SEC for the years ended December31, 2020 and 2019 totaled $53,560 and $52,000, respectively.
### Audit-Related Fees
We did not pay Marcum for consultations concerning financial accounting and reporting standards for the years ended December31, 2020 and 2019.
Tax Fees
We did not pay Marcum for tax planning and tax advice for the years ended December31, 2020 and 2019.
### All Other Fees
We did not pay Marcum for other services for the years ended December31, 2020 and 2019.
Audit Committee
### Pre-Approval
Policies and Procedures
### PART IV
Item15.
(a)
(1)
### Financial Statements:
Page
F-2
Balance Sheets
F-3
Statements of Operations
F-4
F-5
Statements of Cash Flows
F-6
F-7
(2)
None.
(3)
### Exhibits
The following exhibits are filed as part of, or incorporated by reference into, this Annual Report on Form
10-K.
No.
Description of Exhibit
1.1
Underwriting Agreement, dated October31, 2019, between the Company and Credit Suisse Securities (USA) LLC(2)
2.1
Agreement and Plan of Merger, dated as of February17, 2021(1)
3.1
Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on November1, 2019 (2)
3.2
4.1
Specimen Unit Certificate (2)
4.2
Specimen ClassA Common Stock Certificate (2)
4.3
Specimen Warrant Certificate (included in Exhibit 4.4)
4.4
Warrant Agreement, dated October31, 2019, between Continental Stock Transfer& Trust Company and the Company (2)
4.5
Description of Securities of (4)
10.1
Letter Agreement, dated October31, 2019, by and among the Company, its officers, directors and Osprey Sponsor II, LLC (2)
10.2
Investment Management Trust Agreement, dated October31, 2019, between Continental Stock Transfer & Trust Company and the Company(2)
10.3
Registration Rights Agreement, dated October31, 2019, among the Company and certain security holders (2)
10.4
Private Placement Warrants Purchase Agreement, dated October31, 2019, by and between the Company and Osprey Sponsor II, LLC (2)
10.5
Administrative Services Agreement, dated October31, 2019, between the Company and Osprey Sponsor II, LLC (2)
10.6
Form of Indemnity Agreement (3)
10.7
Promissory Note for expenses prior to initial public offering from Osprey Sponsor II, LLC to the Company (3)
14.1
Code of Business Conduct and Ethics (3)
21.1
31.1*
13a-14(a) and
31.2*
13a-14(a) and
32.1**
32.2**
101.INS*
XBRL Instance Document
101.CAL*
101.SCH*
101.DEF*
101.LAB*
101.PRE*
*
Filed herewith.
**
Furnished herewith.
(1)
8-K/A filed on February22, 2021.
(2)
8-K filed on November5, 2019.
(3)
### S-1, as amended (File
No.333-234180).
(4)
10-K filed on March6, 2020.
Item16.
FORM
10-K
SUMMARY.
Not applicable<|endoftext|>Intangible assets, net assigned to the THC Cannabis segment as of December 31, 2020 and December 31, 2019 was $28,790 and $31,422, respectively.
Goodwill assigned to the CBD Wellness segment as of December 31, 2020 and December 31, 2019 was $nil and $13,400, respectively. Intangible assets, net assigned to the CBD segment as of December 31, 2020 and December 31, 2019 was $nil and $3,725, respectively.
4FRONT VENTURES CORP.
### SUPPLEMENTARY CASH FLOW INFORMATION
Changes in non-cash working capital:
Cash paid for interest in for the years ended December 31, 2020 and 2019 was $6,655 and $1,023 respectively.
### INCOME TAXES
On July 31, 2019, the Company converted to a C corporation in the province of British Columbia for US tax purposes due to the reverse takeover of Cannex. Prior to July 31, 2019, the Company was classified as a Limited Liability Company (LLC) for US tax purposes. As such, prior to July 31, 2019, losses generated from operations were passed through to individual members.
The Companys statutory U.S. federal income tax rate is 21% The Companys provision for income taxes differs from applying the U.S. federal income tax rate to income before taxes primarily due to the effect of IRC Section 280E, state income taxes, certain share-based compensation, interest accretion on debt, and miscellaneous permanent differences.
Internal Revenue Code (IRC) Section 280E denies, at the U.S. federal level, deductions and credits attributable to a trade or business trafficking in controlled substances. Because the Company is subject to IRC Section 280E, the Company has computed its U.S. tax based on gross receipts less cost of goods sold. The tax provision for the years ended December 31, 2020 and 2019, have been prepared based on the assumption that cost of goods sold is a valid expense for income tax purposes.
Income tax expense is comprised of:
4FRONT VENTURES CORP.
A reconciliation of income taxes at statutory rates is as follows:
The components of deferred tax assets and liabilities were as follows:
Deferred tax assets and liabilities have been offset where they relate to income taxes levied by the same taxation authority and the Company has the legal right and intent to offset.
Movement in net deferred tax liabilities:
4FRONT VENTURES CORP.
Deferred taxes are provided as a result of temporary differences that arise due to the differences between the income tax values and the carrying amount of assets and liabilities. Deferred tax assets have not been recognized in respect of the following deductible temporary differences:
The Companys US net operating losses expire as follows:
The Companys Canadian non-capital income tax losses totaling $2,664 expire in 2039.
### DISPOSALS AND DISCONTINUED OPERATIONS
On January 21, 2020, the Company sold two management companies that controlled two Arkansas cannabis licenses to a third party for $2,000. A gain of $2,000 is included in gain on sale of subsidiaries in the consolidated statements of operations and comprehensive loss. The entities sold had no operations through the sale date.
On February 22, 2019, the Company acquired PHX Interactive LLC and control of Greens Goddess Inc., an Arizona cannabis dispensary. On March 20, 2020, the Company completed the divestiture of these entities through a sale to a third party for $6,000 in cash. On December 31, 2019, the Company tested the Greens Goddess goodwill for impairment and based on the sale price, recorded $1,092 in goodwill impairment. The Company paid a $348 fee to a lender in exchange for allowing the Company to sell the dispensary. This fee is recorded as a disposal cost and is netted with gains as part of gain on sale of subsidiaries in the Consolidated Statements of Operations and Comprehensive Loss.Revenue and expenses, gains or losses relating to the discontinuation of these operations have been eliminated from the profit or loss from the Companys continuing operations and are shown as part of a single line item for net loss from discontinued operations in the condensed consolidated statements of operations and comprehensive loss.
The following sales of the Companys dispensaries and management companies were recorded as gains on sale of subsidiaries in the condensed consolidated statements of operations and comprehensive loss.Revenue and expenses, and gains or losses relating to the discontinuation of these operations have been eliminated from profit or loss from the Companys continuing operations for all periods presented and are shown as part of a single line item in the condensed consolidated statements of operations and comprehensive loss.
On May 7, 2020, the Company completed the sale of the Mission Pennsylvania II LLC dispensary to a third party for $10,550 in cash.
On September 1, 2020, the Company completed the sale of the Companys 79.5% interest in Arkansas Natural Products Management LLC, that manages an Arkansas dispensary.The Company received $1,384 in cash and a note receivable for $1,065that was fully paid in 2021 On September 23, 2020, the Company completed the sale of one Maryland dispensary and two management companies that manage two additional Maryland dispensaries to a third party for $5,500in cash.
On September 30, 2020, the Company completed the sale of the Companys 80% interest in a Maryland management company that manages a Maryland dispensary.The buyer is the owner of the dispensary and paid $1,200 in cash.
4FRONT VENTURES CORP.
Below is a summary of the net income or loss from discontinued operations that is shown as a single line item for the years ended
### D e c ember 3
, 2020 and 2019:
Cash flows generated by the discontinued operations are reported as single line items in each section of the condensed consolidated interim statements of cash flows and are summarized as follows:
26.
### SUBSEQUENT EVENTS
Brookline, MA Construction
Subsequent to December 31, 2020, the Company announced that it continues to expand into the Massachusetts market and has received approval from the Brookline, Massachusetts Planning Board to start construction of a new Mission branded dispensary. The location will initially serve adult-use customers and is scheduled to open in Q2 2021.
The agreements provide for IIPR to acquire the land for $6,500 and fund the approximately $45,000 buildout of phase one of the facility which will be leased back to the Company in the form of a 20-year lease with two five-year extensions at the Companys option.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Require the exercising holder to pay the exercise price for each warrant being exercised.
at $0.10 per warrant upon a minimum of 30days prior written notice of redemption, provided that holders will be able to exercise their warrants, but only on a cashless basis, prior to redemption and receive that number of shares determined by reference to an agreed table based on the redemption date and the fair market value of ClassA common stock; if, and only if, the closing price of ClassA common stock equals or exceeds $10.00 per share (as adjusted) for any 20 trading days within the 30-tradingday period ending three trading days before the Company sends the notice of redemption to the warrant holders; and if the closing price of ClassA common stock for any 20 trading days within a 30-tradingday period ending on the third trading day prior to the date on which the Company sends the notice of redemption to the warrant holders is less than $18.00 per share (as adjusted), the Private Placement Warrants must also be concurrently called for redemption on the same terms as the outstanding Public Warrants, as described above.
The fair market value of ClassA common stock for the above purpose shall mean the volume-weightedaverage price of ClassA common stock during the 10 trading days ending on the third trading day immediately following the date on which the notice of redemption is sent to the holders of warrants. In no event will the warrants be exercisable in connection with this redemption feature for more than 0.361shares of ClassA common stock per warrant (subject to adjustment).
ClassA Common Stock
The Company is authorized to issue 380,000,000shares of ClassA common stock with a par value of $0.0001 per share. As of December 31,there were 20,650,000 ClassAcommon stockissued and outstanding, including 17,423,106 ClassAcommon stocksubject to possible redemption.
### ClassB Common Stock
The Company is authorized to issue 20,000,000shares of ClassB common stock with a par value of $0.0001 per share. On September30, 2020, the Company issued 10,062,500shares of ClassB common stock to the Sponsor. All shares and associated amounts have been retroactively restated to reflect the share surrenders. Of the 5,750,000shares of Class B common stock outstanding, up to 750,000shares were subject to forfeiture to the extent that the underwriters over-allotmentoption were not exercised in full or in part, so that the Initial Stockholders will collectively own 20% of the Companys issued and outstanding common stock after the Initial Public Offering.
Only holders of the ClassB common stock have the right to vote on the election of directors prior to the Business Combination. Holders of ClassA common stock and holders of ClassB common stock vote together as a single class on all other matters submitted to a vote of our stockholders except as required by law.
The ClassB common stock will automatically convert into ClassA common stock concurrently with or immediately following the consummation of the initial Business Combination on a one-for-onebasis, subject to adjustment for stock splits, stock dividends, reorganizations, recapitalizations and the like, and subject to further adjustment as provided herein. In the case that additional shares of ClassA common stock or equity-linkedsecurities are issued or deemed issued in connection with the initial Business Combination, the number of shares of ClassA common stock issuable upon conversion of all Founder Shares will equal, in the aggregate, on an as-convertedbasis, 20% of the total number of shares of ClassA common stock outstanding after such conversion (after giving effect to any redemptions of shares of ClassA common stock by Public Stockholders), including the total number of shares of ClassA common stock issued, or deemed issued or issuable upon conversion or exercise of any equity-linkedsecurities or rights issued or deemed issued, by the Company in connection with or in relation to the consummation of the initial Business Combination, excluding any shares of ClassA common stock or equity-linkedsecurities or rights exercisable for or convertible into shares of ClassA common stock issued, or to be issued, to any seller in the initial Business Combination and any private placement warrants issued to the Sponsor, officers or directors upon conversion of Working Capital Loans, provided that such conversion of Founder Shares will never occur on a less than one-for-onebasis.
### Preferred Stock
Note9Fair Value Measurements
(1)
Matures on May 27, 2021 and excludes $651 of investments held in cash within the Trust Account.
There were no transfers between levels of the hierarchy during the period from September 9, 2020 (inception) through December 31, 2020.
The estimated fair value of the Public Warrants and Private Placement Warrants was determined using Level 3 inputs. For the period since September 8, 2020 (inception) until December 31, 2020, the Company recognized a charge to the statement of operations resulting from an increase in the fair value of liabilities of approximately $1.8 million presented as change in fair value of derivative warrant liabilities on the accompanying statement of operations.
Inherent in a binomial / lattice model are assumptions related to expected stock-price volatility, expected life, risk-free interest rate and dividend yield.
The change in the fair value of the derivative warrant liabilities measured with Level 3 inputs for the period from September 9, 2020 (inception) through December 31, 2020 is summarized as follows:
### Note 10Income Taxes
There was no income tax expense for the period from September 9, 2020 (inception) through December 31, 2020.
The income tax provision (benefit) consists of the following for the period from September 9, 2020 (inception) through December 31, 2020:
A reconciliation of the statutory federal income tax rate (benefit) to the Companys effective tax rate (benefit) is as follows for the period from September 9, 2020 (inception) through December 31, 2020:
### Note11Subsequent Events
Management has evaluated subsequent events to determine if events or transactions occurring through March 29, 2021, the date the financial statements were available to be issued, require potential adjustment to or disclosure in the financial statements. Other than described below, no other events required recognition or disclosure.
(1) Incorporated by reference to the Initial 10-K filed on March 31, 2021.<|endoftext|>### EXPLANATORY NOTE
National Bankshares, Inc. 1 on Form 10-K/A (the Form 10-K/A) to amend its Annual Report on Form 10-K for the year ended December 31, 2020, filed with the Securities and Exchange Commission (the SEC) on March 18, 2021 (the Original Form 10-K and, together with the Form 10-K/A, the Form 10-K). This Form 10-K/A is being filed solely for the following reasons:
1.
To amend the cover page to uncheck the box with respect to whether the Company has filed a report on and attestation to its managements assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act by the registered public accounting firm that prepared or issued its audit report (the Section 404(b) box). The Section 404(b) box was inadvertently checked on the cover page of the Original Form 10-K.
3.
To amend and restate the exhibit list in Item 15 of Part IV to include Exhibit 4(ii), Description of National Bankshares, Inc.s Securities, in the exhibit list. The Company is filing such exhibit with this Form 10-K/A. In addition, because this Form 10-K/A is amending and restating Item 9A of Part II, currently dated certifications of the Companys principal executive officer and principal financial officer pursuant to Section302 of the Sarbanes-Oxley Act of 2002 are filed as Exhibits 31(i) and 31(ii) to this Form 10-K/A. The Company is not including new certificates under Section 906 of the Sarbanes-Oxley Act of 2002 as no financial statements are being filed with this Form 10-K/A.
Except as described above, this Form 10-K/A does not amend any other information set forth in the Original Form10-K, and the Company has not updated disclosures included therein to reflect any subsequent events. This Form10-K/A should be read in conjunction with the Original Form 10-K and with the Companys filings with the SEC subsequent to the Form 10-K.
### Part II
Item 9A. Controls and Procedures
The Company's management evaluated, with the participation of the Company's principal executive officer and principal financial officer, the effectiveness of the Company's disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as of the end of the period covered by this report. Based on that evaluation, the Company's principal executive officer and principal financial officer concluded that the Company's disclosure controls and procedures are effective as of December 31, 2020 to ensure that information required to be disclosed in the reports that the Company files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified by the Company's management, including the Company's principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.
There were no changes in the Company's internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) during the fourth quarter ended December 31, 2020 that have materially affected, or are reasonably likely to materially affect, the Companys internal control over financial reporting.
Because of the inherent limitations in all control systems, the Company believes that no system of controls, no matter how well designed and operated, can provide absolute assurance that all control issues have been detected
### To the Stockholders of National Bankshares, Inc.:
The consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America and reflect management's judgments and estimates concerning effects of events and transactions that are accounted for or disclosed.
Management is also responsible for establishing and maintaining adequate internal control over financial reporting. The Company's internal control over financial reporting includes those policies and procedures that pertain to the Company's ability to record, process, summarize and report reliable financial data. Management recognizes that there are inherent limitations in the effectiveness of any internal control over financial reporting, including the possibility of human error and the circumvention or overriding of internal control. Accordingly, even effective internal control over financial reporting can provide only reasonable assurance with respect to consolidated financial statement preparation. Further, because of changes in conditions, the effectiveness of internal control over financial reporting may vary over time.
In order to ensure that the Company's internal control over financial reporting is effective, management regularly assesses such controls and did so most recently for its financial reporting as of December 31, 2020. This assessment was based on criteria for effective internal control over financial reporting described in Internal Control Integrated Framework issued by the Committee of Sponsoring Organizations (COSO, 2013) of the Treadway Commission. Based on this assessment, management believes the Company maintained effective internal control over financial reporting as of December 31, 2020. Managements report was not subject to attestation by the Companys registered public accounting firm pursuant to rules of the Securities and Exchange Commission that permit the Company to provide only managements report in its annual report.
The Board of Directors, acting through its Audit Committee, is responsible for the oversight of the Company's accounting policies, financial reporting and internal control. The Audit Committee of the Board of Directors is comprised entirely of outside directors who are independent of management. The Audit Committee is responsible for the appointment and compensation of the independent registered public accounting firm and approves decisions regarding the appointment or removal of the Companys internal auditors. It meets periodically with management, the independent registered public accounting firm and the internal auditors to ensure that they are carrying out their responsibilities. The independent registered public accounting firm and the internal auditors have full and unlimited access to the Audit Committee, with or without management, to discuss the adequacy of internal control over financial reporting, and any other matter which they believe should be brought to the attention of the Audit Committee.
### Part IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Executive officers as a group. Unless otherwise noted, the mailing address for these stockholders is 222 West Washington Avenue, Madison, Wisconsin 53703.
Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to shares. Shares of common stock issuable upon the exercise of stock options or warrants exercisable within 60 days after January 31, 2021, which we refer to as Presently Exercisable Options or Presently Exercisable Stock Warrants, are deemed outstanding for computing the percentage ownership of the person holding the options but are not deemed outstanding for computing the percentage ownership of any other person. Unless otherwise indicated below, to our knowledge, all persons named in the table have sole voting and investment power with respect to their shares of common stock, except to the extent authority is shared by spouses under applicable law. The inclusion of any shares in this table does not constitute an admission of beneficial ownership for the person named below.
Sonic Foundry, Inc.
* less than 1%
(1)
Sonic believes that the persons named in the table above, based upon information furnished by such persons, except as set forth in note (5) where such information is based on a Schedule 13G, have, except as set forth in note (5), sole voting and dispositive power with respect to the number of shares indicated as beneficially owned by them.
(2)
Applicable percentages are based on 8,064,303 shares outstanding, adjusted as required by rules promulgated by the Securities and Exchange Commission.
(3)
Includes 18,000 shares subject to presently Exercisable Options.
Sonic Foundry, Inc.
(4)
Includes 232,558 shares subject to Presently Exercisable Common Stock Warrants. Information is based on information provided to the Company on January 15, 2021.
(5)
Information is based on Schedule 13G filed on January 7, 2019 by Albert C. Matt, President of Wealth Trust Axiom LLC. Based on such information, Wealth Trust Axiom LLC has sole dispositive power but not sole voting power with respect to such shares.
(6)
Includes 291,473 shares subject to Presently Exercisable Options.
(7)
Includes 35,000 shares subject to Presently Exercisable Options.
(8)
Includes 13,333 shares subject to Presently Exercisable Options.
(9)
Includes 160,160 shares subject to Presently Exercisable Options.
(10)
Includes 13,500 shares subject to Presently Exercisable Options.
(11)
(12)
Includes 16,000 shares subject to Presently Exercisable Options.
(13)
Includes 7,000 shares subject to Presently Exercisable Options.
(14)
Includes 6,000 shares subject to Presently Exercisable Options.
(15)
Includes an aggregate of shares subject to 577,466 Presently Exercisable Options.
ITEM 13.
Frederick H. Kopko, Jr., a director and stockholder of Sonic Foundry, is a partner in McBreen & Kopko. Pursuant to the 2008 Non-Employee Directors Plan, Mr. Kopko was granted options to purchase 20,000 shares of Common Stock at exercise prices ranging from $1.39 to $14.83. During fiscal 2020, we paid the Chicago law firm of McBreen & Kopko certain compensation for legal services rendered subject to standard billing rates.
### Director Independence
The Board has made a subjective determination as to each independent director that no relationship exists that, in the opinion of the Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In making these determinations, the Board reviews information provided by the directors in an annual questionnaire with regard to each directors business and personal activities as they relate to the Company. Based on this review, the Board has affirmatively determined that Nelson A. Murphy, David F. Slayton and Brian T. Wiegand are independent.
Related Person Transaction
The Board has adopted a Related Person Transaction Policy (the Policy), which is a written policy governing the review and approval or ratification of Related Person Transactions, as defined in SEC rules.
Under the Policy, each of our directors and executive officers must notify the Chairman of the Audit Committee in writing of any new potential Related Person Transaction involving such person or an immediate family member. The Audit Committee will review the relevant facts and circumstances and will approve or ratify the transaction only if it determines that the transaction is not inconsistent with, the best interests of the Company. The Related Party Transaction must then be approved by the independent directors. In determining whether to approve or ratify a Related Person Transaction, the Audit Committee and the independent directors may consider, among other things, the benefits to the Company; the impact on the directors independence (if the Related Person is a director or an immediate family member); the terms of the transaction;
Sonic Foundry, Inc.
ITEM 14.
The Company, upon the recommendation of its audit committee has selected Wipfli LLP (Wipfli) as its independent auditor for the fiscal year ending September 30, 2020.
Audit services performed by Wipfli for Fiscal 2020 consisted of the examination of our financial statements, review of fiscal quarter results, and services related to filings with the Securities and Exchange Commission (SEC). We also retained Wipfli to perform certain audit related services associated with the audit of our benefit plan.
All fees paid to Wipfli were reviewed, considered for independence, and upon determination that such payments were compatible with maintaining such auditors independence, approved by Sonics audit committee prior to performance.
### Fiscal Year 20
20 and 2019
### Audit Firm Fee Summary
During fiscal years 2020 and 2019, we retained our principal accountants to provide services in the following categories and amounts:
All of the services described above were approved by Sonics audit committee prior to performance. The Audit Committee may, in its discretion, delegate to one or more of its members the authority to pre-approve any audit or non-audit services to be performed by the independent auditors, provided that any such approvals are presented to the Audit Committee at its next scheduled meeting.
PART IV
ITEM 15.
NUMBER
DESCRIPTION
31.1
31.2
Section 302 Certification of Chief Financial Officer and Secretary
Section 906 Certification of Chief Executive Officer and Chief Financial Officer and Secretary
Sonic Foundry, Inc.<|endoftext|>[
Green Thumb Industries Inc
]
### EXPLANATORY NOTE
This Amendment No. 3 on Form 10-K/A (this Amendment) amends the Annual Report on Form10-K of Green Thumb Industries Inc. (the Company, Green Thumb, we or us) for the fiscal year ended December31, 2020, filed with the Securities and Exchange Commission (the SEC) on March18, 2021 (the March18 10-K), amended by Amendment No. 1 on Form10-K/A filed with the SEC on March 19, 2021 (the First Amendment) and amended by Amendment No. 2 on Form10-K/A filed with the SEC on April30, 2021 (the Second Amendment). The March18 10-K as amended by the First Amendment and Second Amendment is referred to herein as the Original 10-K. This Amendment is being filed solely for the purpose of revising Item9A Controls and Procedures to supplement the disclosure relating to the ; to include the previously omitted Managements Report on Internal Control Over Financial Reporting and to revise Exhibits31.1 and 31.2 to include certain wording required by 601(b)(31) of RegulationS-K which was inadvertently omitted by the Company in the Original 10-K. Such revised Exhibits have been included in this Amendment No. 3 of the Annual Report on Form10-K/A as Exhibits31.5 and 31.6. Because no financial statements are included with this Amendment No. 3, paragraph 3 of the certifications in Exhibits31.5 and 31.6 has been omitted.
In addition, as required by Rule12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by the registrants principal executive officer and principal financial officer are filed as exhibits to this Amendment.
No other changes have been made to the Original 10-K. This Amendment does not reflect events that may have occurred subsequent to the original filing date, and does not modify or update in any way the disclosures made in the Original 10-K.
### ITEM9A. CONTROLS AND PROCEDURES
The term disclosure controls and procedures, as defined in Rules13a-15(e)and 15d-15(e)under the Securities Exchange Act of 1934, as amended (the Exchange Act) refers to controls and procedures that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SECs rulesand forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the companys management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.Our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and our management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Due to the inherent limitations of control systems, not all misstatements may be detected. These inherent limitations include the realities that judgments in decision-making can be faulty and that breakdowns can occur because of a simple error or mistake.Our disclosure controls and procedures are designed to provide reasonable assurance of achieving their control objectives.
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures as of December31, 2020, the end of the period covered by this Amendment No.3 to the Annual Report on Form10-K. Based upon such evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures were effective at the reasonable assurance level as of such date.
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule13a-15(f)and 15d-15(f)of the Exchange Act). Internal control over financial reporting is a process designed by, or under the supervision of, our Chief Executive Officer and Chief Financial Officer, and effected by our Board of Directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that:
Pertain to the maintenance of records that accurately and fairly reflect in reasonable detail the transactions and dispositions of the assets of our company;
and
Provide reasonable assurances regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material adverse effect on our financial statements.
Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December31, 2020 based on the criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission, or COSO. Based on our evaluation under the criteria set forth in Internal Control - Integrated Framework issued by the COSO, our management concluded our internal control over financial reporting was effective as of December31, 2020.
Internal control over financial reporting has inherent limitations.
This Amendment No. 3 to the Annual Report on Form 10-K/A does not include an attestation report of our independent registered public accounting firm regarding internal control over financial reporting under Section404(b) of the Sarbanes-Oxley Act of 2002 due to the Companys status as an emerging growth company.
There were no changes in our internal control over financial reporting that occurred during the fiscal quarter ended December31, 2020 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
### Part IV
Item15.
(a)
10-K.
(b)
31.5
31.6
32.3
Certification of Chief Executive Officer pursuant to Section1350 of Chapter63 of the United States Code.
32.4
Certification of Chief Financial Officer pursuant to Section 1350 of Chapter 63 of the United States Code.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
As of that date. If we are required to retroactively adjust provisional amounts that we have recorded for the fair value of assets and liabilities in connection with an acquisition, these adjustments could materially impact our results of operations and financial position. Estimates and assumptions that we must make in estimating the fair value of future acquired technology, user lists and other identifiable intangible assets include future cash flows that we expect to generate from the acquired assets. If the subsequent actual results and updated projections of the underlying business activity change compared with the assumptions and projections used to develop these values, we could record impairment charges. In addition, we have estimated the economic lives of certain acquired assets and these lives are used to calculate depreciation and amortization expenses. If our estimates of the economic lives change, depreciation or amortization expenses could be accelerated or slowed, which could materially impact our results of operations.
The SBTech Acquisition is accounted for under ASC 805. Pursuant to ASC 805, Old DK was determined to be the accounting acquirer. Refer to Note 3
Business Combination of our Consolidated Financial Statements included elsewhere in this Annual Report for more information. In accordance with the acquisition method, we recorded the fair value of assets acquired and liabilities assumed from SBTech. The allocation of the consideration to the assets acquired and liabilities assumed is based on various estimates. As of December31, 2020, we finalized our preliminary purchase price allocation.
### Stock-based Compensation
Our historical and outstanding stock-based compensation awards, including the issuances of options and other stock awards under our equity compensation plans, have typically included service-based, performance-based or market-based vesting conditions. For awards with only service-based vesting conditions, we record compensation cost for these awards using the straight-line method less an assumed forfeiture rate. For awards with performance-based or market-based vesting conditions, we recognize compensation cost on a tranche-by-tranche basis (the accelerated attribution method).
Stock-based compensation expense is measured based on the grant-date fair value of the stock-based awards and is recognized over the requisite service period of the awards. Following the Business Combination, the fair value of our ClassA common stock is now determined based on the quoted market price. Prior to the Business Combination, our management and board of directors considered various objectives and subjective factors to determine the fair value of Old DKs common stock as of each grant date, including the value determined by a third-party valuation firm. These factors included, among other things, financial performance, capital structure, forecasted operating results and market performance analyses of similar companies in our industry. To estimate the fair value of stock option awards, the Black-Scholes model was used and a Monte Carlo simulation was used to determine the fair value of grants with market-based conditions. Both the Black-Scholes model and the Monte Carlo simulation requires management to make a number of key assumptions, including expected volatility, expected term, risk-free interest rate and expected dividends. treasury notes with a life that approximates the expected term. The expected term assumption used in the Black-Scholes model represents the period of time that the options are expected to be outstanding and is estimated using the midpoint between the requisite service period and the contractual term of the option. For 2020, we recorded $325.0 million of stock-based compensation expense.
The assumptions underlying these valuations represent managements best estimates, which involve inherent uncertainties and the application of management judgment. As a result, if factors or expected outcomes change and our management uses significantly different assumptions or estimates, our stock-based compensation expense for future periods could be materially different, including as a result of adjustments to stock-based compensation expense recorded for prior period.
Item 7A. Quantitative and Qualitative Disclosures about Market Risks.
We are exposed to market risks in the ordinary course of our business. These risks primarily include interest rate risk, foreign currency risk and inflation risk as follows:
### Interest Rate Risk
We had cash and cash equivalents totaling $1,817.3 million and $76.5 million at December31, 2020 and December31, 2019, respectively. Our cash and cash equivalents consist of highly liquid, unrestricted savings, checking and other bank accounts. The Company also utilizes short-term certificates of deposit, each with a duration of three months or less. The primary objectives of our investment activities are to preserve principal and provide liquidity without significantly increasing risk. Due to the relatively short-term nature of our portfolio, a hypothetical 100 basis point change in interest rates would not have a material effect on the fair value of our portfolio for the periods presented.
Foreign Currency Risk
As a result of the Business Combination, we are exposed to foreign currency exchange risk related to our transactions and our translation of subsidiaries balances that are denominated in currencies other than the U.S. We are required to translate a significant portion of our B2B segment results from Euros, the functional currency of most of SBTechs non-U.S. subsidiaries, to U.S. dollars, our functional currency. SBTech was consolidated in our results only from April24, 2020, and consequently our exposure to these risks was not material in 2020. However, we expect it to increase in future periods. We seek to naturally hedge our foreign exchange transaction exposure by matching the transaction currencies for our cash inflows and outflows. Currently, we do not otherwise hedge our foreign exchange exposure but may consider doing so in the future.
### Inflation Risk
We do not believe that inflation has had a material effect on our business, financial condition, or results of operations. If our costs become subject to significant inflationary pressures, we may not be able to fully offset such higher costs through price increases. Our inability or failure to do so could harm our business, financial condition, and operating results.
Item 8.
See financial statements included in Item 15<|endoftext|>With the Securities and Exchange Commission on February11, 2021. Renaissance TechnologiesLLC and Renaissance Technologies Holdings Corporation, each reported that, Renaissance TechnologiesLLC and Renaissance Technologies Holdings Corporation has sole power to direct the voting and disposition of
2,522,573 shares
(7)
Represents 45,893 shares held by Mr.Austin.
(8)
Represents 3,789 shares held by Ms.Callahan, 7,993 shares issuable to Ms.Callahan upon exercise of options that are currently exercisable, and 3,305 shares issuable to Ms.Callahan upon vesting of restricted stock units within 60days of March31, 2021.
(9)
Represents 4,711 shares held by Mr.Chestnutt.
(10)
Represents 12,989 shares held by Ms.Choka.
(12)
Represents 92,537 shares held by Mr.Finley and 15,607 shares issuable to Mr.Finley upon vesting of restricted stock units within 60 days of March31, 2021.
(14)
Represents 391,885 shares held by Mr.Hovenier.
(15)
Represents 72,398 shares held by Mr.Jones.
(16)
Represents 42,546 shares held by Ms.Misunas.
(17)
Represents 32,791 shares held by Dr.Peterson and 7,928 shares issuable to Dr.Peterson upon vesting of restricted stock units within 60days of March31, 2021.
(18)
Represents 86,630 shares held by Mr.Rosenzweig.
(19)
Represents 4,028 shares held by Mr.Zeto and 4,691 shares issuable to Mr.Zeto upon vesting of restricted stock units within 60 days of March31, 2021.
SECTION16(a)BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section16(a)of the Exchange Act requires our directors, executive officers, and holders of more than 10% of our Common Stock to file reports regarding their ownership and changes in ownership of our securities with the SEC, and to furnish us with copies of all Section16(a)reports that they file.
We believe that during the fiscal year ended December31, 2020, our directors, executive officers, and greater than 10% stockholders complied with all applicable Section16(a)filing requirements, with the exception of a Form4 filing for Terry Jones related to vesting and settlement of an RSU, which occurred on June3, 2020, and which was inadvertently filed late on February18, 2021
In making these statements, we have relied upon a review of the copies of Section16(a)reports furnished to us and the written representations of our directors, executive officers, and greater than 10% stockholders.
Item13.
As provided by our Audit Committee Charter, our Audit Committee is responsible for reviewing and approving in advance any related party transaction. Neither the Board of Directors nor the Audit Committee has adopted specific policies or guidelines relating to the approval of related party transactions. The members of our Audit Committee determine whether to approve a related party transaction in the exercise of their fiduciary duties as directors.
In addition to the compensation arrangements with directors and named executive officers described elsewhere in this proxy statement, since January1, 2020, there has not been a transaction or series of related transactions in which we were or are a party involving an amount in excess of $120,000 and in which any director, executive officer, holder of more than 5% of our capital stock, or any member of the immediate family or person sharing the household with any of these individuals (other than tenants or employees), had or will have a direct or indirect material interest.
Indemnification Agreements
We have entered into an indemnification agreement with each of our directors and executive officers. The indemnification agreements and our certificate of incorporation and bylaws require us to indemnify our directors and executive officers to the fullest extent permitted by Delaware law.
### Item14.
The following table represents aggregate fees billed or to be billed to the Company for the fiscal years ended December31, 2020 and December31, 2019 by PricewaterhouseCoopersLLP, our principal accountant.
(1)
For professional services rendered for the audits of annual consolidated financial statements (including the review of quarterly interim consolidated financial statements), statutory audits required for certain of our non-U.S. subsidiaries, consents, assistance and review of documents filed with the SEC and other services normally provided in connection with statutory or regulatory filings or engagements. For the years ended December31, 2020 and 2019, the audit fee includes fees associated with services provided in connection with the audit of our internal control over financial reporting, as required under Section404 of the Sarbanes Oxley Act of 2002.
(2)
For the year ended December31, 2019, tax fees are related to international tax compliance.
All fees described above were pre-approved by the Audit Committee.
The Audit Committees policy is to pre-approve all audit and permissible non-audit services rendered by PricewaterhouseCoopersLLP, our independent registered public accounting firm. The Audit Committee pre- approves specified services in defined categories of audit services, audit- related services and tax services up to specified amounts, as part of the Audit Committees approval of the scope of the engagement of PricewaterhouseCoopersLLP or on an individual case-by-case basis before PricewaterhouseCoopersLLP is engaged to provide a service. The Audit Committee has determined that the rendering of the services other than audit services by PricewaterhouseCoopersLLP is compatible with maintaining the principal accountants independence.
PARTIV
### Item15. Exhibits
(a)
No financial statements are filed with this Amendment No.1 to our Annual Report onForm10-K.See Index to Consolidated Financial Statements at Item 8 of the Original Form10-K.
(3)
Exhibits
T he following is a list of exhibits filed as part of this Amendment No.1 to our Annual Report on Form10-K.
(b)The following exhibits are filed as part of, or incorporated by reference into, this Amendment No.1 to our Annual Report on Form10-K:
*
### Furnished herewith.
Portions of this exhibit (indicated by asterisks) have been omitted pursuant to an order granting confidential treatment. These portions have been submitted separately to the Securities and Exchange Commission.
#
Certain confidential portions of this exhibit were omxitted by means of marking such portions with an asterisk because the identified confidential portions (i)are not material and (ii)would be competitively harmful if publicly disclosed.
Indicates a management contract or compensatory plan.
### Item16. Form10-K Summary
Not applicable.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Therein.
On February10, 2016, in connection with the effectiveness of our Chapter 11 bankruptcy plan, we entered into a registration rights agreement with certain of our holders (the Registration Rights Agreement), which provides the holders party thereto certain registration rights. The Anchorage Funds are party to the Registration Rights Agreement. Messrs. Gordon and Aubrey, members of the Companys board of directors, are managing directors of Anchorage, the investment advisor to the Anchorage Funds.
The provides for the registration of certain securities of the Company issued to any holder or subsequently acquired in the open market by any holder and requires the Company to file a shelf registration statement on or prior to the ninetieth day following the date on which our Chapter 11 bankruptcy plan becomes effective, and to include such securities each holder party thereto requests inclusion therein, subject to certain exceptions, conditions and limitations. These registration rights include Form S-3 registration rights, demand registration and piggyback registration rights, subject, in each case, to the terms and conditions identified in the Registration Rights Agreement. The Company has agreed to pay all registration expenses under the and agreed to indemnify the holders party thereto against certain liabilities.
The Company has been in compliance with the requirements of the Registration Rights Agreement.
### VDC
In connection with the effectiveness of our Chapter 11 bankruptcy plan, the Company committed to enter into a registration rights agreement with Vantage Drilling Company providing for the filing by the Company of a registration statement relating to the Companys ordinary shares issued to Vantage Drilling Company upon emergence from bankruptcy on account of the secured promissory note previously issued to Vantage Drilling Company in the course of the restructuring process (the VDC Shares).
On April26, 2017, we entered into a registration rights agreement with Vantage Drilling Company and the joint official liquidators thereof (the VDC Registration Rights Agreement). The VDC provides for the registration of the VDC Shares and requires the Company to file a shelf registration statement on or prior to the ninetieth day following the date of such agreement. The Company has agreed to pay all registration expenses under the VDC and agreed to indemnify Vantage Drilling Company against certain liabilities.
The Company has satisfied all of its obligations under the VDC Registration Rights Agreement.
### Weatherford International
Mr. Thomas R. Bates, Jr. is the chairman and a director of the Company and in December 2019, was elected as chairman of Weatherford International, a provider of equipment and services to the Company, from December 2019 until June 30, 2020. The Company engaged in various transactions in the ordinary course of business with Weatherford International for the purchase of certain equipment and services during Mr. Bates tenure as Chairman of Weatherford International, which totaled $0.3 million for the six months ended June 30, 2020. These transactions were on an arms-length basis and Mr. Bates was not involved or had an interest in such transactions in any way. Our Audit Committee determined that Mr. Bates is independent, applying the standards defined by the NYSE MKT and reviewing in connection with the Conflict of Interest principles contained our Code of Conduct.
Our Policies Regarding Review, Approval or Ratification of Related-Party Transactions
The Audit Committee is responsible for approving related party transactions. The Audit Committee operates under a written charter pursuant to which all related party transactions are reviewed for potential conflict of interest situations in accordance with the Conflict of Interest principles contained our Code of Conduct, which is available at www.vantagedrilling.com on the Corporate Governance page under the link Vantage Code of Business Conduct and Ethics. Such transactions must be approved by the Audit Committee prior to consummation. The Audit Committee charter is available at www.vantagedrilling.com on the Corporate Governance page under the link Audit Committee Charter. This Internet address is provided for informational purposes only and is not intended to function as a hyperlink. Our website and the information contained in it or connected to it shall not be deemed to be included or incorporatedherein.
### Director Independence
To evaluate the independence of individual directors, the Board of Directors has elected to use the definition of independence as defined by the NYSE MKT. The Board of Directors has determined that the following members are independent: Messrs. Bates, Larsen and Wells.
Item14.
### P rincipal Accounting Fees and Services
Independent Public Accountant Fees
BDO USA, LLP (BDO) was engaged as the Companys independent registered public accounting firm for the years ended December31, 2019 and 2020. BDO billed the fees set forth below:
(1) Audit Fees include fees billed for professional services rendered for the audit of our annual consolidated financial statements, the review of the interim consolidated financial statements included in our quarterly reports and other related services, including registration statements.
(2) Audit-Related Fees include fees billed for professional services rendered for the audit of our benefit plans.
Policy on Audit Committee Pre-Approval of Audit and Non-Audit Services of Independent Accountant
The Audit Committee has adopted certain policies and procedures regarding permitted audit and non-audit services and the annual pre-approval of such services. Each year, the Audit Committee will ratify the types of audit and non-audit services of which management may wish to avail itself, subject to pre-approval of specific services. Each year, management and the independent registered public accounting firm will jointly submit a pre-approval request, which will list each known and/or anticipated audit and non-audit service for the upcoming calendar year and which will include associated budgeted fees. The Audit Committee will review the requests and approve a list of annual pre-approved non-audit services. Any additional interim requests for additional non-audit services that were not contained in the annual pre-approval request will be considered during quarterly Audit Committee meetings. All services provided by BDO during the years ended December31, 2019 and December 31, 2020 were pre-approved by our Audit Committee.
PAR
### T IV
Item15.<|endoftext|>Information as of December31, 2020 about shares of our common stock that may be issued upon the exercise of options, warrants and rights under our 2019 Incentive Plan:
(1)
Represents 150,052 shares of common stock issuable pursuant to restricted stock units (RSUs). On June 30, 2022 and 2023, the shares of common stock underlying these units vest, if and to the extent specified performance ( i.e., average annual return on capital) and/or market ( i.e.
, average annual total stockholder return) conditions are satisfied by such dates. Excludes 73,750 shares of common stock underlying RSUs issued pursuant to our 2016 Incentive Plan that vest in 2021 subject to satisfaction of such performance and market conditions.
(2)
Does not give effect to 151,500 shares of restricted stock granted January 6, 2021 pursuant to our 2019 Incentive Plan.
### Item
13.
The information required by this Item13 will be included in our proxy statement for our 2021 annual meeting of stockholders, to be filed with the SEC not later than April 30, 2021 and is incorporated herein by reference.
### Item
14.
The information required by this Item14 will be included in our proxy statement for our 2021 annual meeting of stockholders, to be filed with the SEC not later than April 30, 2021 and is incorporated herein by reference.
### PART IV
Item
15.
(a)
(1)
The following financial statements of the Company are included in this Annual Report on Form10-K:
### F-1 through F-2
Statements:
Consolidated Balance Sheets
F-3
F-4
F-5
F-6
F-7 through F-8
F-9 through F-37
(2)
ScheduleIIIReal Estate and Accumulated Depreciation
F-38 through F-41
All other schedules are omitted because they are not applicable or the required information is shown in the consolidated financial statements or the notes thereto.
(b)Exhibits:
1.1
### Equity Offering Sales Agreement, dated
August 19, 2020 by and between One Liberty Properties, Inc., D.A. Davidson & Co. and B. Riley FBR, Inc. (incorporated by reference to Exhibit 1.1 to our Current Report on Form 8-K filed on August 19, 2020
).
3.1
Articles of Amendment and Restatement of One Liberty Properties,Inc.
3.2
Amended and Restated By-Laws of One Liberty Properties,Inc. (incorporated by reference to Exhibit3.2 to our Current Report on Form8-K filed on July 9, 2020).
4.1
Form of Common Stock Certificate (incorporated by reference to Exhibit4.1 to our Registration Statement on FormS-2, Registration No.333-86850, filed on April24, 2002 and declared effective on May24, 2002).
4.2*
One Liberty Properties,Inc. 2012 Incentive Plan (incorporated by reference to Exhibit4.1 to our Current Report on Form8-K filed on June12, 2012).
4.3*
One Liberty Properties,Inc. 2016 Incentive Plan (incorporated by reference to Exhibit10.1 to our Quarterly Report on Form10-Q for the quarter ended June30, 2016).
4.4*
One Liberty Properties, Inc. 2019 Incentive Plan (incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K filed June 13, 2019).
4.5
10.1
Third Amended and Restated Loan Agreement dated as of November 9, 2016, between VNB New York, LLC, Peoples United Bank, Bank Leumi USA and Manufacturers and Traders Trust Company, as lenders, and One Liberty Properties, Inc. (the Loan Agreement) (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed November 10, 2016).
10.2
First Amendment to Loan Agreement dated July 1, 2019 (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2019).
10.3
Second Amendment to Loan Agreement dated as of July 8, 2020 (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed July 14, 2020).
10.4
Third Amendment to Loan Agreement dated as of March 3, 2021.
10.5*
Compensation and Services Agreement effective as of January1, 2007 between One Liberty Properties,Inc. (incorporated by reference to Exhibit10.1 to our Current Report on Form8-K filed on March14, 2007).
10.6*
F irst Amendment to Compensation and Services Agreement effective as of April1, 2012 between One Liberty Properties,Inc. (incorporated by reference to Exhibit10.1 to our Quarterly Report on Form10-Q for the quarter ended March31, 2012
).
10.7*
F orm of Restricted Stock Award Agreement for the 2012 Incentive Plan (incorporated by reference to Exhibit10.9 to our Annual Report on Form10-K for the year ended December31, 2013
).
10.8*
F orm of Restricted Stock Award Agreement for awards granted in 2017 pursuant to the 2016 Incentive Plan (incorporated by reference to Exhibit10.12 to our Annual Report on Form10-K for the year ended December31, 2016
).
10.9*
F orm of Performance Award Agreement for grants in 2017 pursuant to the 2016 Incentive Plan (incorporated by reference to Exhibit10.1 to our Quarterly Report on Form10-Q for the quarter ended September30, 2017
).
10.10*
F orm of Restricted Stock Award Agreement for awards granted in 2018 and 2019 pursuant to the 2016 Incentive Plan (incorporated by reference to Exhibit10.7 of our Annual Report on Form10-K for the year ended December31, 2017
).
10.11*
Form of Performance Award Agreement for grants in 2018 pursuant to the 2016 Incentive Plan (incorporated by reference to Exhibit10.1 to our Quarterly Report on Form10-Q for the quarter ended June30, 2018).
10.12*
Form of Performance Award Agreement for grants in 2019 pursuant to the 2019 Incentive Plan (incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2019).
10.13*
Form of Restricted Stock Award Agreement for awards granted in 2020 pursuant to the 2019 Incentive Plan (incorporated by reference to Exhibit 10.11 to our Annual Report on Form 10-K for the year ended December 31, 2019).
21.1
23.1
Consent of Ernst& YoungLLP
31.1
31.2
32.1
32.2
The following financial statements, notes and schedule from the One Liberty Properties, Inc. Annual Report on Form 10-K for the year ended December 31, 2020 filed on March 12, 2021, formatted in Inline XBRL: (i) Consolidated Balance Sheets; (ii) Consolidated Statements of Income; (iii) Consolidated Statements of Comprehensive Income; (iv) Consolidated Statements of Changes in Equity; (v) Consolidated Statements of Cash Flows; (vi) Notes to the Consolidated Financial Statements; and (vii) Schedule III Consolidated Real Estate and Accumulated Depreciation.
*
The file number for all the exhibits incorporated by reference is 001- 09279 other than exhibit4.1 whose file number is 333-86850.
### Item
16. Form10-K Summary
Not applicable.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
To 16,180,821 of the shares.
(1
)
Beneficial ownership information is based on information contained in Schedule 13G filed with the SEC on January 8, 2021, by FMR LLC.
________________________
(1)Represents awards that were granted by Aimco prior to the Separation, which by operation of the Employee Matters Agreement adopted in connection with the Separation, these awards also became outstanding at AIR. These awards include unvested restricted stock and LTIP awards and unexercised stock options. Performance-based awards are included assuming maximum performance.
(2)
The weighted average exercise price is calculated based solely on the outstanding stock options.
As a result of the Separation the exercise price was adjusted by a ratio specified in the Employee Matters Agreement and reflects exercise price for a share of AIR Common Stock.
ITEM 13.
AIR recognizes that related person transactions can present potential or actual conflicts of interest and create the appearance that Aimcos decisions are based on considerations other than the best interests of AIR and its stockholders. Accordingly, as a general matter, it is AIRs preference to avoid related person transactions. Nevertheless, AIR recognizes that there are situations where related person transactions may be in, or may not be inconsistent with, the best interests of AIR and its stockholders. The Nominating and Corporate Governance Committee will review transactions, arrangements or relationships in which (1)the aggregate amount involved will or may be expected to exceed $100,000 in any calendar year, (2)AIR (or any AIR entity) is a participant, and (3)any related party has or will have a direct or indirect interest (other than an interest arising solely as a result of being a director of another corporation or organization that is a party to the transaction or a less than 10percent beneficial owner of another entity that is a party to the transaction).
The Board has determined that to be considered independent, an outside director may not have a direct or indirect material relationship with AIR or its subsidiaries (directly or as a partner, stockholder or officer of an organization that has a relationship with the Company). A material relationship is one that impairs or inhibits, or has the potential to impair or inhibit, a directors exercise of critical and disinterested judgment on behalf of AIR and its stockholders. In determining whether a material relationship exists, the Board considers all relevant facts and circumstances, including whether the director or a family member is a current or former employee of the Company, family member relationships, compensation, business relationships and payments, and charitable contributions between AIR and an entity with which a director is affiliated (as an executive officer, partner or substantial stockholder). In evaluating Ms.Sperlings independence, the Board considered that the Company is presently engaged with Trammell Crow Company, or TCC, in connection with a development, in an arrangement whereby TCC is providing services on a fee basis. The Board took into account the fact that Ms.Sperling is an independent contractor with TCC and that she is not involved in the project, that her compensation is not tied to the project, and that the fee that may be earned by TCC is fixed and limited in nature, may be paid over three years, if earned, and in any one year and in the aggregate is immaterial to both AIR and TCC.
Consistent with these considerations, the board affirmatively has determined that Messrs. Nelson, Sperling and Tran are independent directors.
ITEM 14.
###
Principal Accountant Fees
(1)
The increase audit fees in 2020 as compared to 2019 is related primarily to the work associated with the Separation.
(2)
Tax compliance fees consist primarily of income tax return preparation and income tax return review fees related to the income tax returns of the Company, the AIR Operating Partnership, and certain Company subsidiaries and affiliates.
(
)
(
)
Other fees consist of amounts attributable to due diligence pertaining to acquisitions.
In selecting Ernst& Young LLP to perform tax compliance and tax consulting services, the Audit Committee evaluated the efficiency and expertise brought by Ernst& Young LLP and concluded that such engagement was in the best interest of the Company and its stockholders. The Audit Committee considered that the Companys current and continuing qualification as a real estate investment trust involves the application of highly technical and complex provisions of the Internal Revenue Code and depends on the Companys ability to meet the various requirements imposed by the Internal Revenue Code, through actual operating results, distribution levels, and diversity of stock ownership. The Audit Committee also specifically considered the amount of the fees as compared to the Companys overall engagement and as compared to Ernst& Young LLPs overall book of business and concluded that such engagement by the Company would have no negative bearing on Ernst& Young LLPs independence.
In its pre-approval of such tax services in accordance with the policies outlined below, the Audit Committee gave appropriate consideration to the applicable independence rules of the SEC and PCAOB. Specifically, the Audit Committee considered:
The SECs three basic principles of independence with respect toservices provided by auditors, violations of which would impair the auditorsindependence: (1)an auditor cannot function in the role of management;(2) an auditor cannot audit his or her own work; and (3)an auditorcannot serve in an advocacy role for his or her client;
The non-audit services specifically prohibited under the SECs auditor independence rules:
Bookkeeping or other services related to the accountingrecords or financial statements of the audit client;
Appraisal or valuation services, fairness opinions, orcontribution-in-kind reports;
### Actuarial services;
Management functions or human resources;
Broker or dealer, investment adviser, or investment bankingservices; and
Legal services and expert services unrelated to the audit.
### The following rules of the PCAOB:
3521- Contingent Fees;
3522- Tax Transactions; and
3524- Audit Committee Pre-approval of Certain Tax Services.
In addition, The Audit Committee considered the SECs Release,
Strengthening the Commissions Requirements Regarding AuditorIndependence
, in which the SEC reiterated its long-standing position that anaccounting firm can provide tax services to its audit clients withoutimpairing the firms independence.<|endoftext|>19, 2018.
(2)
### Mr. Kemp was appointed on September 11, 2018.
There are no compensatory plans or arrangements with respect to our executive officers resulting from their resignation, retirement or other termination of employment or from a change of control.
STOCK OPTION PLAN
On November 10, 2011, our directors approved the adoption of our 2011 Stock Option Plan, which permits our company to issue options to acquire up to 2,500,000 shares of our common stock by directors, officers, employees and consultants of our company.
### STOCK OPTIONS
During our fiscal year ended November 30, 2019 there were no options granted to our named officers or directors.
No equity awards were outstanding as of the year ended November 30, 2019.
### OPTION EXERCISES
During our Fiscal year ended November 30, 2019 there were no options exercised by our named officers.
COMPENSATION OF DIRECTORS
We do not have any agreements for compensating our directors for their services in their capacity as directors, although such directors are expected in the future to receive stock options to purchase shares of our common stock as awarded by our board of directors.
We have determined that none of our directors are independent directors, as that term is used in Item 7(d)(3)(iv)(B) of Schedule 14A under the SECURITIES EXCHANGE ACT OF 1934, as amended, and as defined by Rule 4200(a)(15) of the NASDAQ Marketplace Rules.
INDEBTEDNESS OF DIRECTORS, SENIOR OFFICERS, EXECUTIVE OFFICERS AND OTHER MANAGEMENT
None of our directors or executive officers or any associate or affiliate of our company during the last two fiscal years, is or has been indebted to our company by way of guarantee, support agreement, letter of credit or other similar agreement or understanding currently outstanding.
During the year ended November 30, 2019, we did not have a compensation committee or another committee of the board of directors performing equivalent functions. Instead, the entire board of directors performed the function of compensation committee. Our board of directors approved the executive compensation, however, there were no deliberations relating to executive officer compensation during the year ended November 30, 2019.
None.
FAMILY RELATIONSHIPS
There are no family relationships between any of our directors, executive officers or directors.
ITEM 12.
The following table sets forth, as of May 03, 2021, certain information with respect to the beneficial ownership of our common shares by each shareholder known by us to be the beneficial owner of more than 5% of our common shares, as well as by each of our current directors and executive officers as a group. Each person has sole voting and investment power with respect to the shares of common stock, except as otherwise indicated.
In computing the percentage ownership of any person, the amount of shares outstanding is deemed to include the number of shares beneficially owned by such person (and only such person) by reason of these acquisition rights. As a result, the percentage of outstanding shares of any person as shown in this table does not necessarily reflect the person's actual ownership or voting power with respect to the number of shares of common stock actually outstanding on, 2021. As of May 03, 2021, there were 81,238,895 shares of our company's common stock issued and outstanding.
### CHANGES IN CONTROL
We are unaware of any contract or other arrangement or provisions of our Articles or Bylaws the operation of which may at a subsequent date result in a change of control of our company. There are not any provisions in our Articles or Bylaws, the operation of which would delay, defer, or prevent a change in control of our company.
ITEM 13.
Except as disclosed herein, no director, executive officer, shareholder holding at least 5% of shares of our common stock, or any family member thereof, had any material interest, direct or indirect, in any transaction, or proposed transaction since the year ended November 30, 2019, in which the amount involved in the transaction exceeded or exceeds the lesser of $120,000 or one percent of the average of our total assets at the year-end for the last three completed fiscal years.
### DIRECTOR INDEPENDENCE
We currently act with one director, Alexander Stanbury. We have determined that he is not an "independent director" as defined in NASDAQ Marketplace Rule 4200(a)(15).
We do not have a standing audit, compensation or nominating committee, but our entire board of directors acts in such capacities. We believe that our members of our board of directors are capable of analyzing and evaluating our financial statements and understanding internal controls and procedures for financial reporting. The board of directors of our company does not believe that it is necessary to have an audit committee because we believe that the functions of an audit committee can be adequately performed by the board of directors. In addition, we believe that retaining an independent director who would qualify as an "audit committee financial expert" would be overly costly and burdensome and is not warranted in our circumstances given the early stages of our development.
### ITEM 14.
The aggregate fees billed for the most recently completed fiscal year ended November 30, 2019 and for the fiscal year ended November 30, 2018 for professional services rendered by the principal accountant for the audit of our annual financial statements and review of the financial statements included in our quarterly reports on Form 10-Q and services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for these fiscal periods were as follows:
Our board of directors has considered the nature and amount of fees billed by our independent auditors and believes that the provision of services for activities unrelated to the audit is compatible with maintaining our independent auditors' independence.
PART IV
### ITEM 15.
(a) Financial Statements
(1) Financial statements for our company are listed in the index under Item 8 of this document
(2) All financial statement schedules are omitted because they are not applicable, not material or the required information is shown in the financial statements or notes thereto.
(b) Exhibits
*
Filed herewith.
**
Furnished herewith. Pursuant to Rule 406T of Regulation S-T, the Interactive Data Files on Exhibit 101 hereto are deemed not filed or part of any registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, are deemed not filed for purposes of Section 18 of the Securities and Exchange Act of 1934, and otherwise are not subject to liability under those sections.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Form
10-K
### EXPLANATORY NOTE
Corcept Therapeutics Incorporated (Corcept or we) is filing this Amendment No.1 on Form
10-K/A
(the Amendment) to its Annual Report on Form
10-K), which we filed with the Securities and Exchange Commission on February23, 2021. The Amendment replaces in its entirety Part II, Item 9A Controls and Procedures (Item 9A) of the Original Form
10-K, which inadvertently used language that no longer met the requirements of Item 308(a) of Regulation
### S-K.
The new Item 9A provided by this Amendment clarifies the framework our management uses to assess the effectiveness of Corcepts disclosure controls and procedures as of the end of our fiscal year ended December31, 2020, including a statement regarding the conclusion of our Chief Executive Officer and Chief Financial Officer that our disclosure controls and procedures were effective as of such date.
The Amendment does not amend the Original Form
10-K in any other way. Specifically, it does not update the Original Form
10-K to reflect events occurring after February23, 2021.
The complete text of Item 9A, including the revised language of Item 9A(b), is provided below.
### Item9A. Controls and procedures.
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in the reports we file with the SEC is recorded, processed, summarized and filed within the time periods specified in the SECs rules and forms and that such information is accumulated and discussed with our management, including our Chief Executive Officer and Chief Financial Officer, so as to allow timely decisions regarding disclosure. Management recognizes that controls and procedures, no matter how well designed and operated, can only provide reasonable, not absolute, assurance the desired control objectives will be met. In reaching a reasonable level of assurance, management has weighed the cost of contemplated controls against their intended benefits. The design of any system of controls is based on managements assumptions about the likelihood of future events. We cannot assure you that our controls will achieve their stated goals under all possible conditions. Changes in future conditions may render our controls inadequate or may cause our degree of compliance with them to deteriorate.
As of December31, 2020, our Chief Executive Officer and Chief Financial Officer evaluated our disclosure controls and procedures (as defined in Rules
13a-15(e) and
15d-15(e) of the Exchange Act). Based on their evaluation, they concluded that they are effective.
There were no changes in our internal controls over financial reporting during the quarter ended December31, 2020 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rule
13a-15(f).
Our internal control system is designed to provide reasonable assurance regarding the preparation and fair presentation of externally-reported consolidated financial statements in accordance with U.S. GAAP. As discussed in Item 9A(a) above, internal control systems, no matter how well designed, have inherent limitations and can provide only reasonable assurance that their objectives have been met.
As of December31, 2020, our management conducted an evaluation, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our internal control over financial reporting based upon the framework in Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our internal control over financial reporting was effective as of December31, 2020.
Our independent registered public accounting firm has issued an attestation report on our internal control over financial reporting. It is set forth below.
(c) Report of Independent Registered Public Accounting Firm
To the Stockholders and Board of Directors of Corcept Therapeutics Incorporated
We have audited Corcept Therapeutics Incorporateds internal control over financial reporting as of December31, 2020, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Corcept Therapeutics Incorporated (the Company) maintained, in all material respects, effective internal control over financial reporting as of December31, 2020, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets as of December31, 2020 and 2019, the related consolidated statements comprehensive income, stockholders equity and cash flows for each of the three years in the period ended December31, 2020, and the related notes and our report dated February23, 2021 expressed an unqualified opinion thereon.
### Basis for Opinion
The Companys management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Managements Report on Internal Control over Financial Reporting.
A companys internal control over financial reporting includes those policies and procedures that (1)pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2)provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3)provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the companys assets that could have a material effect on the financial statements.
/s/ Ernst& Young LLP
### Redwood City, California
February23, 2021
EXHIBITS INDEX
Item 601 of Regulation
S-K requires the exhibits listed below.
(A)
### EXHIBITS
Exhibit
Number
Description of Document
31.1
13a-14(a) under the Securities Exchange Act of 1934 of Joseph K. Belanoff, M.D.
31.2
13a-14(a) under the Securities Exchange Act of 1934 of Atabak Mokari<|endoftext|>Our directors or officers to which indemnification is being sought, and we are not aware of any pending or threatened litigation that may result in claims for indemnification by any director or officer.
2020 Related Party Transactions
### Unit Purchase Agreements
In June 2020, we completed an underwritten offering of 9,200,000 shares of our Class A common stock. In connection with the offering, on May 28, 2020, we entered into a unit purchase agreement with Corsair to use the net proceeds from 5,200,000 of those shares to purchase an equivalent number of outstanding Post-Merger Repay Units owned by Corsair for a total purchase price of $98,800,000.
In September 2020, we completed an underwritten offering of 14,364,816 shares of our Class A common stock. In connection with the offering, on May 28, 2020, we entered into a unit purchase agreement with Corsair to use the net proceeds from those shares to purchase an equivalent number of outstanding Post-Merger Repay Units owned by Corsair for a total purchase price of $336,495,815.
### Commission Restructurings
During 2020, we made payments to certain employees in connection with significant restructuring of their commission structures. This included a payment of $3.0 million to Andrew Alias, who is an employee and the brother of Shaler Alias. As an employee, Andrew Alias receives a base salary, commissions and other benefits consistent with the terms of his existing employment agreement, as well as equity incentive grants from our annual equity pool for non-executives.
We have adopted a formal written policy providing that our officers, directors, nominees for election as directors, beneficial owners of more than 5% of any class of our capital stock, any member of the immediate family of any of the foregoing persons and any firm, corporation or other entity in which any of the foregoing persons is employed or is a general partner or principal or in a similar position or in which such person has a 5% or greater beneficial ownership interest, are not permitted to enter into a related party transaction with the Company without the approval of the nominating and corporate governance committee, subject to certain exceptions. For more information, see the section entitled Management
### Director Independence
Audit committee members must also satisfy the additional independence criteria set forth in Rule 10A-3 under the Exchange Act and the rules of Nasdaq. Compensation committee members must also satisfy the additional independence criteria set forth in Rule 10C-1 under the Exchange Act and the rules of Nasdaq.
In order to be considered independent for purposes of Rule 10A-3 under the Exchange Act and under the rules of Nasdaq, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the committee, the board of directors, or any other board committee: (1) accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries;
To be considered independent for purposes of Rule 10C-1 under the Exchange Act and under the rules of Nasdaq, the board of directors must affirmatively determine that the member of the compensation committee is independent, including a consideration of all factors specifically relevant to determining whether the director has a relationship to the company which is material to that directors ability to be independent from management in connection with the duties of a compensation committee member, including, but not limited to: (i) the source of compensation of such director, including any consulting, advisory or other compensatory fee paid by the company to such director; and (ii) whether such director is affiliated with the company, a subsidiary of the company or an affiliate of a subsidiary of the company.
The Board has undertaken a review of the independence of each director and considered whether each director has a material relationship with the Company that could compromise his or her ability to exercise independent judgment in carrying out his or her responsibilities. As a result of this review, the Board has determined that Ms. Goebel and Messrs. Hartheimer, Jacobs, Thornburgh, Kight, Schein and Garcia are independent directors as defined under the listing requirements and rules of Nasdaq and the applicable rules of the Exchange Act.
### ITEM 14.
The audit committee selected Grant Thornton LLP (Grant Thornton) to serve as our independent registered accounting firm for the fiscal year ending December 31, 2020. We first engaged Grant Thornton in 2018, and it has served as our principal accounting firm since that date. The following table shows the fees for professional services rendered by Grant Thornton for the audit of our annual financial statements for the years ended December 31, 2020 and December 31, 2019, and fees billed for other services rendered by Grant Thornton during those periods.
(1)
### Audit Fees
Audit Fees consist of fees for professional services rendered for the audits of our annual consolidated financial statements, reviews of unaudited condensed consolidated quarterly financial statements, and consent procedures required in connection with our Form S-3 Registration Statements, Form S-4 and Form S-4/A Registration Statements.
(2)
### Audit-Related Fees
Audit-Related Fees consist of fees for professional services that are reasonably related to the performance of the audit or review of the Companys financial statements and are not reported under Audit Fees.
(3)
### Tax Fees
Tax Fees consist of fees for professional services rendered with respect to federal and state tax compliance and tax advice. This can include preparation of tax returns, claims for refunds, payment planning, and tax law interpretation.
(4)
### All Other Fees
All Other Fees consist of fees for professional services or costs not otherwise reported in Audit Fees, Audit-Related Fees or Tax Fees.
Preapproval Policies and Procedures
All audit-related services, tax services and other non-audit services were pre-approved by the audit committee, which concluded that the provision of such services by Grant Thornton was compatible with the maintenance of that firms independence in the conduct of its auditing functions. The audit committees outside auditor independence policy provides for pre-approval of audit and audit-related services specifically described by the committee on an annual basis and, in addition, individual engagements anticipated to exceed pre-established thresholds must be separately approved.
PART IV
ITEM 15.
(1)
Financial Statements
(2)
(3)
Exhibits
*
### Filed herewith.
+
Indicates a management or compensatory plan.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Of common stock entitles the holder to one vote, in person or proxy, on any matter on which action of the stockholders of the corporation is sought.
### Stock options
On November 20, 2020, the Company issued for services rendered a stock option to purchase 400,000 shares of the Companys common stock with an exercise price of $0.001 per share and a term of one year. The option was fully vested upon grant. During the year ended December 31, 2020, the Company recorded $19,608 as general and administrative expense in the Companys consolidated statements of operations. As of December 31, 2020 there was no unrecognized costs for options outstanding. The Company valued the options using the Black-Scholes options pricing model using the following assumptions: 1) expected term of one year, 2) expected volatility of 157%, 3) risk-free interest rate of 0.11%, and 4) dividend yield of 0%.
Subsequent to the year ending December 31, 2020, the Company transferred the option to the Companys former CEO, it was exercised, and was settled in third-party shares, in full.
As of and for the year ending December 31, 2019, the Company had no stock option activity and no stock options outstanding.
### NOTE 9 DISCONTINUED OPERATIONS
On July 1, 2019, Performance Food Group Company (PFG) announced that it entered into a definitive agreement to acquire Reinhart Foodservice, LLC (Reinhart) from Reyes Holdings, LLC. Reinhart is a principal purchaser of our fresh produce distribution business. On December 20, 2019, PFG received approval from the Federal Trade Commission to acquire Reinhart and closed the transaction on December 30, 2019. Most of our business through our License Agreement with Markon Cooperative is purchased by Reinhart. Although our Markon License Agreement has not been terminated, PFG notified us that it will use its existing suppliers, which do not include us. Since this agreement that generates over half of our existing business is effectively terminated, we decided to discontinue our fresh produce distribution business, and we have notified all of our vendors and suppliers that we will not conduct new business with them after December 27, 2019.
In accordance with the provisions of ASC 205-20,
### Presentation of Financial Statements
, we have separately reported the assets and liabilities of the discontinued operations in the consolidated balance sheets. The assets and liabilities have been reflected as discontinued operations in the consolidated balance sheets as of December 31, 2020 and 2019, and consist of the following:
In accordance with the provisions of ASC 205-20, we have not included the results of operations from discontinued operations in the results of continuing operations in the consolidated statements of operations. The results of operations
20/20 GLOBAL, INC.
December 31, 2020 and 2019 from discontinued operations for the years ended December 31, 2020 and 2019, have been reflected as discontinued operations in the consolidated statements of operations for the years ended December 31, 2020 and 2019, and consist of the following.
In accordance with the provisions of ASC 205-20, we have included the net cash provided by discontinued operations in the consolidated statements of cash flows. The net cash provided by discontinued operations in the consolidated statements of cash flows for the years ended December 31, 2019 and 2018, consist of the following.
### NOTE 10 LEGAL PROCEEDINGS
On June 27, 2019, the Company was served with Petitioners Motion to Join 20/20 Global as a Necessary Third-Party Respondent to the Present Action, and to Enforce the Judgment Entered October 9, 2018, by Ordering 20/20 Global, Inc., to Turn Over Marital Securities Earned by Respondent and Awarded to Petitioner and a Subpoena for Deposition (Records only) in the matter of In re the Marriage of Penni Gruenberg v. Myron Gruenberg, Case No. 17 D 3662,
20/20 GLOBAL, INC.
December 31, 2020 and 2019 pending in the Circuit Court of Cook County, Illinois. We did not believe Mr. Gruenberg which was recorded as loss on legal settlement as an other expense in the Companys consolidated statements of operations for the year ending December 31, 2019.
### NOTE 11 SUBSEQUENT EVENTS
MYC is a start-up enterprise that proposes to develop a business to provide psychedelic-enhanced holistic methodologies to improve mental wellbeing. and our relationship with Ehave Inc.
The following table provides unaudited pro forma results for the years ended December 31, 2020 and 2019, as if the Stock Purchase Agreement consummated on January 1, 2019. The pro forma results of operations for these periods ended were prepared for comparative purposes only and do not purport to be indicative of what would have occurred had the Stock Purchase Agreement been made as of January 1, 2019 or results that may occur in the future.
Management has evaluated subsequent events pursuant to the requirements of ASC Topic 855,Subsequent Events, from the balance sheet date through the date the financial statements were issued and has determined that no additional material subsequent events exist.
(b)The following exhibits are filed as part of this report:
### Exhibit
Number*
Title of Document
### Location
Item 2.
Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
2.01
Exchange Agreement and Plan of Reorganization by and among RM Investors, Inc., 20/20 Produce Sales, Inc., and Stockholders of 20/20 Produce Sales, Inc. dated March 14, 2014
Item 3.
3.01
Amended and Restated Articles of Incorporation of 20/20 Global, Inc.
3.02
### Bylaws of 20/20 Global, Inc.
Item 4.
Instruments Defining the Rights of Security Holders, Including Debentures
4.01
### Specimen stock certificate
Item 10.
Material Contracts
10.01
License Agreement with Markon Cooperative dated June 27, 2016
10.02
Produce Fixed-Term Purchase Agreement dated February 29, 2016
10.03
Supplier Authorization Agreement dated February29, 2016
Item 31.
Rule 13a-14(a)/15d-14(a) Certifications
31.01
Certification of Principal Executive and Principal Financial Officer Pursuant to Rule 13a-14
### This filing
Item 32
Section 1350 Certifications
Certification of Chief Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
This filing.
### Item 101**
Interactive Data File
101.INS
### XBRL Instance Document
This filing.
101.SCH
### XBRL Taxonomy Extension Schema
This filing.
101.CAL
### XBRL Taxonomy Extension Calculation Linkbase
This filing.
101.DEF
### XBRL Taxonomy Extension Definition Linkbase
This filing.
101.LAB
### XBRL Taxonomy Extension Label Linkbase
This filing.
_______________<|endoftext|>Ended March 31, 2020).
10.1 (g)
Second Amendment to Security Agreement, dated May 11, 2020 between Harte Hanks, Inc. and Texas Capital Banks, N.A.(filed as Exhibit 10.1(c) to the company's Form 10-Q for three months ended March 31, 2020).
10.1 (h)
Second Amended and Restated Fee, Reimbursement and Indemnity Agreement, dated May 11, 2020 between Harte Hanks, Inc. and HHS Guaranty, LLC(filed as Exhibit 10.1(d) to the company's Form 10-Q for three months ended March 31, 2020).
10.1 (i)
Small Business Administration Paycheck Protection Program Loan Note, dated as of April 14, 2020 (filed as Exhibit 10.1(e) to the company's Form 10-Q for three months ended March 31, 2020).
Management and Director Compensatory Plans and Forms of Award Agreements
10.2(a)
Harte Hanks, Inc. Restoration Pension Plan (As Amended and Restated Effective January 1, 2008) (filed as Exhibit 10.1 to the company s Form 8-K dated June 27, 2008).
10.2(b)
Harte Hanks, Inc. 2005 Omnibus Incentive Plan (As Amended and Restated Effective February 13, 2009) (filed as Exhibit 10.1 to the company s Form 8-K dated February 13, 2009).
10.2(c)
Amendment to Harte Hanks, Inc. 2005 Omnibus Incentive Plan, dated as of May 12, 2009 (incorporated by reference to Exhibit 4.4 to Harte Hanks Registration Statement on Form S-8, filed on May 12, 2009).
10.2(d)
Form of 2005 Omnibus Incentive Plan Non-Qualified Stock Option Agreement (filed as Exhibit 10.2(i) to the company s Form 10-K dated March 7, 2012).
10.2(e)
Form of 2005 Omnibus Incentive Plan Bonus Stock Agreement (filed as Exhibit 10.2(j) to the company s Form 10-K dated March 7, 2012).
10.2(f)
Form of 2005 Omnibus Incentive Plan Restricted Stock Award Agreement (filed as Exhibit 10.2(k) to the company s Form 10-K dated March 7, 2012).
10.2(g)
Form of 2005 Omnibus Incentive Plan Performance Unit Award Agreement (filed as Exhibit 10.2(l) to the company s Form 10-K dated March 7, 2012).
10.2(h)
### Summary of Non-Employee Directors
Compensation (included within the company s Schedule of 14A proxy statement filed April 11, 2016).
10.2(i)
Harte Hanks, Inc. 2013 Omnibus Incentive Plan (filed as Annex A to the company s Schedule 14A proxy statement filed April 15, 2013).
10.2(j)
Form of 2013 Omnibus Incentive Plan Non-Qualified Stock Option Agreement (filed as Exhibit 10.4 to the company s Registration Statement on Form S-8 dated June 7, 2013).
10.2(k)
Form of 2013 Omnibus Incentive Plan Restricted Stock Award Agreement (General) (filed as Exhibit 10.1 to the company s Registration Statement on Form S-8 dated June 7, 2013).
10.2(l)
Form of 2013 Omnibus Incentive Plan Restricted Stock Award Agreement (Director) (filed as Exhibit 10.2 to the company s Registration Statement on Form S-8 dated June 7, 2013).
10.2(m)
Form of 2013 Omnibus Incentive Plan Performance Unit Award Agreement (filed as Exhibit 10.3 to the company s Registration Statement on Form S-8 dated June 7, 2013).
10.2(n)
Form of 2013 Omnibus Incentive Plan Performance Restricted Stock Unit Award Agreement
10.2(o)
First Amendment to the Harte Hanks, Inc. Amended & Restated Restoration Pension Plan, dated October 11, 2016 (filed as Exhibit 10.1 to the company's Form 8-K dated October 14, 2016).
10.2(p)
Form of Restricted Stock Agreement between Harte Hanks, Inc. and Jon C. Biro (filed as Exhibit 10.2 to the company's Form 8-K dated November 17, 2017).
10.2(q)
Form of Non-Qualified Stock Option Agreement between Harte Hanks, Inc. and Jon C. Biro (filed as Exhibit 10.3 to the company's Form 8-K dated November 17, 2017).
10.2(r)
Form of Performance Unit Award Agreement between Harte Hanks, Inc. and Jon C. Biro (filed as Exhibit 10.4 to the company's Form 8-K dated November 17, 2017).
10.2(s)
Harte Hanks, Inc.2020 Equity Incentive Plan, dated as of August 3, 2020
(incorporated by reference to Appendix A of the Companys definitive proxy statement on Schedule 14A as filed with the Commission on May 22, 2020 (SEC File No. 001-07120)).
10.2(t)
Form of Registration Rights Agreement (filed as Exhibit 10.2 to the company's Form 8-K dated January 29, 2018).
Executive Officer Employment-Related and Separation Agreements
10.3(a)
Form of Severance Agreement between the company and its Executive Officers (filed as Exhibit 99.3 to the company s Form 8-K, dated February 2, 2018).
10.3(b)
Form of Employment Restrictions Agreement signed by the Corporate Officers of the company (filed as Exhibit 10.3 to the company s Form 8-K dated March 15, 2011).
10.3 (c)
Form of Indemnification Agreement for Directors and Officers (filed as Exhibit 10.1 to the company s 8-K dated August 2, 2012).
10.3 (d)
Form of Severance Agreement between the company and certain of its officers (filed as Exhibit 10.6 to the company s 8-K dated June 11, 2013).
10.3 (e)
Executive Severance Policy applicable to the company s executive officers and certain others (filed as Exhibit 10.1 to the company s Form 8-K, dated January 30, 2015).
10.3(f)
Employment Agreement between the company and Andrew Bennett dated November 19, 2019 (filed as Form 8-K, dated November 19, 2019).
10.3(g)
Form of Amendment to Service Agreement (filed as Exhibit 99.2 to the company's Form 8-K, dated February 2, 2018)
### Material Agreements
10.4(a)
Cooperation Agreement, dated July 18, 2017, by and among Harte Hanks, Inc., Sidus Investment Management, LLC, Sidus Investment Partners, L.P., Sidus Double Alpha Fund, L.P., Sidus Double Alpha Fund, Ltd., Sidus Advisors, LLC, Michael J. Barone and Alfred V. Tobia, Jr. (filed as Exhibit 10.1 to the company's Form 8-K dated July 19, 2017)
10.4 (b)
Cooperation Agreement dated as of May 17, 2018, by and between Harte Hanks, Inc. Houston H. Harte, Sarah Harte, Carolyn Harte, Larry D. Franklin and the Franklin Family Foundation (filed as Exhibit 99.1 to the Company's Current Report on Form 8-K dated May 17, 2018).
Other Exhibits
*10.5
Supplier Supply and Services Agreement Between Harte-Hanks Direct, Inc. and Wipro, LLC dated as of July 22, 2016.
*10.5 (b)
Securities Purchase Agreement, dated January 23, 2018, by and between Harte Hanks, Inc. and Wipro, LLC (filed as Exhibit 10.1 to the company s Form 8-K dated January 29, 2018).
*21.1
Subsidiaries of Harte Hanks, Inc.
*23.1
Consent of Moody, Famiglietti & Andronico, LLP, Independent Registered Public Accounting Firm.
*31.1
*31.2
31.3
31.4
*32.1
Furnished Certification of Chief Executive Officer pursuant to 18 U.S.C Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
*32.2
Furnished Certification of Chief Financial Officer pursuant to 18 U.S.C Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
*Previously filed or furnished with the Original Filing, as applicable.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
First Amendment to Loan and Security Agreement dated as of April 3, 2018 by and among Par Petroleum, LLC, Par Hawaii, Inc., Mid Pac Petroleum, LLC, HIE Retail, LLC, Hermes Consolidated, LLC, Wyoming Pipeline Company, and Bank of America N.A. Incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q filed on May 10, 2018.
10.31
Asset Purchase Agreement dated as of January 9, 2018 by and among CHS Inc., Par Hawaii, Inc., and Par Pacific Holdings, Inc. Incorporated by reference to Exhibit 10.2 to the Companys Quarterly Report on Form 10-Q filed on May 10, 2018. #
10.32
First Amendment to Asset Purchase Agreement dated as of March 23, 2018 by and among CHS Inc., Par Hawaii, Inc., and Par Pacific Holdings, Inc. Incorporated by reference to Exhibit 10.3 to the Companys Quarterly Report on Form 10-Q filed on May 10, 2018. #
10.33
Term Loan and Guaranty Agreement, dated as of January11, 2019, among Par Petroleum, LLC, Par Petroleum Finance Corp., the guarantors party thereto, Par Pacific Holdings, Inc. solely for the limited purposes set forth therein, the lenders party thereto, and Goldman Sachs Bank USA, as administrative agent. Incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on January 14, 2019.
10.34
Collateral Trust and Intercreditor Agreement, dated as of December21, 2017, among Par Petroleum, LLC, Par Petroleum Finance Corp., the guarantors from time to time party thereto, Wilmington Trust, National Association, as indenture trustee and as collateral trustee, J. Aron & Company LLC, and Goldman Sachs Bank USA. Incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K filed on January 14, 2019.
10.35
Fourth Amendment to Loan and Security Agreement, dated as of January11, 2019, among Par Petroleum, LLC, Par Hawaii, Inc., Mid Pac Petroleum, LLC, HIE Retail, LLC, Hermes Consolidated, LLC, Wyoming Pipeline Company LLC, the guarantors party thereto, the financial institutions party thereto, as lenders, and Bank of America, N.A., as administrative agent and collateral agent for the lenders. Incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K filed on January 14, 2019.
10.36
Fifth Amendment to Loan and Security Agreement, dated as of June 5, 2020, among Par Petroleum, LLC, Par Hawaii, LLC, Hermes Consolidated, LLC, Wyoming Pipeline Company LLC, the guarantors party thereto, the financial institutions party thereto, as lenders, and Bank of America, N.A., as administrative agent and collateral agent for the lenders. Incorporated by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed on June 8, 2020.
10.37
Conformed Copy of First Lien ISDA Master Agreement dated as of January11, 2019, between Merrill Lynch Commodities, Inc. and U.S. Oil& Refining Co. Incorporated by reference to Exhibit 10.4 to the Companys Current Report on Form 8-K filed on January 14, 2019.
10.38
Ninth Amendment to First Lien ISDA 2002 Master Agreement entered into as of November 1, 2019 by and between U.S. Oil & Refining Co. and Merrill Lynch Commodities, Inc.Incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on November 4, 2019.
10.39
Thirteenth Amendment to First Lien ISDA 2002 Master Agreement entered into as of February 11, 2021 by and between U.S. Oil & Refining Co. and Merrill Lynch Commodities, Inc
Incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on February 16, 2021.
10.40
Omnibus Amendment to Amended and Restated Pledge and Security Agreement and Amended and Restated Supply and Offtake Agreement, dated as of June 5, 2020, among Par Hawaii Refining, LLC, Par Petroleum, LLC and J. Aron & Company LLC. Incorporated by reference to Exhibit 10.2 to the Companys current report on Form 8-K filed on June 8, 2020.
10.41
Increase Agreement dated July 24, 2018 among Par Petroleum, LLC, Par Hawaii, Inc., Mid Pac Petroleum, LLC, HIE Retail, LLC, Hermes Consolidated, LLC, Wyoming Pipeline Company, LLC, and certain lenders. Incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed July 27, 2018.
10.42
Topping Unit Purchase Agreement by and among IES Downstream, LLC, Eagle Island, LLC, Par Hawaii Refining, LLC, and Par Pacific Holdings, Inc., dated as of August 29, 2018. Incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q filed on November 7, 2018. #
10.43
Second Amendment to Loan and Security Agreement dated as of October 16, 2018 by and among Par Petroleum, LLC, Par Hawaii, Inc., Mid Pac Petroleum, LLC, HIE Retail, LLC, Hermes Consolidated, LLC, Wyoming Pipeline Company, LLC, and the other members party thereto, the financial institutions party thereto, and Bank of America, N.A., as administrative agent.Incorporated by reference to Exhibit 10.3 to the Companys Quarterly Report on Form 10-Q filed on November 7, 2018.
10.44
Form of Exchange Agreement. Incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed on May 16, 2019.
10.45
Pledge and Security Agreement dated as of December 21, 2017 among Par Petroleum, LLC and Wilmington Trust, National Association, as collateral trustee.+
14.1
Par Pacific Holdings, Inc. Code of Business Conduct and Ethics for Employees, Executive Officers and Directors, effective December 3, 2015. Incorporated by reference to Exhibit 14.1 to the Companys Annual Report on Form 10-K filed March 3, 2016.
21.1
Subsidiaries of the Registrant.+
23.1
Consent of Deloitte & Touche LLP+
23.2
Consent of Deloitte & Touche LLP*
31.1
Certification of Chief Executive Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002.+
31.2
Certification of Chief Financial Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002.+
31.3
Certification of Chief Executive Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002.*
31.4
Certification of Chief Financial Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002.*
32.1
Certification of Chief Executive Officer Pursuant to 18U.S.C. Section1350.+
32.2
Certification of Chief Financial Officer Pursuant to 18U.S.C. Section1350.+
101.INS
Inline XBRL Instance Document. The instance document does not appear in the Interactive Data File because XBRL tags are embedded within the Inline XBRL document.+
101.SCH
Inline XBRL Taxonomy Extension Schema Documents. +
101.CAL
+
101.LAB
+
101.PRE
+
101.DEF
+
+
*
Filed herewith.
***
Furnished herewith.
****
#
Omissions are designated with brackets containing asterisks. As part of our confidential treatment request, a complete version of this exhibit has been filed separately with the SEC.
+
Previously filed or furnished, as applicable<|endoftext|>That provide similar indemnification rights.
### Item12.
The following table summarizes compensation plans under which our securities are authorized for issuance as of December 31, 2020.
(1)
Reflects the number of outstanding performance shares (assuming achievement of target performance), phantom units and options.
(2)
The weighted-average exercise price excludes performance shares and phantom units, as they have no exercise price. All outstanding options expired as of July 2020.
Set forth below is certain information with respect to the beneficial ownership of our common stock (as determined under the rules of the SEC) by (1) each person who, to our knowledge, is the beneficial owner of more than 5% of our outstanding shares of common stock, which is our only class of voting securities, (2) each director, (3) each of the executive officers named in the Summary Compensation Table under Executive Compensation and (4) all of our directors and executive officers as a group. The information is as of February
26, 2021 unless otherwise indicated, and ownership percentages are based on 104,778,943 shares of common stock outstanding as of February
26, 2021
The business address of each person listed is c/o Frontier Communications Corporation, 401 Merritt 7, Norwalk, Connecticut 06851, unless stated otherwise. Except as otherwise described below, each of the persons named in the table has sole voting and investment power with respect to the common stock beneficially owned and has not pledged such common stock as security for any obligations.
*
Less than 1%.
(a)
The number of shares is as of December 31, 2019 and based on a Schedule 13G filed on February 12, 2020 by The Vanguard Group, Inc. The business address of this beneficial owner is 100 Vanguard Blvd., Malvern, PA 19355. Such Schedule 13G discloses that The Vanguard Group, Inc. has sole voting power over 90,516 shares, sole dispositive power over 6,050,839 shares and shared dispositive power over 90,516 shares.
(b)
Directors may elect to redeem stock units upon termination of service in the form of cash or shares of our common stock. Under the Plan, all outstanding shares of Company common stock and stock units will be extinguished upon emergence without payments. See Director Compensation, above.
(c)
Consists of 68,586 shares that may be acquired upon the redemption of stock units and 256 shares held directly by Mr. Bynoe.
(d)
(e)
Consists of 68,501 shares that may be acquired upon the redemption of stock units and 1,333 shares held directly.
(f)
and 666 shares held directly.
(g)
(h)
Includes 105,572 restricted shares over which Mr. Arndt has sole voting power but no dispositive power and 101 shares held in a 401(k) plan.
(i)
Bruha has sole voting power but no dispositive power.
(j)
Gable has sole voting power but no dispositive power.
(k)
Nielsen has sole voting power but no dispositive power.
(l)
Maduri had sole voting power but no dispositive power; reflects Mr. Maduris holdings as of his departure in September 2020, including the cancellation of certain restricted shares in connection therewith.
Item 13.
The Board has adopted a written policy addressing our procedures with respect to the review, approval and ratification of related person transactions that are required to be disclosed pursuant to SEC regulations. The policy provides that any transaction, arrangement or relationship, or series of similar transactions, to which we are a party, that exceeds $120,000 in the aggregate, with a related person (as defined in the SEC regulations) who has or will have a direct or indirect material interest shall be subject to review, approval or ratification by the Committee. In its review of related person transactions, the Committee shall review the material facts and circumstances of the transaction and shall take into account specified factors, where appropriate, based on the particular facts and circumstances, including (i) the nature of the related persons interest in the transaction, (ii) the significance of the transaction to us and to the related person and (iii) whether the transaction is likely to impair the judgment of the related person to act in the best interest of Frontier.
No member of the Committee may participate in the review, approval or ratification of a transaction with respect to which he or she is a related person, although such director can be counted for purposes of a quorum and shall provide such information with respect to the transaction as may be reasonably requested by other members of the Committee or the Board.
### Director Independence
The Board reviews of director independence by reviewing relationships between Frontier and each director as well as Frontier and the organizations with which each director is affiliated. The Board has determined that no director, other than Mr. Han, has a material relationship with Frontier (either directly or as a partner, stockholder or officer of an organization that has a relationship with Frontier) that would impair the directors ability to exercise independent judgment in carrying out his or her responsibilities as a director.
Item 14.
In accordance with the Sarbanes-Oxley Act of 2002, the rules of the SEC and the Audit Committee Charter, the pre-approval of the Audit Committee is required for all audit and permissible non-audit services that will be provided by KPMG LLP, our independent registered public accounting firm. All of the services of KPMG LLP for 2020 and 2019 were pre-approved by the Audit Committee.
The following table sets forth the fees for professional audit services paid by us to KPMG LLP, our independent registered public accounting firm:
### Audit Fees
Audit fees relate to professional services rendered in connection with the audit of our annual consolidated financial statements included in our Annual Report on Form 10-K and internal control over financial reporting, the review of our quarterly financial statements included in our Quarterly Reports on Form 10-Q and audit services provided in connection with other subsidiary audit reports and professional services rendered in connection with Frontiers debt offerings.
Audit-Related Fees
For 2020 and 2019, audit-related fees primarily relate to professional services rendered in connection with agreed-upon procedure reports.
### Tax Fees
Tax fees for 2020 and 2019 primarily relate to tax consulting services as well as professional services rendered in connection with the preparation of transactional tax filings.
Item 15.
Exhibit No.
Description
31.3
Certification of Principal Executive Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934 (the 1934 Act).
31.4
Certification of Principal Financial Officer pursuant to Rule 13a-14(a) under the 1934 Act.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
3,450,000 ClassB ordinary shares outstanding as of December31, 2020. The table below does not include the ClassA ordinary shares underlying the private placement warrants held by our sponsor because these securities are not exercisable within 60 days of this Annual Report on Form
10-K.
*
Less than one percent.
(1)
Unless otherwise noted, the business address of each of the following entities and individuals is Two Union Square, 601 Union St., Suite 3200, Seattle, WA 98101.
(2)
Consists of 3,300,000 ClassB ordinary shares held by our sponsor. Our sponsor is governed by a board of managers, consisting of James N. Topper, David Topper, Gordon Empey and Max M. Nowicki. Mr.James Topper is also the general partner of FHMLS X, L.L.C., which is the general partner of FHMLS X, L.P., which is the general partner of Frazier Life Sciences X, L.P., the sole member of our sponsor. Each of Mr.James Topper, Mr.David Topper, Mr.Empey and Mr.Nowicki disclaims beneficial ownership of the shares other than to the extent of any pecuniary interest they may have therein, directly or indirectly.
(3)
Consists of 1,000,000 units held by Frazier Life Sciences X, L.P. FHMLS X, L.P. is the general partner of Frazier Life Sciences X, L.P. and FHMLS X, L.L.C. is the general partner of FHMLS X, L.P. Patrick J. Heron and James N. Topper are the members of FHMLS X, L.L.C. Each of FHMLS X, L.P., FHMLS X, L.L.C., Mr.Heron and Mr.James Topper disclaims beneficial ownership of the shares other than to the extent of any pecuniary interest they may have therein, directly or indirectly.
(4)
Does not include any shares indirectly owned by this entity or individual as a result of their indirect ownership interest in our sponsor.
(5)
Based solely on the Schedule 13G jointly filed with the SEC on February16, 2021 by RA Capital Management, L.P. (RA Capital), RA Capital Healthcare Fund, L.P. (the Fund), Peter Kolchinsky and Rajeev Shah. Consists of (i) 913,862 units held by the Fund and (ii) 86,138 units held by a separately managed account (the Account). RA Capital Healthcare Fund GP, LLC is the general partner of the Fund. The general partner of RA Capital is RA Capital Management GP, LLC, of which Dr.Kolchinsky and Mr.Shah are the controlling persons. RA Capital serves as investment adviser for the Fund and the Account and may be deemed to beneficially own the shares held by the Fund and the Account. The Fund has delegated to RA Capital the sole power to vote and the sole power to dispose of all securities held in the Funds portfolio, including the shares held by the Fund and the Account. Each of the Fund, Dr.Kolchinsky, and Mr.Shah disclaim ownership of the shares held by the Fund and the Account. The address of these entities and individuals is c/o RA Capital Management, L.P., 200 Berkeley Street, 18 th
### Floor, Boston MA 02116.
### Changes in Control
None.
Item13 Certain Relationships and Related Transactions, and Director Independence
On December8, 2020, we effected a share sub-division, resulting in there being an aggregate of 3,450,000 founder shares outstanding (at approximately $0.007 per share). The number of founder shares issued was determined based on the expectation that such founder shares would represent 20% of the issued and outstanding shares upon completion of the Initial Public Offering.
Our sponsor purchased 501,000 private placementunits for a purchase price of $5,010,000 in a private placement that closed simultaneously with the closing of the Initial Public Offering. The private placementunits and ClassA ordinary shares issued upon the exercise or conversion thereof may not, subject to certain limited exceptions, be transferred, assigned or sold by the holder.
The cost for our use of this space is included in the $10,000 per month fee we will pay to our sponsor for office space, administrative and support services, commencing on the date that our securities are first listed on the Nasdaq.
Our sponsor may loan us funds to be used for a portion of the expenses of the Initial Public Offering. As of December31, 2020, we have no borrowings under the under the promissory note with our sponsor. These loans would be non-interest bearing, unsecured and are due at the earlier of December31, 2021 or the closing of the Initial Public Offering. The loan will be repaid upon the closing of the Initial Public Offering out of the estimated $1,250,000 of offering proceeds that has been allocated to the payment of offering expenses and that is not held in the trust account.
10-K.
We entered into a registration and shareholder rights agreement pursuant to which our initial shareholders, and their permitted transferees, if any, are entitled to certain registration rights with respect to the private placementunits, the private placement shares, the private placement warrants, the securities issuable upon conversion of working capital loans (if any) and the ClassA ordinary shares issuable upon exercise of the foregoing and upon conversion of the founder shares.
The audit committee of our board of directors adopted a charter, providing for the review, approval and/or ratification of related party transactions, which are those transactions required to be disclosed pursuant to Item404 of
### Item14 Principal Accountant Fees and Services
The following is a summary of fees paid to WithumSmith+Brown, PC (Withum), for services rendered
### Audit Fees
Audit fees consist of fees for professional services rendered for the audit for the period from October7, 2020 (inception) through December31, 2020 financial statements, reviews of our quarterly financial statements and services that are normally provided by our independent registered public accounting firm in connection with statutory and regulatory filings. The aggregate fees by WithumSmith+Brown, PC for audit fees, inclusive of required filings with the SEC for the period from October7, 2020 (inception) through December31, 2020 including the services rendered in connection with our initial public offering, totaled $76,220.
Audit-Related Fees
Audit-related fees consist of fees billed for assurance and related services that are reasonably related to performance of the audit or review of the period from October7, 2020 (inception) through December31, 2020 financial statements and are not reported under Audit Fees. For the period from October7, 2020 (inception) through December31, 2020, WithumSmith+Brown, PC did not render such services.
### Tax Fees
For the period from October7, 2020 (inception) through December31, 2020, we WithumSmith+Brown, PC did not render such services.
All Other Fees
For the period from October7, 2020 (inception) through December31, 2020, WithumSmith+Brown, PC did not render any of these other services.
### Pre-Approval
Policy
### PART IV
Item15<|endoftext|>10.12+
Amended and Restated Employment Agreement, dated as of April20, 2020, by and between Christopher R. Easter and the registrant (incorporated by reference to Exhibit10.1 to the Quarterly Report on Form10-Q filed by the registrant on August6, 2020).
10.13+
Separation Agreement, dated as of December30, 2020, by and among Christopher R. Easter and the registrant (incorporated by reference to Exhibit10.3 to the Current Report on Form8-K filed by the registrant on January5, 2021).
10.14+
Employment Agreement, dated as of April20, 2020, by and between Jason Bates and the registrant (incorporated by reference to Exhibit10.4 to the Quarterly Report on Form10-Q filed by the registrant on August6, 2020).
10.15+
Employment Agreement, dated as of May6, 2020, by and between Rick Williams and the registrant (incorporated by reference to Exhibit10.8 to the Quarterly Report on Form10-Q filed by the registrant on August6, 2020).
10.16+
Transition and Separation Agreement, dated as of April2, 2020, by and between Angie Moss and the registrant (incorporated by reference to Exhibit10.12 to the Quarterly Report on Form10-Q filed by the registrant on August6, 2020).
10.17+
Formof Indemnification Agreement between the registrant and each of its directors and executive officers (incorporated by reference to Exhibit10.6 to the Current Report on Form8-K filed by the registrant on March3, 2017).
10.18+
Daseke,Inc. 2017 Omnibus Incentive Plan, as amended and restated on May26, 2017, effective as of February27, 2017 (incorporated by reference to Exhibit4.3 to the registrants Registration Statement on FormS-8 filed on May31, 2017 (File No.333-218386)).
10.19+
First Amendment to Daseke,Inc. 2017 Omnibus Incentive Plan (as amended and restated on May26, 2017, effective as of February27, 2017), effective as of September6, 2019 (incorporated by reference to Exhibit10.1 to the registrants Quarterly Report on Form10-Q filed on November12, 2019).
10.20+
Daseke,Inc. 2017 Management Stock Ownership Program (incorporated by reference to Exhibit10.10 to the Current Report on Form8-K filed by the registrant on March3, 2017).
10.21+
Daseke,Inc. 2017 Management Stock Ownership Program for Selected Management (incorporated by reference to Exhibit4.5 to the registrants Registration Statement on FormS-8 filed on May31, 2017 (File No.333-218386).
Exhibit No.
Exhibit
10.22+
Daseke,Inc. 2017 Stock Ownership Program for Employees (incorporated by reference to Exhibit4.4 to the registrants Registration Statement on FormS-8 filed on May31, 2017 (File No.333-218386)).
10.23+
Daseke,Inc. 2017 Stock Ownership Program for Truck Driver Employees (incorporated by reference to Exhibit4.6 to the registrants Registration Statement on FormS-8 filed on May31, 2017 (File No.333-218386)).
10.24+
Daseke,Inc. Formof Restricted Stock Unit Award Agreement (Canadian Employee) (incorporated by reference to Exhibit4.10 to the registrants Registration Statement on FormS-8 filed on May31, 2017 (File No.333-218386)).
10.25+
Daseke,Inc. Formof Non-Qualified Stock Option Award Agreement (Canadian Employee) (incorporated by reference to Exhibit4.11 to the registrants Registration Statement on FormS-8 filed on May31, 2017 (File No.333-218386)).
10.26+
Formof Restricted Stock Unit Award Agreement of the registrant (incorporated by reference to Exhibit10.7 to the registrants Current Report on Form8-K filed on March3, 2017).
10.27+
Formof Non-Qualified Stock Option Award Agreement of the registrant (incorporated by reference to Exhibit10.8 to the registrants Current Report on Form8-K filed on March3, 2017).
10.28+
Formof Non-Qualified Stock Option Award Agreement for Non-Employee Directors of the registrant (incorporated by reference to Exhibit10.9 to the registrants Current Report on Form8-K filed on March3, 2017).
10.29+
Restricted Stock Unit Award Agreement, dated as of September19, 2019, by and between Brian Bonner and the registrant (incorporated by reference to Exhibit10.8 to the registrants Quarterly Report on Form10-Q filed on November12, 2019).
10.30+
Non-Qualified Stock Option Award Agreement, dated as of April20, 2020, by and between Christopher R. Easter and the registrant (incorporated by reference to Exhibit10.2 to the Quarterly Report on Form10-Q filed by the registrant on August6, 2020).
10.31+
Performance Stock Unit Award Agreement, dated as of April20, 2020, by and between Christopher R. Easter and the registrant (incorporated by reference to Exhibit10.3 to the Quarterly Report on Form10-Q filed by the registrant on August6, 2020).
10.32+
Non-Qualified Stock Option Award Agreement, dated as of April20, 2020, between Jason Bates and the registrant (incorporated by reference to Exhibit4.3 to the Registration Statement on FormS-8 filed by the registrant on April23, 2020).
10.33+
Non-Qualified Stock Option Award Agreement, dated as of April20, 2020, between Jason Bates and the registrant(incorporated by reference to Exhibit4.4 to the Registration Statement on FormS-8 filed by the registrant on April23, 2020).
10.34+
Performance Stock Unit Award Agreement, dated as of April23, 2020, between Jason Bates and the registrant(incorporated by reference to Exhibit4.5 to the Registration Statement on FormS-8 filed by the registrant on April23, 2020)
10.35+
Non-Qualified Stock Option Award Agreement, dated as of May6, 2020, between Rick Williams and the registrant(incorporated by reference to Exhibit10.9 to the Quarterly Report on Form10-Q filed by the registrant on August6, 2020).
Exhibit No.
Exhibit
10.36+
Non-Qualified Stock Option Award Agreement, dated as of May6, 2020, between Rick Williams and the registrant(incorporated by reference to Exhibit10.10 to the Quarterly Report on Form10-Q filed by the registrant on August6, 2020).
10.37+
Performance Stock Unit Award Agreement, dated as of May6, 2020, between Rick Williams and the registrant(incorporated by reference to Exhibit10.11 to the Quarterly Report on Form10-Q filed by the registrant on August6, 2020).
21.1***
List of subsidiaries.
23.1***
31.1***
31.2***
31.3*
31.4*
32.1**
Certification of Principal Executive Officer under Section906 of Sarbanes-Oxley Act of 2002.
32.2**
Certification of Principal Financial Officer under Section906 of Sarbanes-Oxley Act of 2002.
101.INS***
Inline XBRL Instance Document.
101.SCH***
101.CAL***
101.DEF***
101.LAB***
101.PRE***
Inline Cover PageInteractive Data File (embedded within the Inline XBRL document).
*
Filed herewith.
**
Previously furnished with the Original Report.
***
+
Certain schedules and similar attachments have been omitted pursuant to Item 601(a)(5)of Regulation S-K. provided, however, that the Company may request confidential treatment pursuant to Rule24b-2 of the Exchange Act for any schedules and attachments so furnished.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
### Explanatory Note
1 ("Amendment No. 1") to the Annual Report on Form 10-K for the year ended December 31, 2020 of Exagen Inc. (the "Company") filed with the Securities and Exchange Commission on March 16, 2021 (the "Form 10-K") is to (i) amend and restate Item 9A of Part II to include management's report on internal control over financial reporting in accordance with Rule 308(a) of Regulation S-K, and (ii) amend the certifications of the Company's Principal Executive Officer and Principal Financial Officer pursuant to Rule 13a-14(a) or 15d-14(a) of the Exchange Act (the "Certifications"), to correct an inadvertent omission of a portion of paragraph 4 of the Certifications. The Certifications are included herewith as Exhibits 31.1 and 31.2. Because no financial statements are being filed with this Amendment No. 1, paragraph 3 of each of the Certifications has been omitted, and the Company is not including certifications pursuant to Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350).
This Amendment No.
Part II.
### Item 9A. Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our periodic and current reports that we file with the SEC is recorded, processed, summarized and reported within the time periods specified in the SECs rules and forms, and that such information is accumulated and communicated to our management, including our chief executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure. In addition, the design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, control may become inadequate because of changes in conditions, or the degree of compliance with policies or procedures may deteriorate.
Our management, with the participation of our principal executive officer and our principal financial officer, evaluated, as of the end of the period covered by this Annual Report on Form 10-K, the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act. Based on that evaluation, our principal executive officer and principal financial officer have concluded that as of December 31, 2020, our disclosure controls and procedures were effective at the reasonable assurance level. Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and our management necessarily applies its judgement in evaluating the cost-benefit relationship of possible controls and procedures.
Internal control over financial reporting is a process designed under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP. Our internal control over financial reporting includes those policies and procedures that: (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. GAAP, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on the financial statements. Because of its inherent limitations, internal controls over financial reporting may not prevent or detect all misstatements.
As of December 31, 2020, our management assessed the effectiveness of our internal control over financial reporting using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control-Integrated Framework (2013). Based on this assessment, our management concluded that, as of December 31, 2020, our internal control over financial reporting was effective based on those criteria.
This Annual Report on Form 10-K does not include an attestation report of our registered public accounting firm due to an exemption provided by the JOBS Act for "emerging growth companies."
There have been no changes in our internal control over financial reporting during the three months ended December 31, 2020 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
### Part IV
Item 15.
(1) All financial statements
The financial statements of Exagen Inc., together with the report thereon of BDO USA, LLP, an independent registered public accounting firm, are included in the Form 10-K beginning on page 96.
(2) Financial statement schedules
All schedules have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto.
(3) Exhibits
The following exhibits, as required by Item 601 of Regulation S-K, are incorporated by reference or are filed with this Amendment No. 1, in each case as indicated therein.
*
This certification is deemed not filed for purpose of section 18 of the Exchange Act or otherwise subject to the liability of that section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act.
#Indicates management contract or compensatory plan.
Portions of this exhibit (indicated by asterisks) have been omitted for confidentiality purposes.
### Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report on Form 10-K has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
### Title
Date
/s/ Fortunato Ron Rocca
April 1, 2021
Fortunato Ron Rocca
/s/ Kamal Adawi
### Chief Financial Officer and Corporate Secretary
April 1, 2021
Kamal Adawi
*
April 1, 2021
Brian Birk
*
### Director
April 1, 2021
Jeff Elliott
*
### Director
April 1, 2021
Wendy S. Johnson
*
### Director
April 1, 2021
Tina S. Nova, Ph.D.
*
### Director
April 1, 2021
Ebetuel Pallares, Ph.D.
*
### Director
April 1, 2021
Bruce C. Robertson, Ph.D.
*
### Director
April 1, 2021
James L.L. Tullis
*By:
/s/ Fortunato Ron Rocca
### Fortunato Ron Rocca
Attorney-in-fact<|endoftext|>With the SEC on February 25, 2020).
10.11
Amended Insider Letter, dated as of July 27, 2020, by and between the Company, Sponsor, RSILP, Sellers Representative and the other parties thereto (incorporated by reference to Exhibit 10.1 of the Companys Current Report on Form 8-K/A filed with the SEC on July 28, 2020).
10.12
Form of Fidelity Subscription Agreement (incorporated by reference to Exhibit 10.2 of the Companys Current Report on Form 8-K/A filed with the SEC on July 28, 2020).
10.13
Form of Other Subscription Agreements (incorporated by reference to Exhibit 10.3 of the Companys Current Report on Form 8-K/A filed with the SEC on July 28, 2020).
10.14
Investment Management Trust Agreement, dated February 20, 2020, by and between the Company and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 10.2 of the Companys Current Report on Form 8-K filed with the SEC on February 25, 2020).
10.15
Registration Rights Agreement, dated February 20, 2020, by and among the Company, Sponsor and the other holders party thereto (incorporated by reference to Exhibit 10.3 of the Companys Current Report on Form 8-K filed with the SEC on February 25, 2020).
10.16
Private Placement Warrants Purchase Agreement, dated February 20, 2020, by and among the Company and Sponsor (incorporated by reference to Exhibit 10.4 of the Companys Current Report on Form 8-K filed with the SEC on February 25, 2020).
10.17
Administrative Services Agreement, dated February 20, 2020, by and between the Company and Sponsor (incorporated by reference to Exhibit 10.5 of the Companys Current Report on Form 8-K filed with the SEC on February 25, 2020).
10.18
Rush Street Interactive Inc. 2020 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 10.8 of the Companys Current Report on Form 8-K filed with the SEC on January 5, 2020).
10.19
Amendment to Rush Street Interactive, Inc. 2020 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 10.19 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
10.20
Form of Restricted Stock Unit Agreement (incorporated by reference to Exhibit 10.20 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
10.21
Form of Incentive Stock Option Agreement (incorporated by reference to Exhibit 10.21 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
10.22
Form of Non-Qualified Stock Option Agreement (incorporated by reference to Exhibit 10.22 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
10.23
Form of Performance Share Unit Agreement (incorporated by reference to Exhibit 10.23 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
10.24
Form of Put-Call Agreement (incorporated by reference to Exhibit 10.1 of the Companys Current Report on Form 8-K filed with the SEC on October 13, 2020).
10.25
Form of Indemnification Agreement (incorporated by reference to Exhibit 10.25 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
10.26
Offer Letter Agreement dated October 5, 2020, by and between RSILP and Kyle Sauers (incorporated by reference to Exhibit 10.26 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
10.27
Confidentiality and Restrictive Covenant Agreement dated October 5, 2020, by and between RSILP and Kyle Sauers (incorporated by reference to Exhibit 10.27 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
10.28
Recapitalization Agreement, dated as of July 27, 2020, by and among the Sellers, RSILP and Sellers Representative (incorporated by reference to Exhibit 10.28 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
14.1
Rush Street Interactive Inc. Code of Ethics (incorporated by reference to Exhibit 14.1 of the Companys Current Report on Form 8-K filed with the SEC on January 5, 2020).
21.1
List of subsidiaries of the registrant (incorporated by reference to Exhibit 21.1 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
23.1
Consent of WithumSmith+Brown, PC, independent registered public accounting firm of the Company (incorporated by reference to Exhibit 23.1 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
24.1
Powers of Attorney (incorporated by reference to the signature page of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
31.1
Certifications of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (incorporated by reference to Exhibit 31.1 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
31.2
Certifications of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (incorporated by reference to Exhibit 31.2 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
31.3*
Certifications of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.4*
Certifications of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1
Certifications of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002(incorporated by reference to Exhibit 32.1 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
32.2
Certifications of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (incorporated by reference to Exhibit 32.2 of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
101.INS
XBRL Instance Document (incorporated by reference to Exhibit 101.INS of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
101.SCH
XBRL Taxonomy Extension Schema Document (incorporated by reference to Exhibit 101.SCH of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
101.CAL
XBRL Taxonomy Extension Calculation Linkbase Document (incorporated by reference to Exhibit 101.CAL of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
101.DEF
XBRL Taxonomy Extension Definition Linkbase Document (incorporated by reference to Exhibit 101.DEF of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
101.LAB
XBRL Taxonomy Extension Label Linkbase Document (incorporated by reference to Exhibit 101.LAB of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
101.PRE
Taxonomy Extension Presentation Linkbase Document (incorporated by reference to Exhibit 101.PRE of the Companys Annual Report on Form 10-K filed with the SEC on March 25, 2021).
* Filed herewith.
A management contract or compensatory plan or arrangement required to be filed as an exhibit pursuant to Item 601 of Regulation S-K.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Mailed to our office at 50 Division Street, Suite 501, Somerville, New Jersey 08876.
Board and Committee Meetings
Our board of directors held no formal meetings during the year ended December 31, 2019. Such resolutions consented to in writing by the directors entitled to vote on that resolution at a meeting of the directors are, according to the Nevada General Corporate Law and our Bylaws, as valid and effective as if they had been passed at a meeting of the directors duly called and held.
### Nomination Process
As of December 31, 2019, we did not effect any material changes to the procedures by which our shareholders may recommend nominees to our board of directors. Our board of directors does not have a policy with regards to the consideration of any director candidates recommended by our shareholders. If shareholders wish to recommend candidates directly to our board, they may do so by sending communications to the president of our company at the address on the cover of this annual report.
Audit Committee
We do not have a standing audit committee as we currently have limited working capital and minimal revenues. Should we be able to raise sufficient funding to execute our business plan, we will form an audit, compensation committee and other applicable committees utilizing our directors expertise.
We do not currently have a director who is qualified to act as the head of the audit committee.
Item 11. Executive Compensation
(a) our principal executive officer;
(b) each of our two most highly compensated executive officers who were serving as executive officers at the end of the years ended December 31, 2020 and 2019; and
(c) up to two additional individuals for whom disclosure would have been provided under (b) but for the fact that the individual was not serving as our executive officer at the end of the years ended December 31, 2020 and 2019, who we will collectively refer to as the named executive officers of our company, are set out in the following summary compensation table, except that no disclosure is provided for any named executive officer, other than our principal executive officers, whose total compensation did not exceed $100,000 for the respective fiscal year:
Our directors and executive officers may receive share options at the discretion of our board of directors in the future. We do not have any material bonus or profit sharing plans pursuant to which cash or non-cash compensation is or may be paid to our directors or executive officers, except that share options may be granted at the discretion of our board of directors.
The Company has yet to formally adopt an equity compensation plan. However, stock options were granted during the fiscal year ended December 31, 2020.
During our fiscal year ended December 31, 2020, there were no options exercised by our named officers.
The Company has not compensated any Board members for their participation on the Board and does not have any standard or other arrangements for compensating them for such services. The Company may issue shares of common stock or options to acquire shares of the Companys common stock to members of the Board in consideration for their services as members of the Board. The Company does expect to reimburse Directors for expenses incurred in connection with their attendance at meetings of the Board.
Item 12.
The following table sets forth, as of April 13, 2021, certain information with respect to the beneficial ownership of our common and preferred shares by each shareholder known by us to be the beneficial owner of more than 5% of our common and preferred shares, as well as by each of our current directors and executive officers as a group. Each person has sole voting and investment power with respect to the shares of common and preferred stock, except as otherwise indicated. Beneficial ownership consists of a direct interest in the shares of common and preferred stock, except as otherwise indicated.
____________
* Represents less than 1%
(1)
Christopher Giordano beneficially owns 200,000 shares of Class B Preferred Stock, which is 100% percent of the outstanding shares in the class. The Class B Preferred shareholders vote together with the common stock as a single class and the holders of Class B Preferred are entitled to 10,000 votes per share.
(2)
Includes: (a) 3,005,715 shares of Common Stock held by Birchwood Capital Advisors, LLC, of which Christopher H. Giordano has voting and dispositive control, (b) 13,072 shares of Common Stock held by Bella Capital Holdings, (c) 16,572 shares of Common Stock held by Isabella Giordano, and (d) 67,500 shares on the Companys books as due and issuable to Christopher H. Giordano as of December 31, 2016.
(3)
Includes shares of Common Stock held by Maj-Britt Rosenbaum.
### Changes in Control
Item 13.
Except as disclosed herein, no director, executive officer, shareholder holding at least 5% of shares of our common stock, or any family member thereof, had any material interest, direct or indirect, in any transaction, or proposed transaction since the year ended December 31, 2019, in which the amount involved in the transaction exceeded or exceeds the lesser of $120,000 or one percent of the average of our total assets at the year-end for the last three completed fiscal years.
### Director Independence
We currently act with three directors, Scott Todd, Paul Serbiak, and Christopher H. Giordano.
We have determined that Scott Todd, Paul Serbiak, and Christopher H. Giordano are independent directors, as that term is used in Rule 4200(a)(15) of the Rules of National Association of Securities Dealers.
We currently do not have nominating, compensation committees or committees performing similar functions. There has not been any defined policy or procedure requirements for shareholders to submit recommendations or nomination for directors.
From inception to present date, we believe that the members of our audit committee and the board of directors have been and are collectively capable of analyzing and evaluating our financial statements and understanding internal controls and procedures for financial reporting.
### Item 14.
LJ Soldinger Associates LLC has served as the Companys independent registered public accounting firm for years ended December 31, 2018 and December 31, 2017. Boyle CPA, LLC now serves as the Companys independent registered public accounting firm for December 31, 2019 and 2020. The aggregate fees billed for the most recently completed fiscal year ended December 31, 2020 and for fiscal year ended December 31, 2019 for professional services rendered by the principal accountant for the audit of our annual financial statements and review of the financial statements included in our quarterly reports on Form 10-Q and services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for these fiscal periods were as follows:
### PART IV
Item 15.<|endoftext|>Liquidation preference of $15,000,000, and (ii) a number of warrants, convertible into shares of the Companys Common Stock at an exercise price of $6.90per share (the New Private Placement Warrants), equal to50% of the liquidation preference of the preferred stock to be sold divided by the closing price of the Common Stock on a specified date (the New Private Placement). If the Company consummates the New Private Placement, the Company intends to deposit the net proceeds as necessary into the Proceeds Account (as defined herein), anduse the net proceeds for general corporate purposes. The Company cannot give any assurance that the New Private Placement will be completed on the terms described herein, on a timely basis or at all.
### February Follow-On Public Offering
The following is a summary of the contractual obligations as of December 31, 2020 and the effect of such obligations are expected to have on the liquidity and cash flows in future periods:
The Company has various debt covenants that require certain financial information to be met. If the Company does not meet the requirements of the debt covenants, the Company will be responsible for paying the full outstanding amount of the note immediately. As of December 31, 2020, we were in compliance with all relevant debt covenants.
The Company did not have any off-balancesheet arrangements as of December 31, 2020.
This discussion and analysis of the Companys financial condition and results of operations is based on the Companys consolidated financial statements, which have been prepared in accordance with generally accepted accounting principles in the United States of America, or U.S. GAAP. The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reported periods. In accordance with U.S. GAAP, the Company bases its estimates on historical experience and on various other assumptions the Company believes are reasonable under the circumstances.
For information on the Companys significant accounting policies please refer to Note 2 to the Companys Consolidated Financial Statements.
Item 7A.
The Company is not exposed to market risk related to interest rates on foreign currencies.
Item 8.
The financial statements required by this Item are included in Item 15 of this report and are presented beginning on page F-1.
Item 9.
None.
### Item 9A. Controls and Procedures
We maintain disclosure controls and procedures designed to ensure that the information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified under the rules and forms of the SEC. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures (as defined in paragraph (e) of Rules 13a-15 and 15d-15 under the Exchange Act) were not effective as December 31, 2020 due to material weaknesses in our internal control over financial reporting as described below.
Limitations on Internal Control over Financial Reporting
Our processes lacked timely and complete reviews and analysis of information used to prepare our financial statements and disclosures in accordance with accounting principles generally accepted in the United States of America.This material weakness resulted in a material error in our accounting for our Warrants and a Restatement of our previously issued financial statements are more fully described in the Explanatory Note in this report and in Note 2, to our consolidated financial statements included elsewhere in this report.
The Company is evaluating and remediating these weaknesses.
As a non-accelerated filer, the Company is not required to include in this report a report on the effectiveness of internal control over financial reporting by the Companys independent registered public accounting firm.
On April 23, 2021, we revised our prior position on accounting for our warrants and concluded that our previously issued (i) audited consolidated financial statements as of and for the year ended December 31, 2020 included in our Annual Report on Form 10-K for such period, and (ii) unaudited condensed consolidated financial statements for the three and nine months ended September 30, 2020 included in the Quarterly Report on Form 10-Q for such period, should not be relied on because of a misapplication in the guidance on warrant accounting. However, the restatement of the financial statements had no impact on the Companys liquidity or cash position.
During the quarter ended December 31, 2020, the Company was in the process of remediating its material weaknesses and to design an effective internal control environment. However, the circumstances that led to the restatement of our financial statements described in this Annual Report on Form 10-K/A had not yet been identified during the quarter ended December 31, 2020. We are in the process of improving our processes regarding the review and analysis of transactions to ensure that the nuances of such transactions are effectively evaluated in the context of the increasingly complex accounting standards. Specifically, we plan to provide enhanced access to accounting literature and research materials and consult with third party professionals regarding complex accounting matters. The elements of our remediation plan can only be accomplished over time, and we cannot guarantee that these initiatives will ultimately have the intended effects.
### Item 9B. Other Information
None.
PART III
Item 10.
The information required by this Item 10 is incorporated by reference to our Proxy Statement for the 2021 Annual Meeting of Stockholders.
### Item 11. Executive Compensation
The information required by this Item 11 is incorporated by reference to our Proxy Statement for the 2021 Annual Meeting of Stockholders.
Item 12.
The information required by this Item 12 is incorporated by reference to our Proxy Statement for the 2021 Annual Meeting of Stockholders.
Item 13.
The information required by this Item 13 is incorporated by reference to our Proxy Statement for the 2021 Annual Meeting of Stockholders.
### Item 14.
The information required by this Item 14 is incorporated by reference to our Proxy Statement for the 2021 Annual Meeting of Stockholders.
PART IV
Item 15.
### Financial Statements
The consolidated financial statements of the Company for the fiscal years covered by this Annual Report are located on beginning on page F-1 of this Annual Report.
*
Filed herewith.
+
Schedules to this exhibit have been omitted pursuant to Item 601(b)(2) of Registration S-K. The registrant hereby agrees to furnish a copy of any omitted schedules to the Commission upon request.
Item 16. Form 10K Summary.
Not applicable.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Procedures (as defined in Rules
13a-15(e) and
15d-15(e) under the Exchange Act) were not effective, due solely to the material weakness in our internal control over financial reporting described below in Changes in Internal Control Over Financial Reporting.
This Amendment does not include a report of managements assessment regarding internal control over financial reporting or an attestation report of the Companys registered public accounting firm due to a transition period established by rules of the SEC for newly public companies.
During the most recently completed fiscal year, there had been no change in our internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting, as the circumstances that led to the restatement of our financial statements described in this Amendment had not yet been identified. Due solely to the events that led to our restatement of our financial statements, management has identified a material weakness in internal controls related to the accounting for Warrants issued in connection with our Public Offering, as described in Note 2 to the Notes to Financial Statements entitled Restatement of Previously Issued Financial Statements.
On May 12, 2021, we revised our prior position on accounting for warrants and restated our financial statements to reclassify the Companys Warrants as described in the Explanatory Note to this Amendment.
Item9B.
Other Information.
None.
### PART III
Item14.
(1)
### Audit Fees
Audit fees consist of fees billed for professional services rendered by our independent registered public accounting firm for the audit of our annual financial statements and review of financial statements included in our Quarterly Reports on Form
10-Q, the audit of our December31, 2020 financial statements included in the Original Filing and the audit of our restated financial statements included in this Amendment, and services that are normally provided by our independent registered public accounting firm in connection with statutory and regulatory filings or engagements.
(2)
### Audit-Related Fees
(3)
### Tax Fees
(4)
### All Other Fees
Policy on Board
Non-Audit
### PART IV
Item15.
(a) The following documents are filed as part of this Amendment: Financial Statements: See Index to Financial Statements at Part II, Item 8. herein.
(b) Exhibits: The exhibits listed in the accompanying index to exhibits are filed or incorporated by reference as part of this Amendment.
ExhibitNo.
Description
2.1
and Plan of Reorganization, dated as of February 8, 2021, by and among DCRB, Merger Sub and the Company (incorporated by reference to Exhibit 2.1 to the Companys Current Report on Form
8-K
(File
No.
3.1
Amended and Restated Certificate of Incorporation of oration (incorporated by reference to Exhibit 3.1 to the Companys Current Report on Form
8-K
(File
3.2
Amended and Restated Bylaws of oration (incorporated by reference to Exhibit 3.4 to the Companys Registration Statement on Form
S-1
(File
4.1
S-1
(File
No.333-248958) filed with the SEC on October15, 2020)
4.2
S-1
(File
No. 333-248958) filed with the SEC on September30, 2020)
4.3
S-1
(File
4.4
Warrant Agreement, dated October 19, 2020, between oration and Continental Stock Transfer& Trust Company, as warrant agent (incorporated by reference to Exhibit 4.4 to the Companys Current Report on Form
8-K
(File
4.5
Description of Securities of oration (incorporated by reference to Exhibit 4.5 to the Companys Annual Report on Form
10-K
(File
No.001-39632) filed with the SEC on March1, 2021)
10.1
Letter Agreement, dated October 19, 2020, among oration, its officers and directors, Decarbonization Plus Acquisition Sponsor, LLC and WRG DCRB Investors, LLC (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form
8-K
(File
10.2
Insider Letter Acknowledgement and Agreement dated November 18, 2020, between oration and Michael Warren (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form
8-K
(File
No.001-39632) filed with the SEC on November18, 2020)
10.3
Investment Management Trust Agreement, dated October 19, 2020, between oration and Continental Stock Transfer & Trust Company, as trustee (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form
8-K
(File
No. 001-39632) filed with the SEC on October22, 2020)
10.4
Registration Rights Agreement, dated October 19, 2020, among oration, Decarbonization Plus Acquisition Sponsor, LLC and certain other security holders named therein (incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form
8-K
(File
10.5
Administrative Support Agreement, dated October 19, 2020, between oration and Decarbonization Plus Acquisition Sponsor, LLC (incorporated by reference to Exhibit 10.4 to the Companys Current Report on Form
8-K
(File
10.6
Amended and Restated Promissory Note, dated August 19, 2020, issued to Decarbonization Plus Acquisition Sponsor, LLC (incorporated by reference to Exhibit 10.1 to the Companys Registration Statement on Form
S-1
(File
10.7
S-1
(File
10.8
Securities Subscription Agreement, dated September 12, 2017, between the Registrant (f/k/a Silver Run Acquisition Corporation III) and Sponsor (f/k/a Silver Run Sponsor III, LLC) (incorporated by reference to Exhibit 10.5 to the Companys Registration Statement on Form
S-1
(File
No.333-232501) filed with the SEC on September22, 2020)
10.9
Private Placement Warrants Purchase Agreement, dated October 19, 2020, between oration and the Purchasers (incorporated by reference to Exhibit 10.5 to the Companys Current Report on Form
8-K
(File
10.10
### Lock-Up
Agreement, dated as of February 8, 2021, by and among DCRB, Hyzon and certain stockholders of Hyzon (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form
8-K
(File
No.
10.11
Founder Warrant Agreement, dated as of February 8, 2021, by and among DCRB, Sponsor and the other parties thereto (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form
8-K
(File
No.
10.12
Form of Subscription Agreement (incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form
8-K
(File
No.
10.13
Ardour Subscription Agreement, dated February 8, 2021, by and among DCRB, Ardour Capital Investments LLC and Hyzon (incorporated by reference to Exhibit 10.4 to the Companys Current Report on Form
8-K
(File
No.
Power of Attorney (incorporated by reference to Exhibit 24 to the Companys Annual Report on Form
10-K
(File
No. 001-39632) filed with the SEC on March1, 2021)
31.1*
13a-14(a) or Rule
15d-14(a)
31.2*
13a-14(a) or Rule
15d-14(a)
32.1*
13a-14(b) or Rule
15d-14(b) and 18 U.S.C. 1350
32.2*
13a-14(b) or Rule
15d-14(b) and 18 U.S.C. 1350
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
* Filed herewith.<|endoftext|>By a national securities exchange. Therefore, we intend that a majority of our directors will be independent directors of which at least one director will qualify as an audit committee financial expert, within the meaning of Item 407(d)(5) of Regulation S-K, as promulgated under the
### Securities Act of 1933
, as amended.
ITEM 11. EXECUTIVE COMPENSATION
### Summary Compensation
(b) each of our two most highly compensated executive officers who were serving as executive officers at the end of the year ended December 31, 2020; and who we will collectively refer to as the named executive officers, for all services rendered in all capacities to our company for the years ended December 31, 2020 and December 31, 2019 are set out in the following summary compensation table:
(1)
At our inception, Kenneth Tapp was appointed as our Chief Executive Officer, Chief Technology Officer, and Chairman.
(2)
Mark DiSiena was appointed as our Chief Financial Officer on November 1, 2018 and resigned February 24, 2020. Mark DiSiena is currently a contractor and is paid by our company.
(3)
Gregory Todd Markey was appointed as our head of investor relations on April 1, 2019; and was appointed as a Board Director as of January 21, 2020.
(4)
Year ended December 31, 2019.
(5)
Year ended December 31, 2020.
We have no contract, agreement, plan or arrangement, whether written or unwritten, that provides for payments to our directors or board advisors at, following, or in connection with the resignation, retirement or other termination of our directors or executive officers, or a change in control of our company or a change in our directors or executive officers responsibilities following a change in control.
The table below shows the compensation of our Directors and Board Advisors who were not our named executive officers for the fiscal year ended December 31, 2020:
(1)
Messrs. Bocskor, Granville and Keber were appointed as our directors on August 1, 2018, and resigned on January 21, 2020, but remained as Board Advisors through July 31, 2020.
(2)
During the time Leslie Bocskor was our Director and Advisor, he was the President/Founder of Electrum Partners, which received $35,000 in consulting fees for fiscal year 2020.
(3)
During Fiscal 2020, we paid our former Director and Advisor, Vincent Tripp Keber consulting fees of $30,000.
For a description of the terms of any agreement or understanding, whether written or unwritten, between our company and any officer or director concerning any type of compensation, whether present, deferred or contingent, that will be based on or otherwise will relate to an acquisition, merger, consolidation, sale or other type of disposition of all or substantially all assets of our company, see above under the heading Compensation Discussion and Analysis.
ITEM 12.
The following table sets forth, as of March 31, 2021, certain information with respect to the beneficial ownership of our common stock by each stockholder known by us to be the beneficial owner of more than 5% of any class of our voting securities and by each of our current directors, our named executive officers and by our current executive officers and directors as a group.
(1)
(2)
Percentage of common stock is based on 7,435,854,032 shares of our common stock issued and outstanding as of March __, 2020
(3)
Kenneth Tapp was appointed as Chief Executive Officer, Chief Technology Officer, and Chairman since our inception.
(4)
Brian Lazarus has been a Director since January 21, 2020.
(5)
Britt Glassburn has been a Director since January 21, 2020.
(6)
Gregory Todd Markey has been a Director since January 21, 2020.
(7)
Lynn Murphy has been a Director since January 21, 2020.
### Changes in Control
ITEM 13.
Other than as disclosed below, there has been no transaction, since January 1, 2021, or currently proposed transaction, in which our company was or is to be a participant and the amount involved exceeds $5,000 or one percent of our total assets at December 31, 2020, and in which any of the following persons had or will have a direct or indirect material interest:
(a) any director or executive officer of our company;
(b) any person who beneficially owns, directly or indirectly, more than 5% of any class of our voting securities;
(c) any person that is part of a group, consisting of two or more persons that agreed to act together for the purpose of acquiring, holding, voting or disposing of our common stock, that acquired control of our company when it was a shell company; and
(d) any member of the immediate family (including spouse, parents, children, siblings and in- laws) of any of the foregoing persons.
We have Technology Business Incubator (TBI) license agreements with MjLink.com Inc., LikeRE.com Inc., HuntPost.com Inc., RacketStar.com Inc., FutPost.com Inc., GolfLynk.com Inc., CycleFans.com Inc., WEnRV.com Inc., RaceDY.com Inc., and SpaceZE.com Inc. which provides that our TBI licensees pay us a license fee of 5% percentage of annual revenues generated, and 15% of their common stock, issuable immediately prior to a liquidity event such as an IPO or sale of 51% or more, of a licensees common stock. The 15% of common stock is non-dilutive prior to a liquidity event described above. Our Chief Executive Office, Kenneth Tapp owns less than 1% of our outstanding shares and is a board member of each of our TBI licensees. Ken Tapp owns less than 9.99% of the outstanding stock in each of our licensees. Pricing for the license agreements was set by our board of directors. This type of licensing agreement is standard for technology incubators and tech start-up accelerators.
Our related party revenue for Fiscal Year 2020 was $250,000 or 96.2% of our gross revenue.
During Fiscal Year 2020, we paid 2 of our Advisors, Leslie Bocskor and Vincent (Tripp) Keber $35,000 and $30,000for their consulting services, during fiscal year 2020.
From January 1, 2019, through December 31, 2020 Kenneth Tapp, from time-to-time provided short-term interest free loans amounting to $145,000 for the Companys operations; at year end 2020 we owed $113,675 to Kenneth Tapp.
See transactions with related parties in Notes 5 and 13 in the accompanying financial statements included in this document.
ITEM 14.
### Audit Fees
The following table sets forth the fees billed to our company for the year ended December 31, 2019 and 2018 for professional services rendered our independent registered public accounting firm BF Borgers CPA PC.
Our entire board of directors, which acts as our audit committee, pre-approves all services provided by our independent registered public accounting firm. All of the above services and fees were reviewed and approved by our board of directors before the respective services were rendered.
Our board of directors has considered the nature and amount of fees billed by BF Borgers CPA PC and believe that the provision of services for activities unrelated to the audit is compatible with maintaining its respective independence.
PART IV
ITEM 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
fuboTV Inc. 1) to amend and restate Item 9A. Controls and Procedures previously included in Part II of the Companys Annual Report on Form 10-K for the year ended December 31, 2020, which was initially filed with the U.S. Securities and Exchange Commission (the SEC) on March 25, 2021 (the Original Filing). 1 is to include the Companys inadvertently omitted conclusion that internal control over financial reporting was not effective as of December 31, 2020 due to the material weaknesses described in the Original Filing. Amendment No. 1 also clarifies that the remediation measures the Company undertook in the fourth quarter of 2020 constituted changes in the Companys internal control over financial reporting.
Pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended, the Company is also including Item 15 of Part IV, solely to file the certifications required under Section 302 of the Sarbanes-Oxley Act of 2002 with this Amendment No. 1.
1 does not amend, modify, or otherwise update any other information in the Original Filing and does not reflect events occurring after the filing of the Original Filing. 1 should be read in conjunction with the Original Filing and the Companys other filings with the SEC.
### PART II
Item 9A. Controls and Procedures.
We carried out an evaluation as required by paragraph (b) of Rule 13a-15 and 15d-15 of the Exchange Act, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act as of December 31, 2020. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were not effective as of December 31, 2020 due to the material weaknesses in internal control over financial reporting described below:
The Company did not have appropriately designed internal controls in place at the time the Merger was consummated on April 1, 2020 with respect to the accounting for the business combination and the allocation of consideration to the acquired assets and assumed liabilities, including deferred income taxes.
The Companys internal controls over the review of accounting considerations for non-routine transactions and events was not appropriately designed with respect to the timing and consistency of performance.
Report of Management on Internal Controls over Financial Reporting.
As of December 31, 2020, management completed an assessment of the Companys internal control over financial reporting based on the 2013 Committee of Sponsoring Organizations (COSO) framework. Based on that assessment, management concluded that our internal control over financial reporting was not effective as of December 31, 2020 due to the material weaknesses in internal control over financial reporting described herein.
Notwithstanding such material weaknesses in internal control over financial reporting, our management concluded that our consolidated financial statements in this Annual Report on Form 10-K present fairly, in all material respects, the companys financial position, results of operations and cash flows as of the dates, and for the periods presented, in conformity with U.S. GAAP.
### Managements Remediation Plan
In our Annual Report on Form 10-K/A for our fiscal year ended December 31, 2019, management identified material weaknesses in internal control over financial reporting. During 2020, management took steps to address the internal control deficiencies that contributed to the material weaknesses, including:
Transitioned responsibility over the accounting function to the finance personnel of fuboTV Pre-Merger, including individuals with prior experience working for finance departments of public companies;
Hired additional experienced finance and accounting personnel with technical accounting experience, supplemented by third-party resources;
Documented and formally assessed our accounting and financial reporting policies and procedures, and implemented segregation of duties in key functions;
Assessed significant accounting transactions and other technical accounting and financial reporting issues, prepared accounting memoranda addressing these issues and maintain these memoranda in our corporate records timely;
Improved the compilation processes, documentation, and monitoring of our critical accounting estimates; and
Implemented processes for creating an effective and timely close process.
Engaged a third-party provider to perform internal audit services, including assessing and improving our internal controls for compliance with the Sarbanes-Oxley Act.
We, with the oversight from the Audit Committee of the Board of Directors continue to implement the remediation plans for the aforementioned material weaknesses in internal control over financial reporting as follows:
We will continue to hire additional accounting personnel with appropriate GAAP technical accounting expertise, as necessary.
We are designing additional controls around identification, documentation, and application of technical accounting guidance with particular emphasis on complex and non-routine transactions. These controls are expected to include the implementation of additional supervision and review activities by qualified personnel, and the adoption of additional policies and procedures related to accounting and financial reporting.
We are implementing specific procedures in the review of tax accounting, designed to enhance our income tax controls.
We will continue to work with the third-party provider to strengthen our internal controls for compliance with the Sarbanes-Oxley Act.
We believe that these actions and the improvements we expect to achieve, when fully implemented, will strengthen our internal control over financial reporting and remediate the remaining material weaknesses.
We are committed to making further progress in our remediation efforts during 2021; however, if our remedial measures are insufficient to address the material weaknesses, or if one or more additional material weaknesses in our internal controls over financial reporting are discovered, we may be required to take additional remedial measures from our plan as disclosed above.
Except as described above, there have been no changes in our internal control over financial reporting identified in connection with the evaluation required by Rules 13a-15(d) and 15d-15(d) of the Exchange Act that occurred during our fourth quarter of 2020 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
### PART IV
ITEM 15.
(b) Exhibits
### Exhibit
Number
Description
31.1*
Certification of principal executive officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, as amended
31.2*
Certification of principal financial officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, as amended
* Filed herewith<|endoftext|>Placement units were added to the proceeds from the initial public offering to be held in the trust account. If the company does not complete a business combination within the combination period, the private placement units and the underlying securities will expire worthless.
### Related Party Loans
On September10, 2020, the sponsor agreed to loan the company an aggregate of up to $300,000 to cover for expenses related to the initial public offering pursuant to a promissory note. This loan was non-interest bearing and was payable upon the completion of the initial public offering. Prior to the initial public offering, the company borrowed approximately $128,000 under the note. On October26, 2020, the note was fully repaid.
In addition, in order to finance transaction costs in connection with a business combination, the sponsor or an affiliate of the sponsor, or certain of the companys officers and directors may, but are not obligated to, loan the company funds as may be required. In the event that a business combination does not close, the company may use a portion of the proceeds held outside the trust account to repay the working capital loans but no proceeds held in the trust account would be used to repay the working capital loans. The working capital loans would either be repaid upon consummation of a business combination, without interest, or, at the lenders discretion, up to $1.5million of such working capital loans may be convertible into units, at the price of $10.00 per unit at the option of the lender. Such units would be identical to the private placement units. To date, the company had no outstanding borrowings under the working capital loans.
Commencing on the effective date of the companys initial public offering, the company agreed to pay its Sponsor or an affiliate of its Sponsor a total of up to $10,000 per month for office space, secretarial and administrative support services. Upon completion of a business combination or the companys liquidation, the company will cease paying these monthly fees. The company incurred $20,000 in these fees for the period from the effective date of the initial public offering through December31, 2020, which is included in general and administrative fees related party on the accompanying statement of operations.
Consulting and Advisory Services Agreements
Commencing on the effective date of the companys initial public offering, the company agreed to pay Cerberus Operations and Advisory Company, LLC (COAC) and Cerberus Technology Solutions, LLC (CTS) certain fees and direct and allocable compensation costs, as well as reimbursement for any out-of-pocket expenses, to the extent that COAC or CTS provide advisory services to the company prior to the completion of a business combination. For the period from the effective date of the initial public offering through December31, 2020, the company incurred approximately $138,000 of these services, which is included in general and administrative fees related party on the accompanying statement of operations.
It is unlikely the amount of such compensation will be known at the time of distribution of such tender offer materials or at the time of a shareholder meeting held to consider our initial business combination, as applicable, as it will be up to the directors of the post-combination business to determine executive and director compensation. Specifically, after the completion of the Proposed Transaction, directors or members of our management team who remain with KORE may be paid consulting or management fees from KORE. It is unlikely the amount of management and executive compensation will be known at the time of the proposed business combination, because the directors of KORE will be responsible for determining executive officer and director compensation. Any compensation to be paid to our executive officers will be determined, or recommended to the board of directors of KORE for determination, by a compensation committee constituted solely of independent directors or a majority of the independent directors on KOREs board of directors.
We entered into a registration and shareholder rights agreement pursuant to which our sponsor will be entitled to certain registration rights with respect to the private placement units, the warrants issuable upon conversion of working capital loans (if any) and the ClassA ordinary shares issuable upon exercise of the foregoing and upon conversion of the founder shares, and, upon consummation of our initial business combination, to nominate three individuals for election to our board of directors, as long as the sponsor holds any securities covered by the registration and shareholder rights agreement.
Furthermore, in connection with the proposed business combination with KORE, we have entered and intend to enter into certain agreements with certain of our affiliates, including the Sponsor. See Item1. BUSINESS Overview.
The audit committee of our board of directors operates pursuant to a charter that provides for the review, approval and/or ratification of related party transactions, which are those transactions required to be disclosed pursuant to Item 404 of Regulation
and our affairs are governed by our amended and restated memorandum and articles of association, the Companies Law and the common law of the Cayman Islands. Pursuant to our amended and restated memorandum and articles of association, we are authorized to issue 500,000,000 ClassA ordinary shares and 50,000,000 ClassB ordinary shares, as well as 5,000,000 preference shares, $0.0001 par value each. The following description summarizes the material terms of our shares as set out more particularly in our amended and restated memorandum and articles of association. Because it is only a summary, it may not contain all the information that is important to you.
Item14.
The following is a summary of fees paid to WithumSmith+Brown, PC, for services rendered.
Audit Fees. Audit fees consist of fees billed for professional services rendered for the audit for the period from September8, 2020 (inception) through December31, 2020 financial statements, reviews of our quarterly financial statements and services that are normally provided by our independent registered public accounting firm in connection with statutory and regulatory filings. The aggregate fees billed by WithumSmith+Brown, PC for audit fees, inclusive of required filings with the SEC for the period from September8, 2020 (inception) through December31, 2020 including the services rendered in connection with our initial public offering, totaled $88,065.
Audit-Related Fees. Audit-related fees consist of fees billed for assurance and related services that are reasonably related to performance of the audit or review of the period from September8, 2020 (inception) through December31, 2020 financial statements and are not reported under Audit Fees.
Tax Fees.
All Other Fees. For the period from September8, 2020 (inception) through December31, 2020, WithumSmith+Brown, PC did not render any of these other services.
### Pre-Approval
Policy
### PART IV
Item15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Initial business combination, our Sponsor will sell an aggregate of 1,518,000 shares of Class B common stock to our Anchor Investor for the same price originally paid for such shares by our Sponsor. Our Anchor Investor has agreed that if it beneficially holds less than 2,112,000 Public Shares upon consummation of our initial business combination, then the number of shares of Class B common stock that our Anchor Investor will be entitled to purchase from our Sponsor upon consummation of our initial business combination will be reduced by 70%. The shares of Class B common stock (including the Class A common stock issuable upon conversion thereof) may not, subject to certain limited exceptions, be transferred, assigned or sold by the holder.
Our Sponsor and Anchor Investor purchased an aggregate of 8,624,000 Private Placement Warrants at a price of $1.00 per Private Placement Warrant in the Private Placement. The Private Placement Warrants (including the Class A common stock issuable upon exercise thereof) may not, subject to certain limited exceptions, be transferred, assigned or sold by the holder.
If any of our officers or directors becomes aware of an initial business combination opportunity that falls within the line of business of any entity to which he or she has then-current fiduciary or contractual obligations, he or she will honor his or her fiduciary or contractual obligations to present such business combination opportunity to such other entity.
No compensation of any kind, including any finders fee, reimbursement, consulting fee or monies in respect of any payment of a loan, will be paid by us to officers or directors prior to, or in connection with any services rendered in order to effectuate, the consummation of an initial business combination (regardless of the type of transaction that it is). Our audit committee reviews, on a quarterly basis, all payments made to our Sponsor, officers, directors or our or their affiliates and determines which expenses and the amount of expenses that will be reimbursed.
Our Sponsor agreed to loan us up to $300,000 to be used for a portion of the expenses of the Initial Public Offering. We borrowed an aggregate of approximately $174,000 under the promissory note, which was repaid in full with funds held outside of the trust account upon the closing of the Initial Public Offering.
In the event that the initial business combination does not close, we may use a portion of the working capital held outside the trust account to repay such loaned amounts but no proceeds from our trust account will be used for such repayment. We do not expect to seek loans from parties other than our Sponsor or an affiliate of our Sponsor or certain of our officers or directors as we do not believe third parties will be willing to loan such funds and provide a waiver against any and all rights to seek access to funds in our trust account.
We entered into a registration and stockholder rights agreement with respect to the registration for resale under the Securities Act of the Private Placement Warrants, the warrants issuable upon conversion of working capital loans (if any) and the shares of Class A common stock issuable upon exercise of the foregoing and upon conversion of the shares of Class B common stock, and, with respect to the right of our Sponsor to nominate three individuals for election to our board of directors upon consummation of our initial business combination.
We have adopted a Code of Business Conduct and Ethics requiring us to avoid, wherever possible, all conflicts of interests, except under guidelines or resolutions approved by our board of directors (or the appropriate committee of our board) or as disclosed in our public filings with the SEC.
In addition, our audit committee, pursuant to its charter, is responsible for reviewing and approving related party transactions to the extent that we enter into such transactions.
To further minimize conflicts of interest, we have agreed not to consummate an initial business combination with an entity that is affiliated with any of our Sponsor, officers or directors unless, to the extent required by applicable law or our board of directors, we, or a committee of independent directors, have obtained an opinion from an independent investment banking firm or an independent accounting firm that our initial business combination is fair to our company from a financial point of view. No finders fees, reimbursements, consulting fee, monies in respect of any payment of a loan or other compensation will be paid by us to our Sponsor, officers or directors, or any affiliate of our Sponsor, officers or directors, for services rendered to us prior to, or in connection with the consummation of our initial business combination (regardless of the type of transaction that it is). However, the following payments will be made to our Sponsor, officers or directors, or our or their affiliates, none of which will be made from the funds held in the trust account prior to the completion of our initial business combination:
Payment to our Sponsor of $20,000 per month, for up to 24 months, for office space, utilities and administrative support;
and
Our audit committee review, on a quarterly basis, all payments made to our Sponsor, officers or directors, or our or their affiliates.
### Director Independence
We have three independent directors as defined in the Nasdaq listing rules and applicable SEC rules. Our board has determined that each of Michael Donovan, Brian Griffin and Jeanne Manischewitz are independent directors under applicable SEC and Nasdaq listing rules.
Item 14.
Audit Fees
During the period from August 26, 2020 (inception) through December 31, 2020, fees for our independent registered public accounting firm were approximately $54,075 for the services Withum performed in connection with our Initial Public Offering and the audit of our December 28, 2020 financial statements included in this Form 8-K as filed with SEC on January 4, 2021.
### Audit-Related Fees.
During the period from August 26, 2020 (inception) through December 31, 2020, our independent registered public accounting firm did not render assurance and related services related to the performance of the audit or review of financial statements.
Tax Fees
During the period from August 26, 2020 (inception) through December 31, 2020, our independent registered public accounting firm did not render services to us for tax compliance, tax advice and tax planning.
### All Other Fees
During the period from August 26, 2020 (inception) through December 31, 2020, there were no fees billed for products and services provided by our independent registered public accounting firm other than those set forth above.
Pre-Approval Policy
### PART IV
Item 15.
(a)
The following documents are filed as part of this Form 10-K/A:
(1)
Financial Statements:
(2)
None.
(3)
### Exhibits
The exhibits listed below are filed as part of this Form 10-K/A other than Exhibit 32.1, which shall be deemed furnished
*
Filed herewith.
**
Furnished herewith
+
Item 16.
### Form 10-K Summary
None.<|endoftext|>Of March12, 2021.
(2)
The number of shares is based on the Schedule 13G/A filed with the SEC on February 2, 2021 by Franklin Resources Inc. and related reporting persons. According to the filing, (i) the beneficial owner has sole voting and dispositive power over 15,300,451 shares, and (ii) the beneficial owner does not have shared voting or dispositive power over any of the shares.
(3)
The number of shares is based on information in a notice of holdings required under applicable Irish law and received by the Company on February 23, 2021.
(4)
The number of shares is based on the Schedule 13G/A filed with the SEC on February 12, 2021 by Yacktman Asset Management LP and related reporting persons. According to the filing, (i) the beneficial owner has sole voting and dispositive power over 2,711,845 shares, and (ii) the beneficial owner has shared voting and dispositive power over an additional 5,443,901 shares.
(5)
The number of shares is based on the Schedule 13G/A filed with the SEC on February 16, 2021 by Oaktree Holdings, LLC and related reporting persons. According to the filing, (i) the beneficial owner reports sole voting and dispositive power over 6,919,730 shares, and (ii) the beneficial owner does not have shared voting or dispositive power over any of the shares.
(6)
The number of shares is based on the Schedule 13G/A filed with the SEC on February 4, 2021 by Exor N.V. According to the filing, (i) the beneficial owner reports sole voting and dispositive power over 4,832,164 shares, and (ii) the beneficial owner does not have shared voting or dispositive power over any of the shares.
(7)
The number of shares is based on the Schedule 13G filed with the SEC on February 11, 2021 by Barclays PLC and related reporting persons. According to the filing, (i) the beneficial owner reports sole voting and dispositive power over 4,727,610 shares, and (ii) the beneficial owner does not have shared voting or dispositive power over any of the shares.
The following table provides information as of December 31, 2020, about the number of shares to be issued upon vesting or exercise of equity awards as well as the number of shares remaining available for issuance under our equity compensation plans.
### Plan Category
(Shares in thousands, except share prices)
Numbers of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights
Number of Securities Available for Future Issuance Under Equity Compensation Plans
(a)
(b)
(a)
Excluding shares reflected in the first column of this table.
(b)
Includes the 2019 Plan, the adoption of which was approved in connection with our emergence from bankruptcy in December 2019. The 2019 Plan was amended and restated in 2020.
### Item 13.
None.
### Director Independence
While our ordinary shares have been delisted from the NYSE and deregistered under Section 12(b) of the Exchange Act, as a matter of continued corporate governance, we have voluntarily chosen to continue to follow certain NYSE and SEC rules and governance standards including, specifically, those governing director independence. The Board has affirmatively determined that each non-employee director is independent under the rules of the NYSE and the SEC. As contemplated by NYSE rules, the Board has adopted categorical standards to assist it in making independence determinations. These standards are available on our website at www.weatherford.com, by clicking on Investor Relations, then Corporate Governance, then Corporate Documents, then Corporate Governance Principles. However, in making independence determinations, the Board considers and reviews all relationships with each director, whether or not they fall within the categorical standards. None of the independent directors had relationships relevant to an independence determination that were outside the scope of the Boards categorical standards.
See Item 10. - Additional Board Information - Independence and Item 10. - Additional Board Information - Committee Member Qualifications for additional detail on the independence of the members on each of our committees and their satisfaction of the required qualification standards for membership on those committees.
Item 14.
Fees Paid to KPMG
The following table presents fees for professional audit services rendered by KPMG for the audit of the annual consolidated financial statements and statutory financial statements of Weatherford for the years ended December 31, 2020 and December31,2019 and fees billed for other services rendered by KPMG during those periods. All fees were approved by the Audit Committee pursuant to its pre-approval policy.
(1)
Audit fees consist of professional services rendered for the audit of Weatherfords annual financial statements, the audit of the effectiveness of Weatherfords internal controls over financial reporting and the reviews of Weatherfords quarterly financial statements. This category also includes fees for issuance of comfort letters, consents, assistance with and review of documents filed with the SEC, statutory audit fees, work performed by tax professionals in connection with the audit and quarterly reviews and accounting consultations and research work necessary to comply with the standards of the Public Company Accounting Oversight Board (United States). Fees are presented in the period to which they relate versus the period in which they were billed.
(2)
Audit-related fees include consultations concerning financial accounting and reporting matters not required by statute or regulation.
(3)
Tax fees consist of non-U.S. tax compliance, planning and U.S./non-U.S. tax-related consultation.
(4)
Other services performed include certain other advisory services and do not include any fees for financial information systems design and implementation.
The Audit Committee has established a pre-approval policy for all audit and non-audit services to be provided by our independent auditor, which was last reviewed and approved on February 25, 2021. There are two types of pre-approval. General pre-approval is based on pre-determined types of services. Specific pre-approval is required for certain types of services or if a service is expected to exceed budgeted amounts. Specific pre-approval must be obtained through direct communications with the Audit Committee or the Chair of the Audit Committee, to whom the Audit Committee has delegated pre-approval authority. The Chair of the Audit Committee must report any pre-approved decisions to the Audit Committee at its next scheduled meeting. During 2020, all audit and non-audit services performed by the independent auditor were subject to, and were approved pursuant to, the pre-approval policy.
The Audit Committee has designated the Companys Chief Assurance Officer to monitor and report on the performance of all services provided by our independent auditor and to determine whether such services are in compliance with the pre-approval policy. Accordingly, the Chief Assurance Officer periodically reports to the Audit Committee regarding the results of his monitoring.
### Part IV
Item 15.
The exhibits listed under Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
COMPENSATION
Employment Agreements
Index
ITEM 12.
The following table sets forth, as of March 8, 2021 unless otherwise indicated, certain information regarding beneficial ownership of ROCHs common stock by each person who is known by ROCH to beneficially own more than 5% of ROCHs common stock. The table also identifies the stock ownership of each of ROCHs directors, each of ROCHs officers, and all directors and officers as a group. Except as otherwise indicated, the stockholders listed in the table have sole voting and investment powers with respect to the shares indicated.
Shares of common stock which an individual or group has a right to acquire within 60days pursuant to the exercise or conversion of options, warrants or other similar convertible or derivative securities are deemed to be outstanding for the purpose of computing thepercentage ownership of such individual or group, but are not deemed to be outstanding for the purpose of computing thepercentage ownership of any other person shown in the table.
### less than 1%
(1)Unless otherwise indicated, the business address of each of the individuals is c/oRoth CH AcquisitionI Co., 888 San Clemente Drive, Newport Beach, CA 92660.
(2)Excludes shares issuable pursuant to warrants issued in connection with the IPO, as such warrants are not exercisable until the later of May7, 2021 and the consummation of the Business Combination.
(3)Includes shares owned by Roth Capital Partners, LLC. Byron Roth and Gordon Roth, both members of Roth Capital Partners, LLC, have voting and dispositive power over the shares held by Roth Capital Partners, LLC.
### Index
(4)Consists of shares owned by the AMG Trust Established January23, 2007, for which Aaron Gurewitz is trustee.
(5)Includes shares owned by Roth Capital Partners, LLC, over which Byron Roth and Gordon Roth have voting and dispositive power.
(6)Consists of shares owned by Hampstead Park Capital Management LLC, of which Mr.Friedberg is the managing member.
(7)Rick Hartfiel and at least three other individuals each have voting and dispositive power over the shares owned by Craig-Hallum Capital Group LLC. Under the so-called ruleof three, if voting and dispositive decisions regarding an entitys securities are made by three or more individuals, and a voting or dispositive decision requires the approval of a majority of those individuals, then none of the individuals is deemed a beneficial owner of the entitys securities. Based upon the foregoing analysis, the aforementioned individuals do not exercise voting or dispositive control over any of the securities held by Craig-Hallum Capital Group LLC, even those in which he directly holds a pecuniary interest.
(8) The information reported is based on a Schedule 13G filed on January 11, 2021. According to the Schedule 13G, as of December 31, 2020, BNP Paribas Asset Management UK Ltd. owned 1,026,618 shares of common stock.
ITEM 13.
As of December31, 2019, 2019, CR Financial Holdings,Inc., an entity affiliated with Roth Capital Partners, LLC, loaned ROCH an aggregate of $200,000, on a non-interest bearing basis, for payment of offering expenses on ROCHS behalf. In addition, at the closing of ROCHs IPO, each of ROCHs stockholders prior to ROCHs IPO committed to purchase from ROCH an aggregate of 262,500 (or 285,000 if the over-allotment option was exercised in full) Private Units at $10.00 per Private Unit (for a total purchase price of $2,625,000 (or $2,850,000 if the over-allotment option was exercised in full)). As of December31, 2020, ROCH had no loans outstanding, including any loans from its directors or officers.
Byron Roth, Gordon Roth and Aaron Gurewitz, the Chairman and Chief Executive Officer, Chief Financial Officer and Chief Operating Officer and Head of Equity Capital Markets, respectively, at Roth, and Rick Hartfiel and John Lipman, Managing Partner and Head of Investment Banking and Partner and Managing Director of Investment Banking, respectively, at C-H, are either officers or directors (or both, in the case of Byron Roth and John Lipman) of ROCH. While no direct compensation arrangements regarding such individuals have been entered into regarding such fees, these executives may benefit indirectly from any such amounts payable to their respective organizations in respect of deferred underwriting commissions and fees, placement agent fees and costs and expenses incurred by Roth and C-H in connection with the identification, review and negotiation and approval of the Business Combination.
### Related Party Policy
### Index
### Director Independence
ITEM 14.
Set forth below are approximate fees for services rendered by Marcum LLP, our independent registered public accounting firm, for the fiscal years ended December 31, 2020 and 2019.
Audit Fees
The Audit Fees are the aggregate fees of Marcum attributable to professional services rendered in 2020 and 2019 for the audit of our annual financial statements, for review of financial statements included in our quarterly reports on Form 10-Q or for services that are normally provided by Marcum in connection with statutory and regulatory filings or engagements for that fiscal year. These fees include fees billed for professional services rendered by Marcum for the review of registration statements or services that are normally provided in connection with statutory and regulatory filings or engagements for those fiscal years.
### Audit-Related Fees
Marcum did not perform or bill us for professional services that were reasonably related to the performance of the audit or review of financial statements in 2020 and 2019.
Tax Fees
Marcum did not perform any tax advice or planning services in 2020 or 2019.
### All Other Fees
Marcum did not perform any services for us or charge any fees other than the services described above in 2020 and 2019.
The Audit Committee is required to review and approve in advance the retention of the independent auditors for the performance of all audit and lawfully permitted non-audit services and the fees for such services. The Audit Committee may delegate to one or more of its members the authority to grant pre-approvals for the performance of non-audit services, and any such Audit Committee member who pre-approves a non-audit service must report the pre-approval to the full Audit Committee at its next scheduled meeting. The Audit Committee is required to periodically notify the Board of their approvals. The required pre-approval policies and procedures were complied with during 2020.
Index
PART IV
ITEM 15.
(a)
(1)
(2)
### Not applicable
(b)
Exhibits
### Index
* Filed herewith.
** Furnished herewith. This certification is being furnished solely to accompany this report pursuant to 18 U.S.C. Section 1350, and is not being filed for purposes of Section 18 of the Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filings of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.
+ Filed with Original Filing on March 9, 2021
ITEM 16.
### FORM10-K SUMMARY
Not Applicable.
Index<|endoftext|>The SEC.
Our management, including our principal executive officer and principal financial officer, do not expect that our disclosure controls and procedures or our internal control over financial reporting will prevent all errors and all fraud. The design of any system of controls is also based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; Due to inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
Item9B. Other Information.
None.
### PART III
Item10.
Refer to the information under the captions Election of Directors (Proposal No. 1) Directors and Management, Corporate Governance - Controlled Company Exemption, Corporate Governance - Other Board Information; Committees of the Board, Corporate Governance - Other Board Information; Code of Ethics and Conduct, Corporate Governance - Other Board Information; Compensation Committee Interlocks and Insider Participation and Corporate Governance - Delinquent Section 16(a) Reports in the Companys definitive Proxy Statement filed with the SEC on April 14, 2021 and delivered to stockholders in connection with the Annual Meeting of Stockholders to be held May 26, 2021, all of which information is incorporated herein by reference.
### Item11. Executive Compensation.
Refer to the information under the captions Executive Compensation - Introduction Executive Compensation - Summary Compensation Table, Executive Compensation - Outstanding Equity Awards at 2020 Fiscal Year-End; 2020 Pre-Business Combination Grants to NEOs, Executive Compensation - Outstanding Equity Awards at 2020 Fiscal Year-End; Closing Option Grants, Executive Compensation - Outstanding Equity Awards at 2020 Fiscal Year-End; Skillz Inc. 2020 Omnibus Incentive Plan, Corporate Governance - Director Compensation and Corporate Governance - Director Compensation Program in the Companys definitive Proxy Statement filed with the SEC on April 14, 2021 and delivered to stockholders in connection with the Annual Meeting of Stockholders to be held May 26, 2021, all of which information is incorporated herein by reference.
Item12.
Refer to the information under the captions Corporate Governance - Security Ownership of Certain Beneficial Owners, Directors and Management and Corporate Governance - Executive Compensation - Outstanding Equity Awards at 2020 Fiscal Year-End; Equity Compensation Plan Information in the Companys definitive Proxy Statement filed with the SEC on April 14, 2021 and delivered to stockholders in connection with the Annual Meeting of Stockholders to be held May 26, 2021, all of which information is incorporated herein by reference.
Item13.
Refer to the information under the captions Certain Relationships and Related Transactions and Corporate Governance - Independence of Directors in the Companys definitive Proxy Statement filed with the SEC on April 14, 2021 and delivered to stockholders in connection with the Annual Meeting of Stockholders to be held May 26, 2021, all of which information is incorporated herein by reference.
### Item14.
Refer to the information under the caption Fees of Independent Accountants in the Companys definitive Proxy Statement filed with the SEC on April 14, 2021 and delivered to stockholders in connection with the Annual Meeting of Stockholders to be held May 26, 2021, all of which information is incorporated herein by reference.
PART IV
Item15.
(a) We have filed the following documents as part of this Annual Report on Form 10-K/A:
1. Financial Statements
Our consolidated financial statements are listed in the Index to Consolidated Financial Statements and Schedule under Part II, Item 8 of this Annual Report on Form 10-K/A.
2. Exhibits
The documents listed in the Exhibit Index of this Annual Report on Form 10-K/A are incorporated by reference or are filed with this Annual Report on Form 10-K/A, in each case as indicated therein (numbered in accordance with Item 601 of Regulation S-K).
Exhibit No.
### Exhibit Description
Form
Exhibit
Filing Date
2.1
Merger Agreement, dated as of September 1, 2020, by and among Flying Eagle Acquisition Corp., FEAC Merger Sub Inc., Skillz Inc., and Andrew Paradise, solely in his capacity as representative of the stockholders of Skillz Inc.
8-K(1)
2.1
9/2/20
3.1
Amended and Restated Certificate of Incorporation of Skillz Inc.
8-K
3.1
12/21/20
3.2
Amended and Restated Bylaws of Skillz Inc.
8-K
3.2
12/21/20
4.1
Form of Specimen Class A Common Stock Certificate of Skillz Inc.
8-K
4.1
12/21/20
4.2
Warrant Agreement, dated March 5, 2020, by and between Flying Eagle Acquisition Corp. and Continental Stock Transfer & Trust Company, as warrant agent
8-K(1)
4.1
3/10/20
4.3
Description of Skillz Inc.s Securities
10-K
4.3
3/12/21
10.1+
Skillz Inc. 2020 Omnibus Incentive Plan
### S-4(1)
Annex F
9/8/20
10.2+
Skillz Inc.
### S-4(1)
Annex G
9/8/20
10.3+
Form of Indemnification Agreement
8-K
10.1
2/26/21
10.4
Support Agreement, dated as of September 1, 2020, by and among Flying Eagle Acquisition Corp. and certain Supporting Stockholders of Skillz Inc.
8-K(1)
10.3
9/2/20
10.5
Eighth Amended and Restated Investors Rights Agreement, dated September 1, 2020, by and among Flying Eagle Acquisition Corp., Skillz Inc. and certain of its stockholders
8-K(1)
10.2
9/2/20
10.6
Earnout Escrow Agreement, dated December 16, 2020 by and among Skillz Inc., Andrew Paradise, solely in his capacity as representative of the stockholders of Skillz Inc., Eagle Equity Partners II LLC and Continental Stock Transfer & Trust Company
8-K
10.6
12/21/20
10.7
Director Nomination Agreement, dated December 16, 2020, by and between Skillz Inc. and Eagle Equity Partner II, LLC
8-K
10.7
12/21/20
10.8
and Andrew Paradise
8-K
10.8
12/21/20
10.9
and Casey Chafkin
8-K
10.9
12/21/20
10.10*
Amendment to Skillz Online Developer Terms and Conditions of Service, dated January 15, 2020, by and between Skillz Inc and Tether Studios, Inc.
S-4(1)
10.9
11/2/20
10.11+
Form of Option Agreement
8-K
10.11
12/21/20
10.12+
Skillz Inc. Executive Severance and Change in Control Plan
8-K
10.12
12/21/20
10.13+
Form of Severance Plan Participation Agreement
8-K
10.13
12/21/20
10.14
Investor Rights Agreement dated September 1, 2020 by and among Flying Eagle Acquisition Corp., Skillz Inc., and the stockholders named therein
8-K
10.14
12/21/20
21.1
List of Subsidiaries
10-K
21.1
3/12/21
23.1**
31.1**
31.2**
32.1**
32.2**
101.INS***
101.SCH***
101.CAL***
101.DEF***
Inline XBRL Definition Linkbase Document
101.LAB***
101.PRE***
(1) Filed by Flying Eagle Acquisition Corp.
* Certain portions of this exhibit have been omitted pursuant to Regulation S-K Item 601(b)(10)(iv). The Registrant agrees to furnish an unredacted copy of the exhibit to the SEC upon its request.
**Filed herewith.
***Submitted electronically with the report.
+ Management contract or compensatory plan or arrangement
Item16. Form 10-K Summary.
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Granted during the current period or prior periods.
The Companys directors who are also executive officers do not receive compensation for service on the Board of Directors or any of its committees. Effective July1, 2015, non-employee directors of the Company received pro-rated compensation increases for board and committee meeting attendance as well as retainer fees. On an annual basis, each non-employee director receives $1,150 for each board meeting in which they participate and annual retainer fees totaling $19,100. They also receive fees ranging from $375 to $750 for each committee meeting in which they participate. In addition, non-employee directors who serve as the chair of a committee receive additional retainer fees ranging from $3,000 to $9,200 per year.
The Companys directors are also reimbursed for reasonable and necessary out-of-pocket expenses incurred in connection with their service to the Company, including travel expenses.
Item
12.
The Company has 3,000,000 shares of Common Stock authorized for issuance under the 2020 Plan, of which 2,845,031 shares of stock are available for issuance as of April 30, 2021. The following table sets for the certain information regarding our 2020 Plan:
The table below provides certain information about beneficial ownership of Common Stock of the Company as of April 30, 2021 with respect to: (i)each person, or group of affiliated persons, who is known to the Company to own more than five percent (5%) of Company Common Stock; (ii)each of the Companys directors; (iii)each of the Companys executive officers; and (iv)all of the Companys directors and executive officers as a group.
Except as otherwise noted, to the knowledge of the Company, all persons listed below have sole voting and dispositive power with respect to all shares of Common Stock they beneficially own, except to the extent authority is shared by spouses under applicable law. Applicable percentage ownership is based on 3,946,576 shares of Common Stock outstanding. In computing the number of shares of Common Stock beneficially owned by a person and applicable percentage of ownership of that person, we deemed outstanding shares of Common Stock subject to options held by that person that are currently exercisable or exercisable within sixty (60)days of April 30, 2021.
Unless otherwise indicated, the address of each shareholder is in care of Patriot National Bancorp, Inc., 900 Bedford Street, Stamford,CT 06901.
*
Less than one percent (1%)
(1)
Includes 12,221 shares held by Solaia Capital Management Profit Sharing Plan for the benefit of Mr.Carrazza and 52,933 vested shares directly owned by Mr. Carrazza, with regard to which Mr.Carrazza has sole voting and dispositive power.
(2)
Includes 2,500 shares held in an IRA FBO for the benefit of Mr. Russell.
(3)
Includes 1,000 shares held in a SEP IRA for the benefit of Mr. Constantino.
(4)
Includes 626 shares held in an IRA for the benefit of Mr. Smyth.
Item
13.
In the ordinary course of business, the Bank has made loans to officers and directors (including loans to members of their immediate families and loans to companies of which a director owns 10% or more). There was one loan granted to a related party with an outstanding balance of $100,000 as of December31, 2020. In the opinion of management, all of such loans were made in the ordinary course of business of the Bank on substantially the same terms, including interest rates and collateral requirements, as those then prevailing for comparable transactions with persons not related to the lender. The Bank believes that at the time of origination these loans neither involved more than the normal risk of collectability nor presented any other unfavorable features.
As of December 31, 2020, deposits by related parties aggregated $189,000.
Information about transactions involving related persons is assessed by the Companys independent directors. Related persons include the Companys directors and executive officers as well as immediate family members of directors and officers. If the independent directors approve or ratify a material transaction involving a related person, then the transaction would be disclosed in accordance with the SEC rules. If the related person is a director, or a family member of a director, then that director would not participate in those discussions.
### Board Independence
The Company is subject to the listing standards of the SEC rules pertaining to director independence, and the Company believes that Messrs. Constantino, Smyth, Van den Bol and Weinbaum are independent directors as that term is defined by applicable listing standards of the Nasdaq stock market and SEC rules, including the rules relating to the independence standards of an audit committee and the non-employee definition of Rule 16b-3 promulgated under the Exchange Act.
Item
14.
The following table sets forth the aggregate amounts of principal accounting fees we paid to our independent registered public accountants for professional services performed in fiscal years ended December31, 2020 and 2019 for: (i)audit fees consisting of fees billed for services rendered for the audit of our annual financial statements and the review of our quarterly financial statements; (ii)audit-related fees consisting of fees billed for services rendered that are reasonably related to the performance of the audit or review of our financial statements and that are not reported as audit fees; (iii)tax fees consisting of fees billed for services rendered in connection with tax compliance, tax advice and tax planning; and (iv)all other fees consisting of fees billed for all other services rendered.
(1)
Audit fees with respect to the year ended December 31, 2020 and 2019 represent fees billed to the Company by RSM for professional services rendered in connection with RSMs quarterly reviews and annual audits.
(2)
Audit-related fees with respect to the year ending December 31, 2020 and 2019 represent fees paid to RSM.
The Audit Committee has adopted a policy for pre-approval of audit and permitted non-audit services by the Companys independent registered public accountants. The Audit Committee will consider annually and, if appropriate, approve the provision of audit services by its external auditor and consider and, if appropriate, pre-approve the provision of certain defined audit and non-audit services. The Audit Committee also will consider on a case-by-case basis and, if appropriate, approve specific engagements that are not otherwise pre-approved.
The Audit Committee will regularly review summary reports detailing all services being provided to the Company by its external auditor.
The Audit Committee approved the audit-related fees, tax fees and all other fees set forth above for the years ended December31, 2020 and 2019.
### PART IV
Item
15.
(b) Index to Exhibits
10.1
Patriot National Bancorp, Inc. 2020 Restricted Stock Award Plan*
31.1
Certification of CEO required by Section302 of the Sarbanes-Oxley Act of 2002*
31.2
Certification of CFO required by Section302 of the Sarbanes-Oxley Act of 2002*
32.1
Certification of CEO and CFO required by Section906 of the Sarbanes-Oxley Act of 2002*
*
Filed herewith<|endoftext|>The ON Semiconductor Corporation 2000 Employee Stock Purchase Plan, as amended as of May17, 2017 (incorporated by reference to Exhibit10.2 to the Companys Quarterly Report on Form10-Q filed with the Commission on August7, 2017)(2)
10.9
Amended and Restated Employment Agreement, effective June1, 2017, by and between Semiconductor Components Industries, LLC and Keith Jackson (incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed with the Commission on June2, 2017)(2)
10.10
Amended and Restated Employment Agreement, effective June1, 2017, by and between Semiconductor Components Industries, LLC and George H. Cave(incorporated by reference to Exhibit10.12 to the Companys Annual Report on Form10-K filed with the Commission on February 21, 2018)(2)
10.11(a)
Employment Agreement by and between Semiconductor Components Industries, LLC and Bernard Gutmann, dated as of September26, 2012 (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form8-K filed with the Commission on September27, 2012)(2)
10.11(b)
Amendment No.1 to Employment Agreement by and between Semiconductor Components Industries, LLC and Bernard Gutmann, dated as of June1, 2017 (incorporated by reference to Exhibit10.2 to the Companys Current Report on Form8-K filed with the Commission on June2, 2017)(2)
10.12(a)
Employment Agreement between Semiconductor Components Industries, LLC and William Schromm dated as of August25, 2014 (incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed with the Commission on August25, 2014)(2)
10.12(b)
Amendment No.1 to Employment Agreement by and between Semiconductor Components Industries, LLC and William Schromm, dated as of June1, 2017 (incorporated by reference to Exhibit10.4 to the Companys Current Report on Form8-K filed with the Commission on June2, 2017)(2)
10.13(a)
Employment Agreement between Semiconductor Components Industries, LLC and Paul Rolls dated as of July14, 2013 (incorporated by reference to Exhibit10.1 to the Companys Quarterly Report on Form10-Q filed with the Commission on May4, 2015)(2)
10.13(b)
Amendment No.1 to Employment Agreement by and between Semiconductor Components Industries, LLC and Paul Rolls, effective June1, 2017 (incorporated by reference to Exhibit10.21(b) to the Companys Annual Report on Form10-K filed with the Commission on February21, 2018)(2)
10.14
Employment Agreement by and between Semiconductor Components Industries, LLC and Vincent C. Hopkin, dated as of May 11, 2018 (incorporated by reference to Exhibit 10.2 to the Companys Quarterly Report on Form 10-Q filed with the Commission on July 30, 2018)(2)
10.15
Employment Agreement by and between Semiconductor Components Industries, LLC and Simon Keeton, dated January1, 2019 (incorporated by reference to Exhibit 10.20 to the Company's Annual Report on Form 10-K filed with the Commission on February 20, 2019)(2)
10.16
Employment Agreement by and between Semiconductor Components Industries, LLC and Hassane S.
10.17
Key Officer Severance and Change in Control Agreement by and between Semiconductor Components Industries, LLC and Ross F. Jatou, dated as of October 1, 2020 (1)(2)
10.18
Form of Indemnification Agreement with Directors and Officers (incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed with the Commission on February25, 2016)(2)
10.19(a)
Environmental Side Letter, dated March11, 1997, between National Semiconductor Corporation and Fairchild Semiconductor Corporation (incorporated by reference to Exhibit10.19 to Fairchild Semiconductor Corporations Registration Statement filed with the Commission on May12, 1997 (File No.333-26897))
10.19(b)
Intellectual Property License Agreement, dated April13, 1999, between Samsung Electronics Co., Ltd. and Fairchild Korea Semiconductor, Ltd. (incorporated by reference to Exhibit10.41 to Fairchild Semiconductor International, Inc.s Registration Statement filed with the Commission on June30, 1999 (File No.333-78557))
10.19(c)
Fairchild Benefit Restoration Plan (incorporated by reference to Exhibit10.23 to Fairchild Semiconductor Corporations Registration Statement filed with the Commission on May12, 1997 (File No.333-26897))(2)
10.19(d)
Technology Licensing and Transfer Agreement, dated March11, 1997, between National Semiconductor Corporation and Fairchild Semiconductor Corporation (incorporated by reference to Amendment No.3 to Fairchild Semiconductor Corporations Registration Statement on Form S-4, filed with the Commiss ion on
### July9, 1997 (File No.333-28697))
10.19(e)
Intellectual Property Assignment and License Agreement, dated December29, 1997, between Raytheon Semiconductor, Inc. and Raytheon Company (incorporated by reference to Fairchild Semiconductor International, Inc.s Current Report on Form8-K, dated December31, 1997, filed with the Commission on
### January13, 1998. (File No.333-26897))
10.20(a)
Asset Purchase Agreement, dated as of April 22, 2019, between GLOBALFOUNDRIES U.S. Inc. and Semiconductor Components Industries, LLC (incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q filed with the Commission on August 5, 2019)
10.20(b)
Amendment No. 1 to Asset Purchase Agreement, dated October 1, 2020, by and among Semiconductor Components Industries, LLC, GLOBALFOUNDRIES U.S. Inc., and GLOBALFOUNDRIES Inc. (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed with the Commission on October 7, 2020)
10.21
Settlement Agreement, dated October 19, 2019, by and between ON Semiconductor Corporation and Settlement Agreement, dated October 19, 2019, by and between ON Semiconductor Corporation and Power Integrations, Inc. (incorporated by reference to Exhibit 10.20 to the Company's Annual Report on Form 10-K filed with the Commission on February 19, 2020)
14.1
ON Semiconductor Corporation Code of Business Conduct effective as of August16, 2016 (incorporated by reference to Exhibit14.1 to the Companys Current Report on Form 8-K filed with the Commission on August24, 2016)
21.1
List of Significant Subsidiaries(1)
23.1
Consent of Independent Registered Public Accounting Firm-PricewaterhouseCoopers LLP(1)
24.1
Powers of Attorney(1)
31.1
Certification by CEO pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002(1)
31.2
Certification by CFO pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002(1)
Certification by CEO and CFO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002(3)
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
*
Reports filed under the Securities Exchange Act (Form 10-K, Form 10-Q and Form 8-K) are filed under File No. 000-30419 and File No. 001-39317.
(1)
Filed herewith.
(2)
(3)
### Furnished herewith.
Schedules or other attachments to these exhibits not filed herewith shall be furnished to the Commission upon request.
Item 16
### Form 10-K Summary
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Explanatory Note: This Amendment #1 is being filed solely for the purpose of including the Report for the Audited Financial Statements for the year ended April 30, 2019. It was inadvertently excluded from the original filing. There are no other changes to any part of this Form 10-K.
PART I
ITEM 1:
### BUSINESS
to Tactical Services, Inc.
Xian) (collectively Mr. Li and Mr.
ITEM 1A.
### RISK FACTORS
ITEM 1B.
ITEM 2.
### PROPERTIES
ITEM 3.
### LEGAL PROCEEDINGS
PART II
ITEM 5.
### Dividends
ITEM 6.
### SELECTED FINANCIAL DATA
ITEM 7.
The words "expects, intends, believes, anticipates, may, could, should" and similar expressions and variations thereof are intended to identify forward-looking statements.
Results of Operations for the Years Ended April 30, 2019 and 2018
The following summary of our results of operations should be read in conjunction with our audited financial statements for the years ended April 30, 2019 and 2018 which are included herein.
Our operating results for the years ended April 30, 2019 and 2018 are summarized as follows:
### Operating Revenues
During the years ended April 30, 2019 and 2018, our company did not record any revenues.
Operating expenses for the year ended April 30, 2019 were $33,997 compared to $50,634 for the year ended April 30, 2018. The decrease in operating expenses was due to an of $20,456 in office and general expenditures due to lower transfer agent costs and DTC eligibility costs as well as an increase of $3,819 in professional fees due to higher legal fees.
During the year ended April 30, 2019, we incurred a net loss of $34,638 compared to a net loss of $50,634 for the year ended April 30, 2018, due to the factors discussed above in addition to $641 in interest expense incurred during the year ended April 30, 2019.
Working Capital
Cash Flows
As at April 30, 2019 and 2018, the Company had no cash or assets in the Company.
As at April 30, 2019, we had total liabilities of $205,239 compared with $170,601 as at April 30, 2018. The increase in total liabilities was attributed to $5,732 of additional funding from related parties and the issuance of a $30,000 note payable to support our ongoing operating activities offset by a decrease of $1,094 in accounts payable and accrued liabilities relating to timing differences between the payment of outstanding obligations as they become due.
As at April 30, 2019, we had a working capital deficit of $205,239 compared with a working capital deficit of $170,601 as at April 30, 2018. The increase in working capital deficit was due to operating expenditures incurred during the year which were funded by financing from related parties.
During the year ended April 30, 2019, we used $35,732 of cash for operating activities as compared to $62,651 during the year ended April 30, 2018.
During the year ended April 30, 2019, the Company received $35,732 from financing activities as compared to $62,651 during the year ended April 30, 2018.
### Going Concern
The Company has a working capital deficit of $205,239 and has an accumulated deficit of $232,654.
Trends
Inflation
### Income Taxes
ITEM 7A.
ITEM 8.
ITEM 9.
None.
ITEM 9A.
### CONTROLS AND PROCEDURES
We carried out an evaluation, under the supervision and with the participation of our management, including our sole executive officer (who is our Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer), of the effectiveness of the design of our disclosure controls and procedures (as defined by Exchange Act Rules 13a-15(e) or 15d-15(e)) as of April 30, 2019 pursuant to Exchange Act Rule 13a-15. Based upon that evaluation, our Principal Executive Officer and Principal Financial Officer concluded that our disclosure controls and procedures were not effective as of April 30, 2019, in ensuring that information required to be disclosed by us in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the Securities and Exchange Commissions (the SEC) rules and forms.
Our management concluded, as of April 30, 2019, that our internal control over financial reporting was not effective.
In performing the above-referenced assessment, management had concluded that as of April 30, 2019, there were deficiencies in the design or operation of our internal control that adversely affected our internal controls which management considers to be material weaknesses including those described below: i)
ii)
There were no changes in our internal controls over financial reporting that occurred during the period ended April 30, 2019 that have materially affected, or are reasonably likely to materially affect, our internal controls over financial reporting.
ITEM 9B.
### OTHER INFORMATION
None.
PART III
ITEM 10.
### Name
Age
Position(s)
### Francisco Ariel Acosta
Since 2013, Mr. From 1988-1994, Mr.
Mr.
### Significant Employees
Family Relations
There are no family relationships among the directors and officers of Tactical Services, Inc.
Committees of the Board
### Audit Committee
### Code of Ethics
### Director Nominations
As of April 30, 2019, we did not affect any material changes to the procedures by which our shareholders may recommend nominees to our Board of Directors.
Mr.
ITEM 11.
### EXECUTIVE COMPENSATION.
ITEM 12.
The following table sets forth certain information as April 9, 2021, with respect to the beneficial ownership of our common stock for (i) each director and officer, (ii) all of our directors and officers as a group, and (iii) each person known to us to own beneficially five percent (5%) or more of the outstanding shares of our common stock. As of May 11, 2021, there were 76,000,000 shares of common stock outstanding.
### Category of
Shareholder
Name and Address of
### Beneficial Owner [1]
### Percent of
Class
### Francisco Ariel Acosta
65.78%
All
0.00%
5% Shareholders
0.00%
### TOTAL
65.78
(1)
None..
### Non-Cumulative Voting
Transfer Agent
ITEM 13.
As of April 30, 2019, the Company has received $170,080 (April 30, 2018 $164,348) in loans and payment of expenses from related parties, of which $5,732 and $62,651 were advanced during the years ended April 30, 2019 and 2018, respectively.
and we rely on our Board to review related party transactions on an ongoing basis to prevent conflicts of interest.
### Director Independence
During the fiscal year ended April 30, 2019, we had no independent directors on our board.
ITEM 14.
The Board of Directors pre-approved 100% of the audit, audit-related and tax services performed by the independent registered public accounting firm for the fiscal year ended April 30, 2019.
PART IV
ITEM 15.
### EXHIBITS
3.1(a)
Amended and Restated Articles of Incorporation (incorporated by reference from our Current Report on Form 8-K filed on October 25, 2017)
3.2
21.1
The Company has no subsidiaries.
31.1
*
31.2
*
Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes Oxley Act of 2002 *
32.1
*
32.2
**
101.1*
### Interactive Data Files
* Filed herewith
** Included in Exhibit 32.1<|endoftext|>As such, Barry Engle and Sam Gabbita have voting and investment discretion with respect to the Class B ordinary shares held of record by our sponsor and may be deemed to have shared beneficial ownership of the Class B ordinary shares held directly by our sponsor.
(5)
Our sponsor and our founding team have entered into an agreement with us, pursuant to which they have agreed to waive their redemption rights with respect to their founder shares and any public shares purchased during or after our Initial Public Offering in connection with (i) the completion of our initial business combination and (ii) a shareholder vote to approve an amendment to our amended and restated memorandum and articles of association (A) that would modify the substance or timing of our obligation to provide holders of our Class A ordinary shares the right to have their shares redeemed in connection with our initial business combination or to redeem 100% of our public shares if we do not complete our initial business combination within 24 months from the closing of our Initial Public Offering or (B) with respect to any other provision relating to the rights of holders of our Class A ordinary shares or pre-initial business combination activity.
The founder shares, private placement warrants and any Class A ordinary shares issued upon conversion or exercise thereof are each subject to transfer restrictions pursuant to lock- up provisions in the agreement entered into by our sponsor and our founding team. Our sponsor and our founding team have agreed not to transfer, assign or sell (i) any of their founder shares until the earliest of (A) one year after the completion of our initial business combination and (B) subsequent to our initial business combination, (x) if the closing price of our Class A ordinary shares equals or exceeds $12.00 per share (as adjusted for share sub-divisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after our initial business combination, or (y) the date on which we complete a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of our public shareholders having the right to exchange their ordinary shares for cash, securities or other property, and (ii) any of their private placement warrants and Class A ordinary shares issued upon conversion or exercise thereof until 30 days after the completion of our initial business combination. The foregoing restrictions are not applicable to transfers (a) to our officers or directors, any affiliates or family members of any of our officers or directors, any members or partners of our sponsor or their affiliates, any affiliates of our sponsor, or any employees of such affiliates; (b) in the case of an individual, by gift to a member of one of the individuals immediate family or to a trust, the beneficiary of which is a member of the individuals immediate family, an affiliate of such person or to a charitable organization; (e) by private sales or transfers made in connection with the consummation of a business combination at prices no greater than the price at which the founder shares, private placement warrants or Class A ordinary shares, as applicable, were originally purchased; (f) by virtue of our sponsors organizational documents upon liquidation or dissolution of our sponsor; (g) to the Company for no value for cancellation in connection with the consummation of our initial business combination; (h) in the event of our liquidation prior to the completion of our initial business combination; or (i) in the event of our completion of a liquidation, merger, share exchange or other similar transaction which results in all of our public shareholders having the right to exchange their Class A ordinary shares for cash, securities or other property subsequent to our completion of our initial business combination; provided, however, that in the case of clauses (a) through (f) these permitted transferees must enter into a written agreement agreeing to be bound by these transfer restrictions and the other restrictions contained in the letter agreement.
### Changes in Control
None.
Item 13.
On August 7, 2020, our sponsor paid $25,000, or approximately $0.0025 per share, to cover certain offering costs in consideration for 9,487,500 Class B ordinary shares. The founder shares (including the Class A ordinary shares issuable upon exercise thereof) may not, subject to certain limited exceptions, be transferred, assigned or sold by the holder.
Our sponsor has purchased 7,060,000 private placement warrants for a purchase price of $10,590,000 in a private placement that occurred simultaneously with the closing of our Initial Public Offering. As such, our sponsors interest in the Initial Public Offering is valued at $10,590,000. The private placement warrants and Class A ordinary shares issued upon the exercise or conversion thereof may not, subject to certain limited exceptions, be transferred, assigned or sold by the holder.
On January 28, 2021, we entered into an Administrative Services Agreement with Qell Operational Holdings LLC (Holdings), an affiliate of Qell Partners LLC (our sponsor), pursuant to which Holdings will provide certain administrative services to us and we will reimburse Holdings up to $50,000 a month, subject to adjustment in accordance with the terms of the agreement. In connection therewith, we terminated the Administrative Services Agreement between the Company and the sponsor, dated October 2, 2020.
We have entered into a registration and shareholder rights agreement pursuant to which our initial shareholders, and their permitted transferees, if any, are entitled to certain registration rights with respect to the private placement warrants, the securities issuable upon conversion of working capital loans (if any) and the Class A ordinary shares issuable upon exercise of the foregoing and upon conversion of the founder shares.
The Audit Committee of our board of directors has adopted a charter, providing for the review, approval and/or ratification of related party transactions, which are those transactions required to be disclosed pursuant to Item 404 of Regulation S-K as promulgated by the SEC, by the Audit Committee.
Director Independence
Our board of directors has determined that Steve Adams, David Cozzens, Kathleen Ligocki, Ryan Popple and Joseph Walker are independent directors as defined in Nasdaqs listing standards and applicable SEC rules.
### Item 14.
Audit Fees
The aggregate fees billed by Withum for audit fees, inclusive of required filings with the SEC for the period from August 7, 2020 (inception) through December 31, 2020, and of services rendered in connection with our initial public offering, totaled $94,245.
### Audit-Related Fees
We did not pay Withum any audit-related fees during the period from August 7, 2020 (inception) through December 31, 2020.
Tax Fees
We did not pay Withum any tax fees during the period from August 7, 2020 (inception) through December 31, 2020.
### All Other Fees
We did not pay Withum any other fees during the period from August 7, 2020 (inception) through December 31, 2020.
PART IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
### Explanatory Note
This Amendment No. 2 (Amendment No. 2) amends the Annual Report on Form 10-K of DraftKings Inc. (the Company, we, us or our) for the year ended December 31, 2020 (the Original Filing), filed on February 26, 2021 with the Securities and Exchange Commission (the SEC) and subsequently amended by Amendment No. 1, filed with the SEC on May 3, 2021 (Amendment No. 1). This Amendment No. 2 is being filed solely to (i) restate Part II, Item 9A. Controls and Procedures to reflect the conclusion of the Companys Principal Executive Officer and Principal Financial Officer that the Companys disclosure controls and procedures were not effective as of December 31, 2020 and (ii) file new certifications of the Companys Principal Executive Officer and Principal Financial Officer pursuant to Rules 13a-14 and 15d-14 promulgated under the Securities Exchange Act of 1934, as amended, as exhibits under Part IV, Item 15.
Notwithstanding this Amendment No. 2, management has concluded that the Companys audited consolidated financial statements included in Amendment No. 1 present fairly, in all material respects, the financial position of the Company at December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the periods presented, in conformity with U.S. GAAP).
Except as discussed above, the Company has not modified or updated disclosures presented in Amendment No. 1. 2 does not reflect events occurring after the Original Filing or Amendment No. 1, nor does it modify or update those disclosures affected by subsequent events or discoveries. It also does not affect information contained in the Original Filing which was not impacted by the restatement of the Companys consolidated financial statements and related disclosures in Amendment No. 1. Events occurring after the filing of the Original Filing or other disclosures necessary to reflect subsequent events have been or will be addressed in the Company's reports filed subsequent to the Original Filing. Capitalized terms used but not defined herein have the meanings set forth in Amendment No. 1.
This Amendment No. 2 should be read in conjunction with the Company's filings made with the SEC subsequent to the Original Filing, including any amendments to those filings.
### PART II
Item 9A. Controls and Procedures.
Prior to the Original Filing and Amendment No. 1, as required by Rules 13a-15 and 15d-15 under the Securities Exchange Act of 1934, as amended (the Exchange Act), our Chief Executive Officer and Chief Financial Officer carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as of December 31, 2020 and deemed them to be effective.
Amendment No. 1 was filed to include the Companys restated consolidated financial statements and related disclosures as of and for the year ended December 31, 2020 following the release by the Staff of the SEC of a statement on April 12, 2021, (the SEC Statement) expressing the view that warrants issued by special purpose acquisition companies such as those that were initially issued by Diamond Eagle Acquisition Corp. (DEAC) prior to merging with the Company (Assumed Warrants) may require classification as a liability of the entity measured at fair value, with changes in fair value each period reported in earnings.
Subsequent to, and as a result of that restatement, the Company has concluded that there was a material weakness in its operation of controls over the classification and accounting for the Assumed Warrants in accordance with Accounting Standards Codification 815-40, and solely as a result of the material weakness, its Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures were not effective as of December 31, 2020.
Notwithstanding this material weakness described above, we have concluded that the audited consolidated financial statements included in Amendment No. 1 present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the periods presented, in conformity with U.S. GAAP.
To remediate the material weakness, we studied and clarified our understanding of the accounting for contracts that may be settled in the Companys own stock, such as warrants, as highlighted in the SEC Statement and enhanced the accounting policy, controls and procedures related to the accounting for such contracts to determine proper accounting in accordance with U.S. GAAP as clarified by the SEC Statement. We restated our consolidated financial statements as of and for the year ended December 31, 2020 upon completing our evaluation of the SEC Statement. All necessary revisions are properly reflected in Amendment No. 1. While these actions are subject to ongoing management evaluation, including the validation and testing of internal controls over a sustained period of financial reporting cycles, we are committed to remediating internal controls deficiencies as they are identified and committed to the continuous improvement of our overall control environment.
We completed the Business Combination on April 23, 2020. Prior to the Business Combination, we were a special purpose acquisition company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or other similar business combination with one or more operating businesses. As a result, previously existing internal controls are no longer applicable or comprehensive enough as of the assessment date as our operations prior to the Business Combination were insignificant compared to those of the consolidated entity post-Business Combination. The design of internal controls over financial reporting for the Company post-Business Combination has required and will continue to require significant time and resources from management and other personnel. As a result, management was unable, without incurring unreasonable effort or expense to conduct an assessment of our internal control over financial reporting as of December 31, 2020. Accordingly, we are excluding management's report on internal control over financial reporting pursuant to Section 215.02 of the SEC Division of Corporation Finance's Regulation S-K Compliance & Disclosure Interpretations.
Other than as described above under Remediation of Material Weakness, there has been no change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during our most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting. However, we are continually monitoring the COVID-19 pandemic and any potential impact to our internal controls.
Limitations on Effectiveness of Controls and Procedures
Our disclosure controls and procedures are designed to provide reasonable assurance of achieving their objectives, as specified above. Our management recognizes that any control system, no matter how well designed and operated, is based upon certain judgments and assumptions and cannot provide absolute assurance that its objectives will be met.
PART IV
I tem 15.<|endoftext|>### Page
Explanatory Note
### Exhibit Index
Signatures
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A (this Amendment) is being filed by Wesbanco, Inc. (the Company) to amend the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2020, initially filed on February 26, 2021 (the Original Annual Report) to include the signature of Ernst & Young LLP, the Companys independent registered public accounting firm, in two separate places where such signatures were inadvertently omitted in the Original Annual Report. The signatures were timely provided by Ernst & Young LLP and received by the Company at the time of filing the Original Annual Report. Furthermore, this Amendment does not update or otherwise amend the Original Annual Report as previously filed for changes in events, estimates or other developments subsequent to the date of the filing of the Original Annual Report on February 26, 2021. The Report of Ernst & Young LLP, Independent Registered Public Accounting Firm Opinion on Internal Control over Financial Reporting and Opinion on the Financial Statements with the addition of the conformed signatures reads as follows:
We have audited Wesbanco, Inc.s internal control over financial reporting as of December31, 2020, based on criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Wesbanco, Inc.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December31, 2020 and 2019, the related consolidated statements of income, comprehensive income, changes in shareholders equity, and cash flows for each of the three years in the period ended December31, 2020, and the related notes and our report dated February26, 2021 expressed an unqualified opinion thereon.
### Basis for Opinion
/s/ Ernst & Young LLP
### Pittsburgh, Pennsylvania
February26, 2021
We have audited the accompanying consolidated balance sheets of Wesbanco, Inc. (the Company) as of December 31, 2020 and 2019, the related consolidated statements of income, comprehensive income, changes in shareholders' equity and cash flows for each of the three years in the period ended December 31, 2020, and the related notes (collectively referred to as the consolidated financial statements).
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated February 26, 2021 expressed an unqualified opinion thereon.
As discussed in Notes 1 and 5 to the consolidated financial statements, the Company changed its method for accounting for credit losses in 2020 due to the adoption of ASU 2016-13 (Topic 326), Measurement of Credit Losses on Financial Instruments. As explained below, auditing the Companys allowance for credit losses (ACL), including adoption of the new accounting guidance, was a critical audit matter.
Basis for Opinion
### Critical Audit Matter
Allowance for Credit Losses
On January 1, 2020, the Company adopted ASU 2016-13 (Topic 326), Measurement of Credit Losses on Financial Instruments, which resulted in an increase to the ACL of $41.4 million.The Companys loan portfolio totaled $10.8 billion as of December 31, 2020 and the associated ACL was $185.8 million. As discussed in Note 1 and 5 to the consolidated financial statements, the ACL reflects the lifetime expected losses on the Companys loan portfolio, including unfunded commitments.The ACL is calculated utilizing the probability of default / loss given default approach to calculate the expected loss for each segment, which is then discounted to net present value. The primary macroeconomic drivers of the quantitative model include forecasts of national unemployment and interest rates, as well as modeling adjustments for changes in prepayment speeds, loan risk grades, portfolio mix, concentrations and loan growth.The evaluation also considers qualitative factors such as economic trends and conditions.
Auditing managements ACL estimate and related provision for credit losses was complex due to the expected loss models used to compute the quantitative reserve and involves a high degree of subjectivity due to the judgment required in evaluating managements determination of the qualitative factors described above.
We obtained an understanding, evaluated the design, and tested the operating effectiveness of the Companys controls over the ACL process, including controls over the appropriateness over the ACL methodology, the expected loss models, the reliability and accuracy of data used in developing the ACL estimate, and managements review and approval process over the forecast, qualitative adjustments and overall ACL results.
With the assistance of EY specialists, we tested managements expected loss models including evaluating the conceptual soundness of model methodology, assessing model performance and governance, testing key model assumptions, including the reasonable and supportable forecast period, and independently recalculating model output.We also compared the underlying economic forecast data used to estimate the quantitative reserve to external sources to determine whether it was complete and accurate.
To test the qualitative factor adjustments, among other procedures, we assessed managements methodology and considered whether relevant risks were reflected in the models and whether adjustments to the model output were appropriate.We tested the completeness, accuracy, and relevance of the underlying data used to estimate the qualitative adjustments.We evaluated whether qualitative adjustments were reasonable based on changes in economic conditions and the loan portfolio.For example, we evaluated the reasonableness of qualitative adjustments for economic trends and conditions by independently comparing loan portfolio information.We also assessed whether qualitative adjustments were consistent with publicly available information (e.g. macroeconomic data).Further, we performed an independent search for the existence of new or contrary information relating to risks impacting the qualitative factor adjustments to validate that managements considerations are appropriate.Additionally, we evaluated whether the overall ACL, inclusive of qualitative factor adjustments, appropriately reflects losses expected in the loan portfolio by comparing to historical losses and peer bank data.
/s/ Ernst & Young LLP
We have served as the Companys auditor since 1996.
### Pittsburgh, Pennsylvania
February 26, 2021
EXHIBIT INDEX
### Exhibit
Number
Document
Location
31.1
Certification of Chief Executive Officer of Periodic Report Pursuant to Rule 13a-15(e) or Rule 15d-15(e).
*
31.2
Certification of Chief Financial Officer of Periodic Report Pursuant to Rule 13a-15(e) or Rule 15d-15(e).
*
32.1
*
**
*
Filed herewith
**
Filed electronically
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Letter, including our company entering into discussions regarding a transaction that would, if consummated, be reasonably likely to result in a Change of Control (unless Mr.Maffei has been released from such restrictions to the extent reasonably necessary for him to fully participate in any discussions (in his capacity as a stockholder) and to offer or propose alternative transactions involving himself and his Controlled Affiliates and third parties) or a third party commences a tender or exchange offer for at least 50.1% of our common stock which would result in a Change of Control of our company and which offer is not opposed by our company.
The foregoing is a summary of the Standstill Letter and is qualified by reference to the full text of the Standstill Letter
, which is incorporated by reference herein and filed as Exhibit99.1 to our Current Report on Form8-K filed with the SEC on December29, 2014.
### Director Independence
It is our policy that a majority of the members of our board of directors be independent of our management. For a director to be deemed independent, our board of directors must affirmatively determine that the director has no direct or indirect material relationship with us. To assist our board of directors in determining which of our directors qualify as independent for purposes of Nasdaq rulesas well as applicable rulesand regulations adopted by the SEC, the nominating and corporate governance committee of our board of directors follows Nasdaqs corporate governance ruleson the criteria for director independence.
Our board of directors has determined that each of Michael J. Malone, Chris Mueller, M. Gregory OHara, Larry E. Romrell and J. David Wargo qualifies as an independent director of our company.
Item 14.
### Audit Fees and All Other Fees
The following table presents fees incurred for professional audit services rendered by KPMG LLP for the audit of our consolidated financial statements for 2020 and 2019 and fees billed for other services rendered by KPMG LLP:
(1)
Such fees with respect to 2020 and 2019 exclude audit fees, audit related fees and tax fees billed by KPMG LLP to Tripadvisor for services rendered. Tripadvisor is a separate public company and its audit fees, audit related fees and tax fees (which aggregated $2,717,500 and $2,399,700 in 2020 and 2019, respectively) are reviewed and approved by the audit committee of the board of directors of Tripadvisor.
(2)
Tax fees consist of tax compliance and consultations regarding the tax implications of certain transactions.
Our audit committee has considered whether the provision of services by KPMG LLP to our company other than auditing is compatible with KPMG LLP maintaining its independence and believes that the provision of such other services is compatible with KPMG LLP maintaining its independence.
Policy on Pre-Approval of Audit and Permissible Non-Audit Services of Independent Auditor
Our audit committee has adopted a policy regarding the pre-approval of all audit and permissible non-audit services provided by our independent auditor. Pursuant to this policy, our audit committee has approved the engagement of our independent auditor to provide the following services (all of which are collectively referred to as pre-approved services
): audit services as specified in the policy, including (i)financial audits of our company and our subsidiaries, (ii)services associated with registration statements, periodic reports and other documents filed or issued in connection with securities offerings (including comfort letters and consents), (iii)attestations of management reports on our internal controls and (iv)consultations with management as to accounting or disclosure treatment of transactions; audit related services as specified in the policy, including (i)due diligence services, (ii)financial statement audits of employee benefit plans, (iii)consultations with management as to the accounting or disclosure treatment of transactions, (iv)attest services not required by statute or regulation, (v)certain audits incremental to the audit of our consolidated financial statements, (vi)closing balance sheet audits related to dispositions, and (vii)general assistance with implementation of the requirements of certain Securities and Exchange Commission (
SEC
) rulesor listing standards; and tax services as specified in the policy, including federal, state, local and international tax planning, compliance and review services, and tax due diligence and advice regarding mergers and acquisitions.
Notwithstanding the foregoing general pre-approval, if, in the reasonable judgment of our Senior Vice President and Principal Financial Officer, an individual project involving the provision of pre-approved services is likely to result in fees in excess of $50,000, or if individual projects under $50,000 are likely to total $250,000 during the period between the regularly scheduled meetings of the audit committee, then such projects will require the specific pre-approval of our audit committee. Our audit committee has delegated the authority for the foregoing approvals to the chairman of the audit committee, subject to his subsequent disclosure to the entire audit committee of the granting of any such approval. Chris Mueller currently serves as the chairman of our audit committee. In addition, the independent auditor is required to provide a report at each regularly scheduled audit committee meeting on all pre-approved services incurred during the preceding quarter. Any engagement of our independent auditors for services other than the pre-approved services requires the specific approval of our audit committee.
Under our policy, any fees incurred by Tripadvisor in connection with the provision of services by Tripadvisors independent auditor are expected to be reviewed and approved by Tripadvisors audit committee pursuant to Tripadvisors policy regarding the pre-approval of all audit and permissible non-audit services provided by its independent auditor in effect at the time of such approval. Such approval by Tripadvisors audit committee pursuant to its policy is deemed to be pre-approval of the services by our audit committee.
Our pre-approval policy prohibits the engagement of our independent auditor to provide any services that are subject to the prohibition imposed by Section201 of the Sarbanes-Oxley Act.
All services provided by our independent auditor during 2020 were approved in accordance with the terms of the policy.
### PARTIV
Item 15.
(a)(3)ExhibitsThe following exhibits to this Amendment No.1 on Form10-K/A are meant to supplement the Exhibits listed and/or filed in the Registrants Annual Report on Form10-K for the year ended December31, 2020, as amended:
31.3
31.4
101.INS
Inline XBRL Instance Document the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.**
101.SCH
101.CAL
Inline XBRL Taxonomy Calculation Linkbase Document.**
101.LAB
Inline XBRL Taxonomy Label Linkbase Document.**
101.PRE
Inline XBRL Taxonomy Presentation Linkbase Document.**
101.DEF
### Inline XBRL Taxonomy Definition Document.**
Cover PageInteractive Data File.* (formatted as Inline XBRL and contained in Exhibit101).*
__________________________
* Filed herewith.
** Previously filed.<|endoftext|>Incurred by such persons in connection with activities on our behalf.
Prior to the closing of our initial public offering, our sponsor agreed to loan us up to $300,000 to be used for a portion of the expenses of our initial public offering. These loans were non-interestbearing, unsecured and were due at the earlier of March31, 2021 or the closing of our initial public offering.
In addition, in order to finance transaction costs in connection with an intended initial business combination, our sponsor or an affiliate of our sponsor or certain of our officers and directors may, but are not obligated to, loan us funds on a non-interestbearing basis as may be required. Other than as described above, the terms of such loans by our officers and directors, if any, have not been determined and no written agreements exist with respect to such loans.
It is unlikely the amount of such compensation will be known at the time of distribution of such tender offer materials or at the time of a stockholder meeting held to consider our initial business combination, as applicable, as it will be up to the directors of the post-combinationbusiness to determine executive and director compensation.
The holders of the founder shares, placement units, and units that may be issued upon conversion of working capital loans (and in each case holders of their component securities, as applicable) have registration rights to require us to register a sale of any of our securities held by them pursuant to a registration rights agreement. These holders will be entitled to make up to three demands, excluding short form registration demands, that we register such securities for sale under the Securities Act. In addition, these holders will have piggy-back registration rights to include their securities in other registration statements filed by us. Notwithstanding the foregoing, the underwriters may not exercise their demand and piggyback registration rights after five (5) and seven (7) years, respectively, after the effective date of the registration statement for our initial public offering and may not exercise their demand rights on more than one occasion.
### Related Party Policy
We have not yet adopted a formal policy for the review, approval or ratification of related party transactions. Accordingly, the transactions discussed above were not reviewed, approved or ratified in accordance with any such policy.
We have adopted a code of ethics requiring us to avoid, wherever possible, all conflicts of interests, except under guidelines or resolutions approved by our board of directors (or the appropriate committee of our board) or as disclosed in our public filings with the SEC. Under our code of ethics, conflict of interest situations will include any financial transaction, arrangement or relationship (including any indebtedness or guarantee of indebtedness) involving the company.
In addition, our audit committee, pursuant to a written charter, is responsible for reviewing and approving related party transactions to the extent that we enter into such transactions. An affirmative vote of a majority of the members of the audit committee present at a meeting at which a quorum is present will be required in order to approve a related party transaction. A majority of the members of the entire audit committee will constitute a quorum. Without a meeting, the unanimous written consent of all of the members of the audit committee will be required to approve a related party transaction.
To further minimize conflicts of interest, we have agreed not to consummate an initial business combination with an entity that is affiliated with any of our sponsor, officers or directors unless we, or a committee of independent directors, have obtained an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions that our initial business combination is fair to our company from a financial point of view. Furthermore, no finders fees, reimbursements, consulting fee, monies in respect of any payment of a loan or other compensation will be paid by us to our sponsor, officers or directors or any affiliate of our sponsor, officers or directors prior to, for services rendered to us prior to, or in connection with any services rendered in order to effectuate, the consummation of our initial business combination (regardless of the type of transaction that it is). However, the following payments will be made to our sponsor, officers or directors, or our or their affiliates, none of which will be made from the proceeds of our initial public offering held in the trust account prior to the completion of our initial business combination:
Repayment of up to an aggregate of $300,000 in loans made to us by our sponsor to cover offering-relatedand organizational expenses;
Payment to an affiliate of our sponsor of $10,000 per month, for up to 24months, for office space, utilities and secretarial and administrative support;
Reimbursement for any out-of-pocketexpenses related to identifying, investigating and completing an initial business combination; and
Repayment of non-interestbearing loans which may be made by our sponsor or an affiliate of our sponsor or certain of our officers and directors to finance transaction costs in connection with an intended initial business combination, the terms of which (other than as described above) have not been determined nor have any written agreements been executed with respect thereto.
Our audit committee will review on a quarterly basis all payments that were made to our sponsor, officers, directors or our or their affiliates.
### Item 14
The following is a summary of fees paid to Marcum LLP (Marcum), for services rendered
### Audit Fees
The aggregate fees billed by Marcum for professional services rendered for the audit of our annual financial statements and other required filings with the SEC for the year ended December 31, 2020 and for the period from July 1, 2020 (date of inception) to December 31, 2020, including services in connection with our initial public offering, totaled $31,930 and $40,170 respectively. The above amounts include interim review procedures and audit fees, as well as attendance at audit committee meetings.
Audit-Related Fees
For the year ended December 31, 2020 and for the period from July 1, 2020 (date of inception) to December 31, 2020, we did not pay Marcum for consultations concerning financial accounting and reporting standards.
### Tax Fees
We did not pay Marcum for tax planning and tax advice for the year ended December 31, 2020 and for the period from July 1, 2020 (date of inception) to December 31, 2020.
All Other Fees
We did not pay Marcum for other services for the year ended December 31, 2020 and for the period from July 1, 2020 (date of inception) to December 31, 2020.
### Pre-Approval Policy
Since the formation of our audit committee, and on a going-forward basis, the audit committee has and will pre-approve all auditing services and permitted non-audit services to be performed for us by our independent registered public accounting firm, including the fees and terms thereof (subject to the de minimis exceptions for non-audit services described in the Exchange Act which are approved by the audit committee prior to the completion of the audit).
PART IV
Item 15
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Issued and outstanding. On November9, 2020, our Sponsor transferred 25,000 founder shares to each of the independent directors. The initial stockholders agreed to forfeit up to 562,500 founder shares to the extent that the over-allotment option was not exercised in full by the underwriters, so that the founder shares would represent 20.0% of our issued and outstanding shares after the IPO. The underwriter exercised its over-allotment option in full on December15, 2020; thus, these562,500 founder shares were no longer subject to forfeiture.
The initial stockholders agreed, subject to limited exceptions, not to transfer, assign or sell any of the founder shares until the earlier to occur of: (A)one year after the completion of the initial business combination or (B)subsequent to the initial business combination, (x)if the last reported sale price of the shares of ClassA common stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any30-tradingday period commencing at least 150days after the initial business combination, or (y)the date on which we complete a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of the stockholders having the right to exchange their shares of ClassA common stock for cash, securities or other property.
Private Placement Shares
Simultaneously with the closing of the IPO, we issued 7,175,000 private placement warrants at a price of $1.00 per private placement warrant to our sponsor, generating proceeds of $7.2million.
If we do not complete our initial business combination prior to 18 months from our IPO, the private placement warrants will expire worthless. The private placement warrants are non-redeemable for cash and exercisable on a cashless basis so long as they are held by the initial purchasers or their permitted transferees.
The purchasers of the private placement warrants agreed, subject to limited exceptions, not to transfer, assign or sell any of their private placement warrants (except to permitted transferees) until 30days after the completion of our initial business combination.
### Related Party Loans
On August11, 2020, our sponsor agreed to loan us up to $400,000 to cover expenses related to the IPO pursuant to a promissory note. This loan was non-interest bearing and payable on the earlier of the completion of the initial public offering or the date we determine not to conduct an initial public offering. We borrowed $400,000 under the promissory note, and on December15, 2020, we repaid the promissory note in full.
In order to finance transaction costs in connection with a business combination, our sponsor or an affiliate of our sponsor, or certain of our officers and directors may, but are not obligated to, loan us funds as may be required, or the working capital loans. Otherwise, the working capital loanswill be repaid only out of funds held outside the trust account. In the event that a business combination does not close, we may use a portion of the proceeds held outside the trust account to repay the working capital loansbut no proceeds held in the trust account would be used to repay the working capital loans.
Commencing on the date of the IPO and continuing until the earlier of our consummation of a business combination and our liquidation, we will pay our sponsor $20,000 per month for office space and administrative and support services. No charges were incurred as of December31, 2020.
Our sponsor, executive officers and directors, or their respective affiliates will be reimbursed for any out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential target businesses and performing due diligence on suitable business combinations targets. Our audit committee will review, on a quarterly basis, all payments that are made to our sponsor, executive officers or directors, or their affiliates.
Three qualified institutional buyers not affiliated with our sponsor or any member of our management team purchased 4,497,000 units in our IPO, which comprised 26.1% of the units sold in the IPO. In consideration of providing these significant indications of interest, our anchor investors purchased a membership interest in our sponsor, for nominal consideration, entitling them to an aggregate interest in up to 13.6% of our sponsor, subject to adjustment if our anchor investors do not hold a minimum number of shares of ClassA common stock at the time of our initial business combination.
Pursuant to each anchor investors subscription agreement with our sponsor, the anchor investors have not been granted any material additional stockholder or other rights and were issued a membership interest in our sponsor with no right to control our sponsor or vote or dispose of the anchor founder shares held by our sponsor. Further, the anchor investors are not required to: (i)hold any units, ClassA common stock or warrants they purchased in our initial public offering or thereafter for any amount of time, (ii)vote any ClassA common stock they may own at the applicable time in favor of our initial business combination or (iii)refrain from exercising their right to redeem their ClassA common stock at the time of our initial business combination.
In the event that the anchor investors vote in favor of our initial business combination, a smaller portion of affirmative votes from other public stockholders would be required to approve our initial business combination.
### Sponsor Loans
Up to $1.5million of such loans may be convertible into warrants at a price of $1.00 per warrant at the option of the lender.
Please see Item 7. for a description of this agreement.
### Director Independence
Please see Item10. Director Independence and for information regarding the independence of the board of directors and the committees of the board of directors.
Item14.
The following table represents aggregate fees billed to us for the period from July31, 2020 (inception) to December31, 2020, by WithumSmith+Brown, PC, our independent registered public accounting firm.
### Audit Fees
Audit fees consist of fees billed for professional services rendered for the audit of our financial statements for the period from July31, 2020 (inception) through December31, 2020, reviews of our quarterly financial statements and services that are normally provided by our independent registered public accounting firm in connection with statutory and regulatory filings. The aggregate fees billed by WithumSmith+Brown, PC for audit fees, inclusive of required filings with the SEC for the period from July31, 2020 (inception) through December31, 2020, and of services rendered in connection with our initial public offering.
### Audit-Related Fees
We did not pay WithumSmith+Brown, PC any audit-related fees during the period from July31, 2020 (inception) through December31, 2020.
### Tax Fees
We did not pay WithumSmith+Brown, PC any tax fees during the period from July31, 2020 (inception) through December31, 2020.
### All Other Fees
We did not pay WithumSmith+Brown, PC any other fees during the period from July31, 2020 (inception) through December31,2020.
Pre-Approval
### Policy
Our audit committee was formed upon the closing of our IPO.
### PART IV
Item15.<|endoftext|>UNITED STATES
Washington, D.C. 20549
FORM
10-K/A
(Amendment No. 1)
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF1934
For the Fiscal Year Ended December31, 2020
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF1934
### For the transition period from to
Commission File Number:
001-38990
### Advantage Solutions Inc.
Delaware
83-4629508
(I.R.S. Employer
### Identification Number)
18100 Von Karman Avenue, Suite 1000
Irvine, CA 92612
(949)
797-2900
### Title of each class
Trading Symbol(s)
Name of each exchange on which registered
ClassA common stock, $0.0001 par value per share
ADV
Warrants exercisable for one share of ClassA common stock at an exercise price of $11.50
ADVWW
Securities registered pursuant to Section
12(g) of the Act: None
NO
Indicate by check mark if the Registrant is not required to file reports pursuant to Section13 or 15(d) of the Act.YES
NO
Indicate by check mark whether the Registrant: (1)has filed all reports required to be filed by Section13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.YES
NO
S-T
(232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit suchfiles).YES
NO
12b-2 of the Exchange Act.
### Largeacceleratedfiler
Acceleratedfiler
Non-accelerated filer
### Smallerreportingcompany
Emerginggrowthcompany
12b-2 of the Exchange Act).YES
NO
As of June30, 2020, the last business day of the registrants most recently completed second fiscal quarter, the aggregate market value of the voting and non-voting common stock held by non-affiliates, computed by reference to the closing sales price of $12.00 reported on the Nasdaq Global Select Market, was approximately $520.9million.
As of March15, 2021, there were 318,449,966 shares of the registrants common stock, $0.0001 par value per share, issued and outstanding.
### Explanatory Note
Advantage Solutions Inc. (the Company) is filing this amended Form 10-K/A (Form 10-K/A) to amend our Annual Report on Form 10-K for the year ended December 31, 2020, originally filed with the Securities and Exchange Commission (the SEC) on March 16, 2021 (Original Report), to revise our consolidated financial statements and related footnote disclosures and financial statement schedule as of December 31, 2020 and for the year ended December 31, 2020. This Form 10-K/A also amends certain other Items in the Original Report, as listed in Items Amended in this
Form10-K/A below.
### Revision Background
On April 12, 2021, the staff of the SEC issued a Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies (SPACs) (the SEC Staff Statement). The SEC Staff Statement addresses certain accounting and reporting considerations related to warrants of a kind similar to those issued by Conyers Park II Acquisition Corp. (Conyers Park) at the time of its initial public offering in July 2019. The SEC Staff Statement discussed certain features of warrants issued in SPAC transactions that may be common across many entities and indicated that when one or more such features is included in a warrant, the warrant should be classified as a liability measured at fair value, with changes in fair value each period reported in earnings.
Prior to the issuance of the SEC Statement, the Company classified the 7,333,333 private placement warrants originally issued by Conyers Park to Conyers Park II Sponsor LLC in a private placement in connection with its initial public offering and assumed by the Company in connection with the consummation of the Transactions (as defined at Part II, Item 7.
### Managements
### Discussion and Analysis of
Financial
### Condition and
Results of Operations
### Recent
Development s
) as equity.
In light of the SEC Staff Statement, on May 6, 2021, the Audit Committee of our Board of Directors (the Audit Committee), after discussion with management determined that the private placement warrants should be classified as liabilities and subsequently measured at fair value through earnings pursuant to Accounting Standards Codification 815-40,
### Contracts in Entitys
Own
### Equity
As discussed in further detail below and in Part II, Item 8
### Note 1,
Organization and
### Significant
### Acc o unting
Policies
### Revision of Prior
Period
Financial Statements to the accompanying consolidated financial statements, the revision is the result of the incorrect accounting for certain of our issued warrants. We evaluated the impact of this error on the previously issued financial statements included in the Original Report and concluded that the impact of this error was not material to those financial statements after considering both quantitative and qualitative factors, however, we have revised the consolidated financial statements as of December 31, 2020 and for the year ended December 31, 2020 in this Form 10-K/A. All amounts in this Form 10-K/A affected by the error have been revised.
As a result of the revision, the Company recorded $7.9million as a warrant liability with a reduction to additional paid-in-capital on October28, 2020 and a subsequent $13.4million change in the estimated fair value recorded for the year ended December31, 2020 recognized as a Change in fair value of the warrant liability on the Consolidated Statements of Operations and Comprehensive Loss. This revision did not have an impact on the Companys revenues, cash position, operating expenses or total operating, investing or financing cash flows as previously presented. Additionally, the revision had no impact on our non-GAAP operating metrics, including Adjusted EBITDA, Adjusted Net Income and Net Debt.
In connection with the revision management has re-evaluated the effectiveness of the Companys disclosure controls and procedures as of December 31, 2020. Management has concluded that the Companys disclosure controls and procedures were not effective as of December 31, 2020, due to existing material weaknesses in our internal control over financial reporting previously disclosed by the Company, and a material weakness in our internal control over financial reporting related to the evaluation of settlement features used to determine the classification of certain warrant instruments. For a discussion of managements consideration of our disclosure controls and procedures, our internal control over financial reporting, and the material weaknesses identified, see Part II, Item 9A, Controls and Procedures of this Form 10-K/A.
Items Amended in this Form
10-K/A
This Form
10-K/A presents the Original Report, amended and revised with modifications as necessary to reflect the revision and certain related changes. Where appropriate we have changed references from this Annual Report on Form
10-K to this Annual Report on Form
10-K/A.
### The following items have been amended:
Part I, Item1A. Risk Factors
Part II, Item7.
Part II, Item7A.
### Part II, Item8. Financial Statements
Part II, Item9A. Controls and Procedures
Part III, Item10.
### Part III, Item11. Executive Compensation
Part III, Item13.
Part IV, Item15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Servotronics, Inc. 1 to Form 10-K for the year ended December 31, 2020, as filed with the Securities and Exchange Commission on April 6, 2021 (Original Filing) to amend and restate in its entirety Item 9A, Controls and Procedures.
The Company determined that managements evaluation of the effectiveness of internal control over financial reporting was not based on a suitable, recognized control framework in accordance with Exchange Act Rule 13a-15(c). While the Company has designed such internal control over financial reporting to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with , the Company has determined that it did not use a recognized control framework to conduct managements evaluation since at least December 31, 2017. Subsequent to the filing date of the Original Filing, an evaluation of the Companys internal control over financial reporting was conducted based on the framework in Internal Control Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013. This Amendment No. 1 includes managements assessment on the effectiveness of the Companys internal control over financial reporting as of December 30, 2020.
Notwithstanding the existence of the material weakness described in Part II. Item 9A Controls and Procedures, the Company believes that the consolidated financial statements in the Original Filing fairly present, in all material respects, the Companys financial position, results of operations and cash flows as of the dates, and for the periods, presented, in conformity with U.S.
This Amendment No. 1 also amends Item 15 of Part IV of the Original Filing solely to include as exhibits the certifications required by Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended. 1, paragraph 3 of the certifications has been omitted. The Company is not including the certifications under Section 906 of the Sarbanes-Oxley Act of 2002 as no financial statements are being filed with this Amendment No. 1.
1 does not reflect events occurring after the filing of the Original Filing or modify or update in any way any of the other items or disclosures contained in the Original Filing, including, without limitation, the consolidated financial statements and the related footnotes. 1 should be read in conjunction with the Original Filing and the Companys other filings with the SEC subsequent to the filing of the Original Filing.
(i)Disclosure Controls and Procedures
Based on the evaluation of the Companys disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) required by Exchange Act Rule 13a-15(e), the Companys principal executive officer and principal financial officer have concluded that as of December 31, 2020 the Companys disclosure controls and procedures were not effective as a result of the inaccurate disclosure in the Original Filing with respect to the Companys evaluation of internal control over financial reporting.
(ii)Managements Report on Internal Control over Financial Reporting
The Companys management is responsible for establishing and maintaining adequate internal controls over financial reporting (as defined in Exchange Act Rule 13a-15(f)). The Company determined that its previous disclosure regarding managements evaluation of the effectiveness of internal control over financial reporting was inaccurate as such evaluation was not based on a suitable, recognized control framework in accordance with Exchange Act Rule 13a-15(c). Subsequent to the filing date of the Original Filing, under the supervision and with the participation of management, including the principal executive officer and principal financial officer, conducted an evaluation of the effectiveness of internal control over financial reporting based on the framework in Internal Control Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013 (COSO). For effective internal control, each of the five COSO components and the underlying 17 principles must be present and functioning and operate together in an integrated manner. The COSO components are (1) control environment, (2) risk assessment, (3) control activities, (4) information and communication and (5) monitoring activities. Managements initial evaluation of the Companys internal control over financial reporting, which included transactional testing performed by a third-party as well as ongoing observation and evaluation of controls by management in connection with the audit of the Companys financial statements, identified significant deficiencies relating to inventory and the accounting for post retirement benefit obligations, however such significant deficiencies were not considered to be material weaknesses. The subsequent evaluation using the COSO framework indicated that the Company did not fully consider and document the COSO components and principles on a timely basis. Management has concluded that the combination of the failure to monitor whether the components of internal control were present and functioning at December 31, 2020 and the previously identified significant deficiencies, in aggregate, constitute a major deficiency and a material weakness. Under the COSO framework, when a major deficiency exists a company cannot conclude that it has met the requirement for an effective system of internal control. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of the financial statements will not be prevented or detected in a timely basis by the Companys internal controls. As a result, management has concluded that the Companys internal control over financial reporting was not effective at December 31, 2020.
Management has begun implementing a remediation plan which includes the development of enhanced internal control review procedures and documentation standards aligned with the COSO components and principles. The Company anticipates having those procedures and standards in place in the third and fourth quarters of 2021 to allow management to fully evaluate the Companys internal control over financial reporting at December 31, 2021.
Notwithstanding the existence of the above-mentioned material weakness, the Company believes that the consolidated financial statements in the Original Filing fairly present, in all material respects, the Companys financial position, results of operations and cash flows as of the dates, and for the periods, presented, in conformity with U.S.
(iii) Changes in Internal Control Over Financial Reporting
There were no changes in the Companys internal controls over financial reporting during the fourth quarter of 2020 that have materially affected, or are reasonably likely to affect, the Companys internal controls over financial reporting.
Item 15.
31.1
Certification of Principal Executive Officer pursuant to Rule 13a-14 or 15d-14 of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Filed herewith)
31.2
Certification of Principal Financial Officer pursuant to Rule 13a-14 or 15d-14 of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Filed herewith)<|endoftext|>Executive compensation includes base salary, annual discretionary bonuses awarded by the Board of Directors in conjunction with named executives annual performance evaluations and other annual compensation granted under the noncontributory defined benefit retirement plan. Collectively, the Boards objective is to ensure a total pay package that is appropriate given the performance of both the Company and the individual named executive.
Governance practices concerning compensation
The Board of Directors has implemented a number of procedures that the Board follows to ensure good governance concerning compensation. These include setting CEO and CFO salaries, authorizing the CEO or the CFO to determine the salaries of presidents and vice presidents, including Mrs. Huang, President of Shanghai operations, establishing annual goals for the Company, reviewing proposals for stock incentive plans, exercising fiduciary responsibilities over retirement plans, overseeing management development and succession planning, and keeping adequate records of its activities.
### Base Salary
Each executives base salary is initially determined with reference to competitive pay practices of peer companies (where such information is publicly available) and is dependent upon the executives level of responsibility and experience. The Board uses its discretion, rather than a formal weighting system, to evaluate these factors and to determine individual base salary levels. Thereafter, base salaries are reviewed periodically, and increases are made based on the Board of Directors subjective assessment of individual performance, as well as the factors discussed above.
### Annual Discretionary Bonuses
In future years we shall pay variable incentive compensation to our executives, however, due to our overall performance in 2019 and 2018, our executive officers were not awarded bonuses.
Summary Compensation Table
The following table sets forth information about the compensation paid or accrued by our chief executive officer, chief financial officer, and one other most highly compensated executive officer (our named officers) for the last three completed fiscal years
Notes:
(a)
(b)
(c)
(d)
Mr. Igwealor was awarded 10 million shares as hire-on bonus for accepting the CEO position
(e)
(f)
Stock Option Grants in the Last Fiscal Year; Exercises of Stock Options
There were no grants of stock options during the fiscal year ended December 31, 2020. The Company has never granted any stock options.
As of December 31, 2020, there were no equity awards outstanding to any of our current or previous executive officers.
Director Compensation
Our directors do not currently receive any compensation for serving on our board of directors.
ITEM 12.
The following table sets forth certain information regarding the number of shares of our common stock beneficially owned on December 31, 2020, by (i) each person known to us who owns beneficially more than 5% of the outstanding shares of Common Stock (based upon reports which have been filed and other information known to us), (ii) each of our Directors, (iii) each of our Executive Officers and (iv) all of our Executive Officers and Directors as a group. Unless otherwise indicated, each stockholder has voting and investment power with respect to the shares shown. As of December 31, 2020, we had 42,724,684shares of Common Stock issued and outstanding.
Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities.Shares of our common stock which may be acquired upon exercise of stock options or warrants which are currently exercisable or which become exercisable within 60 days after the date indicated in the table are deemed beneficially owned by the optionees.Subject to any applicable community property laws, the persons or entities named in the table above have sole voting and investment power with respect to all shares indicated as beneficially owned by them.
Unless otherwise indicated, the address of each of the executive officers and directors and 5% or more stockholders named below is c/o GiveMePower Corporation, Inc., 370 Amapola Ave., Suite 200A, Torrance, CA 90501.There are not any pending or anticipated arrangements that may cause a change in control.
1)
Officer or/and Director
2)
Frank Igwealor is the natural personwith voting and dispositive power over the shares held by
### Goldstein Franklin, Inc.
Frank Igwealor, our President and CEO, will continue to be the largest single shareholder of our common stock. When combined with his controlling ownership of Goldstein Franklin, Inc.
We do not have a compensation plan under which equity securities are authorized for issuance.
ITEM 13.
Our officers and directors are Mr. Igwealor, our chief executive officer and secretary, and Ms patience C Ogbozor, a Director.
Our office and mailing address is located at 370 Amapola Ave., Suite 200A, Torrance, CA 90501. We do not have a written lease with the landlord and rent space on a month-to-month basis. We share this office on a 20% basis with two other organizations controlled by our President and CEO. We believe that our facilities are adequate for our needs and that additional suitable space will be available on acceptable terms as required.
During the year ended December 31, 2020, the Company did not make any share award to the entities and persons in transactions that would be classified as related parties transactions.
There have been no other related party transactions, or any other transactions or relationships required to be disclosed pursuant to Item 404 of Regulation S-K.
With regard to any future related party transaction, we plan to fully disclose any and all related party transactions, including, but not limited to, the following: disclose such transactions in prospectuses where required; disclose in any and all filings with the Securities and Exchange Commission, where required; obtain disinterested directors consent; and obtain shareholder consent where required.
Igwealor, Chief
The Company intends to start recording rent expense of $7,800 for the year that would end December 31, 2020.
### LINE OF CREDIT RELATED PARTY
Goldstein Franklin, Inc. - $190,000 line of credit
### Director Independence
Our board of directors has determined that two members of our board of directors qualify as an independent director under Nasdaqs definition of independence. Bishop Milton and Dr. Mbagwu are independent directors who also serve on our audit committee.
ITEM 14.
Audit Fees
For fiscal year end December 31, 2020:$9,000
### For fiscal year end December 31, 2019: $10,000
We did not pay any other fees as specified in Item 9(e) of Schedule 14A.
We do not have audit committee pre-approval policies and procedures.
PART IV
ITEM 15.
The following exhibits are filed as part of this Form 10-K and this list includes the Exhibit Index.
EXHIBIT NO
### DESCRIPTION
Power of Attorney is included on the signature pagein this Annual Report on this Form10-K.
31.1
Rule13a-14(a)/15d - 14(a) Certification of Frank I Igwealor, Chief Executive Officer of GiveMePower Corporation, filed herewith.
32.1
Certificate pursuant to 18 U.S.C. Section1350, as adopted pursuant to Section906 of the Sarbanes-Oxley Act of 2002, filed herewith.
101.INS*
XBRL Instance Document
101.SCH*
101.CAL*
101.DEF*
101.LAB*
101.PRE*
(b)
None
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
### EXPLANATORY NOTE
This amended report on Form 10-K/A (the Amendment Filing) amends the Annual Report on Form 10-K of Americold Realty Trust (the Registrant) for the year ended December 31, 2020 initially filed with the Securities and Exchange Commission (the SEC) on March 1, 2021 (the Original Filing) for the purpose of updating the disclosure in Item 9A., Controls and Procedures. Managements Annual Report on disclosure controls and procedures contained in Item 9A. of the Original Filing, which inadvertently omitted a statement disclosing the conclusions of the Registrants principal executive and principal financial officers regarding the effectiveness of the Registrants disclosure controls and procedures as of December 31, 2020. This Amendment Filing corrects such omission.
This Amendment Filing also amends Item 15 of Part IV of the Original Filing solely to include as exhibits (i) a new Exhibit 22, List of Guarantors and Subsidiary Issuers of Guaranteed Securities and (ii) the certifications required by Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended. Because no financial statements have been included in this Amendment Filing, paragraph 3 of the certifications has been omitted. The Registrant is not including the certifications under Section 906 of the Sarbanes-Oxley Act of 2002 as no financial statements are being filed with this Amendment Filing.
Except as expressly stated, this Amendment does not reflect events occurring after the filing of the Original Filing or modify or update in any way any of the other items or disclosures contained in the Original Filing, including, without limitation, the consolidated financial statements and the related footnotes. Accordingly, this Amendment Filing should be read in conjunction with the Original Filing and the Registrants other filings with the SEC subsequent to the filing of the Original Filing.
The term disclosure controls and procedures is defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act. These rules refer to the controls and other procedures of a company that are designed to ensure that information is recorded, processed, accumulated, summarized, communicated and reported to management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding what is required to be disclosed by a company in the reports that it files under the Exchange Act. As of December 31, 2020 (the Evaluation Date), we carried out an evaluation, under the supervision and with the participation of our management, including our chief executive officer and chief financial officer, of the effectiveness of our disclosure controls and procedures. Based upon that evaluation, our chief executive officer and chief financial officer concluded that, as of the Evaluation Date, our disclosure controls and procedures are effective.
Management is responsible for the preparation and fair presentation of the consolidated financial statements included in this annual report. The consolidated financial statements have been prepared in conformity with U.S. generally accepted accounting principles and reflect managements judgments and estimates concerning events and transactions that are accounted for or disclosed.
Management is also responsible for establishing and maintaining effective internal control over financial reporting, as such term is defined in Exchange Act Rule 13a-15(f). Management recognizes that there are inherent limitations in the effectiveness of any internal control and effective internal control over financial reporting can provide only reasonable assurance with respect to financial statement preparation. Additionally, because of changes in conditions, the effectiveness of internal control over financial reporting may vary over time.
Management assessed the effectiveness of our internal control over financial reporting as of December31, 2020.
### Internal Control-Integrated Framework
(2013 framework). The scope of our efforts to comply with Section404 of the Sarbanes-Oxley Act with respect to 2020 included all of our operations other than those we acquired in 2020 as described in Note 1 to the consolidated financial statements. In accordance with the SECs published guidance, because we acquired these operations during the year, we excluded these operations from our efforts to comply with Section 404 with respect to 2020. These acquired businesses constituted 40% of total assets as of December31, 2020 and 3% of revenue for the year then ended. Of these acquisitions, the acquisition of Agro Merchants represented 28% of total assets and less than 1% of revenue for the year ended December 31, 2020. The SECs published guidance specifies that the period in which management may omit an assessment of an acquired businesss internal control over financial reporting from its assessment of the Companys internal control may not extend beyond one year from the date of acquisition. Based on our assessment, which as discussed herein excluded the operations of the businesses acquired, management believes that the Company maintained effective internal control over financial reporting as of December31, 2020.
The effectiveness of our internal control over financial reporting has been audited by Ernst & Young LLP, an independent registered public accounting firm, as stated in their report which was included in the Original Filing.
Changes inInternal Controlover Financial Reporting
There were no changes in our internal control over financial reporting (as defined in Rule 13a - 15(f) of the Exchange Act) identified in connection with the evaluation required by Rule 13a-15(d) under the Exchange Act during the year ended December 31, 2020 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
### PARTIV
ITEM15.Exhibits, Financial Statements and Schedules
Americold Realty Trust and Subsidiaries
The following documents are filed as a part of this Form 10-K/A or incorporated by reference: a.
The response to this portion of Item 15 is incorporated by reference from the Original Filing, into this Amendment.
b.
### Exhibits
The exhibits listed on the accompanying Exhibit Index are filed as part of, or are incorporated by reference into this Amendment.
EXHIBIT INDEX
# This document has been identified as a management contract or compensatory plan or arrangement.
* Filed herewith
Certain agreements and other documents filed as exhibits to this Form 10-K/A, or incorporated by reference, contain representations and warranties that the parties thereto made to each other. These representations and warranties have been made solely for the benefit of the other parties to such agreements and may have been qualified by certain information that has been disclosed to the other parties to such agreements and other documents and that may not be reflected in such agreements and other documents. In addition, these representations and warranties may be intended as a way of allocating risks among parties if the statements contained therein prove to be incorrect, rather than as actual statements of fact. Accordingly, there can be no reliance on any such representations and warranties as characterizations of the actual state of facts. Moreover, information concerning the subject matter of any such representations and warranties may have changed since the date of such agreements and other documents.<|endoftext|>[
Xpel Inc
]
### EXPLANATORY NOTE
This Amendment No. 1) to the XPEL, Inc. (XPEL or the Company) Annual Report (Annual Report) on Form 10-K for the fiscal year ended December 31, 2020 (the Original Filing), is being filed solely for the purposes of amending (i) Part II, Item 9A to include Managements Report on Internal Control over Financial Reporting; and (ii) Part IV, Item 15 to add the references in subsection (a) to documents included in the Original Filing and to include as exhibits the new certifications required by Rule 13a-14(a) under the Exchange Act.
As disclosed in provided in this Amendment No. 1, management performed and completed its assessment of XPELs internal controls over financial reporting as of December 31, 2020 prior to the Original Filing. The section was inadvertently omitted from the Original Filing due to administrative error.
In accordance with Rule 12b-15 under the U.S. Securities Exchange Act of 1934 (the Exchange Act), Part II, Item 9A and Part IV, Item 15 of the Original Filing have been amended and restated in their entirety. This Amendment No.
### Part II
Item 9A. Controls and Procedures
We have established and maintain a system of disclosure controls and procedures that are designed to provide reasonable assurance that information required to be disclosed in our reports filed with the SEC pursuant to the Securities Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC and that such information is accumulated and communicated to our management, including our Chief Executive Officer (CEO) and Chief Financial Officer (CFO), as appropriate, to allow timely decisions regarding required disclosures.
Management, with the participation of our CEO and CFO, has evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act) as of the end of the period covered by this report.Based on such evaluation, our CEO and CFO have each concluded that as of the end of the period covered by this report, our disclosure controls and procedures were effective to provide reasonable assurance that information required to be disclosed by us in reports that we file or submit under the Securities Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SECs rules and forms and that such information is accumulated and communicated to our management, including the CEO and CFO, as appropriate, to allow timely decisions regarding required disclosures.
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) under the Securities Exchange Act of 1934, as amended). In making this assessment, our management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control - Integrated Framework (2013 Framework). Our management has concluded that we maintained effective internal control over financial reporting as of December 31, 2020.
Our management, including our Chief Executive and Chief Financial Officer, does not expect that our disclosure controls and procedures or our internal control over financial reporting will prevent all errors and all fraud. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all controls issues and instances of fraud, if any, within the Company have been detected.
As an Emerging Growth Company, managements report was not subject to audit by our independent registered public accounting firm pursuant to the Jumpstart Our Business Startups Act, that permits us to provide only managements reporting in this annual report.
There were no changes in our internal control over financial reporting that occurred during the last fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
### Part IV
Item 15.
1.
### Financial Statements
See Index to Financial Statements at Item 8 herein.
2.
Schedules not listed above have been omitted because they are not required, not applicable, or the required information is otherwise included.
3.
### Exhibits
The exhibits listed below are filed or furnished as part of this Annual Report or are incorporated herein by reference, in each case as indicated below.
Incorporated by Reference
### Exhibit Number
Description
Form
### Exhibit/Appendix
Filing Date
3.1
Articles of Incorporation of the Company, filed with the Nevada Secretary of State on October 14, 2003.
10-12B
3.1
04/03/2019
3.2
Certificate of Amendment to the Articles of Incorporation of the Company, filed with the Nevada Secretary of State on December 29, 2003.
10-12B
3.2
04/03/2019
3.3
Certificate of Amendment to the Articles of Incorporation of the Company, filed with the Nevada Secretary of State on June 3, 2018.
10-12B
3.3
04/03/2019
3.4
Amended and Restated Bylaws of the Company, effective as of November 18, 2019.
8-K
3.1
11/18/2019
4.1
10-K
4.1
3/16/2020
10.1
Business Loan Agreement, dated as of August 5, 2017, between XPEL Technologies Corp., as borrower, and The Bank of San Antonio, as lender.
10-12B/A
10.1
05/30/2019
10.2
Change in Terms Agreement, dated as of May 5, 2018, modifying that certain Business Loan Agreement dated as of August 5, 2017, between XPEL Technologies, Corp., as borrower, and The Bank of San Antonio, as lender.
10-12B/A
10.2
05/30/2019
10.3
Change in Terms Agreement, dated as of May 11, 2020, between the Company, as borrower, and The Bank of San Antonio, as lender.
10-Q
10.1
05/14/2020
10.4
Modification to Loan Agreement dated as of May 11, 2020 between the Company, as borrower, and The Bank of San Antonio, as lender.
10-Q
10.2
05/14/2020
10.5
Promissory Note, dated as of May 11, 2020, between the Company, as borrower, and The Bank of San Antonio, as Lender.
10-Q
10.3
05/14/2020
10.6
Credit Facility Letter, dated September 11, 2018, by and among XPEL Canada Corp., as borrower, XPEL, Inc., as guarantor, and HSBC Bank Canada, as lender.
10-12B/A
10.3
05/30/2019
10.7
Amended and Restated Supply Agreement by and between XPEL Technologies Corp., and entrotech, inc.
10-12B/A
10.4
04/24/2019
10.8
Distribution Agreement dated May 31, 2018 by and between the Company and Shanghai Xing Ting Trading Co., Ltd.
10-12B/A
10.5
05/30/2019
10.9+
### XPEL, Inc. 2020 Equity Incentive Plan
Schedule 14A
A
04/17/2020
14.1
10-12B/A
14.1
04/24/2019
21.1*
Subsidiaries of the Company.
X
31.1*
Rule 13a-14(a) / 15d-14(a) Certification of Chief Executive Officer.
31.2*
Rule 13a-14(a) / 15d-14(a) Certification of Chief Financial Officer.
32.1**
Section 1350 Certifications of Chief Executive Officer.
32.2**
Section 1350 Certifications of Chief Financial Officer.
101*
Inline XBRL Document Set for the consolidated financial statements and accompanying notes in Part II, Item 8, Financial Statements and Supplementary Data of this Annual Report on Form 10-K.
104*
Inline XBRL for the cover page of this Annual Report on Form 10-K, included in the Exhibit 101 Inline XBRL Document Set.
* Filed herewith
** Furnished herewith
+Management Compensatory Plan or Agreement
X Previously filed as like-numbered exhibit to Original Filing and incorporated by reference herein
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
With respect to shares of common stock that may be issued under our 2015 Omnibus Incentive Plan, as of December 31, 2020:
### Principal Shareholders
The following table sets forth information regarding the beneficial ownership of our common stock as of April 26, 2021 by: each person who is known by us to beneficially own more than 5% of our outstanding common stock, each of our directors and named executive officers, and all directors and executive officers as a group.
The number and percentage of shares beneficially owned are based on 27,071,480 common shares outstanding as of April 26, 2021. Information with respect to beneficial ownership has been furnished by each director, officer or beneficial owner of more than 5% of our common stock. Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission, which generally require that the individual have voting or investment power with respect to the shares. In computing the number of shares beneficially owned by an individual listed below and the percentage ownership of that individual, shares underlying options, warrants and convertible securities held by each individual that are exercisable or convertible within 60 days of April 26, 2021, are deemed owned and outstanding, but are not deemed outstanding for computing the percentage ownership of any other individual. Except as otherwise indicated in the footnotes to this table, or as required by applicable community property laws, all individuals listed have sole voting and investment power for all shares shown as beneficially owned by them. Unless otherwise indicated in the footnotes, the address for each principal shareholder is LM Funding America, Inc., 1200 West Platt Street, Suite 100, Tampa, Florida 33606
*
Represents less than 1% of beneficial ownership
(1)
Includes 232,366 shares beneficially owned by Bruce M. Rodgers Revocable Trust and Carol Linn Gould Revocable Trust, 4,417 shares beneficially owned by BRR Holding, LLC, 1,550 shares beneficially owned by Bruce M. Rodgers IRA, and 100 shares beneficially owned by Carollinn Gould IRA, of which 13,242 shares in the case of Bruce M. Rodgers Revocable Trust and Carol Linn Gould Revocable Trust, 150 shares in the case of BRR Holding, LLC and 390 shares in the case of Bruce M. Rodgers IRA are issuable upon the exercise of warrants to purchase shares of common stock. Bruce M. Rodgers is the sole Trustee of the Bruce M. Rodgers Revocable Trust and Carollinn Gould is the sole Trustee of the Carol Linn Gould Revocable Trust.Bruce M. Rodgers and Ms. Gould owns 100% of the outstanding membership interests of BRR Holding, LLC, and therefore Mr. Rodgers and Ms. Gould may be deemed to have shared voting and investment power for all 236,784 shares owned by both Trusts and BRR Holding, LLC. Rodgers may be entitled under his amended and restated employment agreement (as described above) but has not received because of the unavailability of shares under the 2015 Plan.
(2)
Includes 219,124 shares of common stock and 13,242 shares of common stock issuable upon the exercise of warrants held by the two revocable trusts.Bruce M. Rodgers and Ms. Gould, own 100% of the outstanding membership interests of each trust.
(3)
Includes 2,050 shares of common stock, 500 shares of common stock issuable upon the exercise of warrants at an exercise price of $125.00 and 500 shares of common stock issuable upon the exercise of options at an exercise price of $100.00 that are currently exercisable.
(4)
Includes 100 shares of common stock, 100 shares of common stock issuable upon the exercise of warrants at an exercise price of $125.00, and 500 shares of common stock issuable upon the exercise of options at an exercise price of $100.00 that are currently exercisable.
(5)
Includes 2,600 shares of common stock.
(6)
Includes 180 shares of common stock, 600 shares of common stock issuable upon the exercise of warrants at an exercise price of $125.00, and 500 shares of common stock issuable upon the exercise of options at an exercise price of $100.00 that are currently exercisable.
(7)
Includes 2,500 shares of common stock issuable upon the exercise of options at an exercise price of $125.00 that are currently exercisable or become exercisable within 60 days after March 29, 2019, includes 5,000 shares of common stock issuable upon the exercise of options at an exercise price of $10.00 that are currently exercisable or become exercisable within 60 days after November 30, 2020.This amount excludes 2,500 options that are not exercisable 60 days after the record date of November 30, 2020. Russell may be entitled under his amended and restated employment agreement (as described above) but has not received because of the unavailability of shares under the 2015 Plan.
(8)
Includes 413 shares of common stock issuable upon the exercise of options at an exercise price of $125.00 that are currently exercisable or become exercisable within 60 days after March 29, 2020. Includes 833 shares of common stock issuable upon the exercise of options at an exercise price of $10.00 that are currently exercisable or become exercisable within 60 days after November 30, 2020.This amount excludes 833 options that are not exercisable 60 days after the record date of November 30, 2020.
Item 13.
Association Collection and Distribution Services
The Company has engaged BLG on behalf of many of its Association clients to service and collect the accounts and to distribute the proceeds as required by Florida law and the provisions of the purchase agreements between the Company and the Associations. In addition, Ms. Gould entered into an employment agreement to work part-time for the Company. Ms. Goulds employment agreement with the Company permitted her to also work as General Manager of Business Law Group, P.A. which pays her additional compensation of $150,000 per year. Ms. Gould terminated her employment with the Company on September 30, 2020.
### Director Independence
Because the Companys common shares are listed on Nasdaq Capital Market, we are governed by its listing standards.
Graham, Mr. McCree, Mr. Mills, and Mr.
The members of the Audit Committee are all independent directors pursuant to the definition contained in Rule 5605(a)(2) of the NASDAQ and the criteria for independence set forth in Rule10A-3(b)(1) of the Securities and Exchange Commission. All of the members of both the Compensation Committee and the Nominating Committee have been determined to be independent within the meaning of the SEC and NASDAQ regulations.
Item 14.
### AUDIT FEES
The following table sets forth the aggregate fees for services related to the years ended December 31, 2020 and 2019 provided by Malone Bailey, LLP, our principal accountants:
(1)
Audit Fees represent fees billed for professional services rendered for the audit of our annual financial statements and review of our quarterly financial statements included in our quarterly reports on Form
10-Q.
(2)
All Other Fees represent fees billed for services provided to us not otherwise included in the category above
### Pre-Approval Policies
The audit committee pre-approved 100% of all auditing services and non-auditing services. The audit committee has delegated this authority to the chairman of the audit committee for situations when pre-approval by the full audit committee is inconvenient. Any decisions by the chairman of the audit committee must be disclosed at the next audit committee meeting.
PART IV
Item 15.<|endoftext|>5100 W. 115th Place, Leawood, KS 66211.
(2)
Such shares will automatically convert into Class A ordinary shares at the time of our initial business combination on a one-for-one basis, subject to adjustment.
(3)
Tortoise Sponsor II LLC is the record holder of the shares reported herein. TortoiseEcofin Borrower LLC is the managing member of Tortoise Sponsor II LLC. TortoiseEcofin Parent Holdco LLC is the sole member of TortoiseEcofin Borrower LLC, and TortoiseEcofin Investments, LLC is the sole member of TortoiseEcofin Parent Holdco LLC. TortoiseEcofin Investments, LLC is controlled by a board of directors, which consists of Jeffrey Lovell, Robert M. Belke, Brad Armstrong, H. Kevin Birzer, Gary P. Henson and Brad Hilsabeck. Accordingly, the members of the board of directors of TortoiseEcofin Investments, LLC may be deemed to have or share beneficial ownership of the ordinary shares held directly by Tortoise Sponsor II LLC. In addition, Vincent T. Cubbage, Stephen Pang, Steven C. Schnitzer, Darrell Brock, Jr. and Evan Zimmer (or their family trusts, as applicable) are members of Tortoise Sponsor II LLC. Mr. Cubbage, Mr. Pang, Mr. Schnitzer, Mr. Brock and Mr. Zimmer have no voting or dispositive power over such securities and hereby disclaim beneficial ownership of such securities.
### Item 13.
Founder Shares
In September 2020, our Sponsor transferred 35,000 Founder Shares to each of our independent directors. In September 2020, the underwriters of our Initial Public Offering exercised their over-allotment option in full.
TortoiseEcofin Borrower purchased an aggregate of 5,933,333 Private Placement Warrants for a purchase price of $1.50 per warrant in a private placement that occurred simultaneously with the closing of our Initial Public Offering. As such, our Sponsors interest in this transaction is valued at approximately $8,900,000.
Conflicts of Interest
On September 10, 2020, we entered into an administrative services agreement with Tortoise Capital Advisors, L.L.C., an affiliate of our Sponsor, pursuant to which we agreed to pay Tortoise Capital Advisors, L.L.C. a total of $10,000 per month for office space, utilities, secretarial support and administrative services.
After our initial business combination, members of our management team who remain with us may be paid consulting, management or other fees from the combined company with any and all amounts being fully disclosed to our shareholders, to the extent then known, in the tender offer or proxy solicitation materials (as applicable) furnished to our shareholders. It is unlikely that the amount of such compensation will be known at the time of distribution of such tender offer materials or at the time of a shareholders meeting held to consider our initial business combination, as applicable, as it will be up to the directors of the post-combination business to determine executive and director compensation.
Until the consummation of our Initial Public Offering, our only source of liquidity was an initial sale of Founder Shares to our Sponsor. Additionally, our Sponsor advanced us funds totaling approximately $181,000 to cover expenses related to our Initial Public Offering and certain operating expenses. On September 21, 2020, we repaid our Sponsor in full.
### Registration Rights
The holders of the Founder Shares, Private Placement Warrants and warrants that may be issued upon conversion of working capital loans (and any Class A ordinary shares issuable upon the exercise of the Private Placement Warrants and warrants that may be issued upon conversion of working capital loans and upon conversion of the Founder Shares) will be entitled to registration rights pursuant to a registration rights agreement, dated September 10, 2020 (the Registration Rights Agreement), requiring us to register such securities for resale (in the case of the Founder Shares, only after conversion to our Class A ordinary shares). The holders of these securities, having a value of at least $25 million in the aggregate, are entitled to make up to three demands, excluding short form demands, that we register such securities. However, the registration rights agreement provides that we will not permit any registration statement filed under the Securities Act to become effective until termination of the applicable lock-up period, which occurs (a) in the case of the Founder Shares, on the earlier of (A) one year after the completion of our initial business combination and (B) subsequent to our business combination, (i) if the last sale price of our Class A common stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after our initial business combination or (ii) the date on which we complete a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of our shareholders having the right to exchange their ordinary shares for cash, securities or other property and (b) in the case of the Private Placement Warrants and the respective Class A ordinary shares underlying such warrants, 30 days after the completion of our initial business combination.
In connection with the BCA Closing, the Registration Rights Agreement will be amended and restated and we will enter into an amended and restated registration rights agreement (the Amended and Restated Registration Rights Agreement) with certain persons and entities holding our securities prior to the BCA Closing (the Initial Holders) and certain persons and entities receiving Class A Common Stock and Class B Common Stock pursuant to the First Merger and the Second Merger (the New Holders and together with the Initial Holders, the Reg Rights Holders). Pursuant to the Amended and Restated Registration Rights Agreement, we will agree that, within 30 calendar days after the consummation of the Proposed Transactions, we will file with the SEC (at our sole cost and expense) a registration statement registering the resale of certain securities held by or issuable to the Reg Rights Holders (the Resale Registration Statement), and we shall use our reasonable best efforts to have the Resale Registration Statement declared effective as soon as reasonably practicable after the filing thereof. In certain circumstances, certain of the Reg Rights Holders can demand up to three underwritten offerings, and all of the Reg Rights Holders will be entitled to piggyback registration rights.
### Director Independence
An independent director is defined generally as a person who has no material relationship with the listed company (either directly or as a partner, shareholders or officer of an organization that has a relationship with the company). Our board of directors has determined that Juan J. Tassin are independent directors as defined in the NYSE listing standards and applicable SEC rules.
Item 14.
(1)
### Audit Fees
Audit fees consist of fees billed for professional services rendered by our independent registered public accounting firm for the audit of our annual financial statements and review of financial statements included in our Quarterly Reports on Form 10-Q or services that are normally provided by our independent registered public accounting firm in connection with statutory and regulatory filings or engagements.
(2)
### Audit-Related Fees
(3)
### Tax Fees
(4)
### All Other Fees
### PART IV
Item 15.
(a)
herein.
(b)
* Filed herewith.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
The
Outstanding Equity Awards at December31, 2020 above for information on stock options held by Mr.Stecker.
ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The following table sets forth certain information regarding the ownership of the Companys common stock as of
### March
, 2021 by:(i)each director and nominee for director; (ii)each executive officer named in the Summary Compensation Table; (iii)all executive officers and directors of the Company as a group; and (iv)all those known by the Company to be beneficial owners of more than five percent (5%) of its common stock.
This table is based upon information supplied by officers, directors and principal stockholders and Schedules
13D and 13G filed with the SEC. Unless otherwise indicated in the footnotes to this table and subject to community property laws where applicable, the Company believes that each of the stockholders named in this table has sole voting and investment power with respect to the shares indicated as beneficially owned. Applicable percentages are based on shares outstanding on
### March
, 2021, adjusted as required by rulespromulgated by the SEC.
Unless otherwise indicated, the address for the following stockholders is: c/o
Evolving Systems,Inc., 9800Pyramid Court, Suite400, Englewood, CO 80112
*
Less than one percent (1.0%).
(1)
Percentage of common stock beneficially owned is based on
12,258,184 shares of common stock outstanding on
### March
,
2021.
(2)
Includes 23,200 shares subject to stock options exercisable within 60days of
March 31
, 2021.
(3)
Includes 16,175 shares subject to stock options exercisable within 60days of
March 31
, 2021.
(
)
Includes 15,000 shares subject to stock options exercisable within 60days of
March 31
, 2021.
(5)
### Includes
15,000 shares subject to stock options exercisable within 60days of
March 31
, 2021.
(
)
### Includes
,
50 shares subject to stock options exercisable within 60days of
March 31
, 2021.
(
)
### Includes 1
,
25 shares subject to stock options exercisable within 60days of
March 31
, 2021.
(
)
### Based solely upon the Schedule
13D/A information filed with the SEC by Piton Capital Partners LLC on March22, 2021.
(
)
### Based solely upon the Form
4 information filed with the SEC by Karen Singer on March22, 2021. The reporting person disclaims beneficial ownership of these securities, except to the extent of her pecuniary interest therein.
(
)
Based solely upon the Schedule13G
/A information filed with the SEC by Renaissance TechnologiesLLC on February11, 2021.
ITEM 13.
, AND DIRECTOR INDEPENDENCE
Policies and Procedures for Approval of Related Person Transactions
We may encounter business arrangements or transactions with businesses and other organizations in which one of our directors or executive officers, significant stockholders or their immediate families may also be a director, executive officer or investor or have some other direct or indirect material interest. We refer to these transactions as related person transactions. Related person transactions have the potential to create actual or perceived conflicts of interest between Evolving Systems and its directors and officers or their immediate family members.
In March2007, the Board formally adopted a policy with respect to related person transactions to document procedures pursuant to which such transactions are reviewed, approved or ratified. The policy applies to any transaction in which (1)the Company is a participant, (2)any related person has a direct or indirect material interest and (3)the amount involved exceeds $120,000, but excludes any transaction that does not require disclosure under Item404(a)of RegulationS
K. The Audit Committee is responsible for reviewing, approving and/or ratifying any related person transaction. The Audit Committee intends to approve only those related person transactions that are in, or are not inconsistent with, the best interests of the Company and its stockholders. Transactions with related persons below the threshold level are reviewed and approved by the Compensation Committee.
Change of Control Provisions with Matthew Stecker and Mark P. Szynkowski
We have entered into Employment Agreements with Matthew Stecker and Mark P. Szynkowski, our CEO and Senior Vice President of Finance, respectively, which contain Change of Control provisions. These agreements were approved by our Compensation Committee and are described above in
Item 11. Executive Compensation under the heading entitled
We have entered into indemnification agreements (the Indemnification Agreements) with each of our directors and named executive officers. Subject to the provisions of the Indemnification Agreements, we will indemnify and advance expenses to such directors and executives in connection with their involvement in any event or occurrence which arises in their capacity as, or as a result of, their position with the Company.
Our Indemnification Agreements are provided as part of the compensation arrangements with our executives, which are subject to approval of the Compensation Committee. Indemnification for directors was approved by the Board of Directors and is part of the standard arrangement for all Company directors.
ITEM 14.
Fees Billed by Independent Registered Public Accounting Firm
The following table sets forth information regarding fees for services rendered by MarcumLLP related to the fiscal year s ended December31, 2020 and 2019
:
(1)
Audit Fees were for professional services for the audit of the consolidated financial statements and other fees for services that only our independent registered public accounting firm can perform, such as the review of our interim consolidated financial statements included in our Form10
### Q and 10
Q/A filings, consents and assistance with and review of documents filed with the SEC.
Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services
The Audit Committee has established a process for review and approval of fees and services of the independent registered public accounting firm. Requests to the Audit Committee for approval of fees and services for the independent registered public accounting firm are made in writing or via e mail by our Senior Vice President of Finance. The request must be specific as to the particular services to be provided but may be either for specific services or a type of service for predictable or recurring services. The Chairman of the Audit Committee reviews the request and provides a response, in writing or via e mail, to our Senior Vice President of Finance and approved requests are subsequently ratified by the Committee as a whole. All of the services provided by the independent registered public accounting firm in 2020 and 2019 were pre-approved by the Audit Committee.
PART IV
ITEM 15.
(a)
1.
Our Consolidated Financial Statements are listed in the Index to Consolidated Financial Statements under Part II, Item 8 of the Original
Form 10-K.
2.
Schedules
All schedules have been omitted because the required information is not present, or not present in amounts sufficient to require submission of the schedules or because the required information is provided in the Consolidated Financial Statements or Notes thereto.
### EXHIBIT INDEX
__________________________
*
Previously filed or furnished, as applicable, with Original Form 10-K
*
*
Identifies each management contract or compensatory plan or arrangement.
ITEM 16.
### FORM 10-K SUMMARY
Not applicable.<|endoftext|>### EXPLANATORY NOTE
The Public Statement indicated that when one or more of such features is included in a warrant, then the warrant should be classified as a liability measured at fair value, with changes in fair value reported in earnings for each period.
Acies Acquisition Corp. 2), or this Annual Report, to amend our annual Report on Form 10-K for the period ended December 31, 2020, originally filed with the Securities and Exchange Commission, or the SEC, on March 26, 2021 (the Original Filing), as amended on March 31, 2021, to restate our financial statements for the period ended December 31, 2020. We are also restating the financial statement as of December 31, 2020 in the accompanying financial statements included in this Annual Report, including describing the restatement and its impact on previously reported amounts.
The restatement results from the Company's prior accounting for its outstanding warrants issued in connection with its initial public offering on October 27, 2020 as components of equity instead of as derivative liabilities.The warrant agreement governing the warrants includes a provision that provides for potential changes to the settlement amounts dependent upon the characteristics of the holder of the warrant.
Based on managements evaluation, the Companys audit committee, in consultation with management concluded that the Companys warrants are not indexed to the Companys ordinary shares in the manner contemplated by ASC Section 815-40-15 because the holder of the instrument is not an input into the pricing of a fixed-for-fixed option on equity shares. In addition, based on managements evaluation, the Companys audit committee, in consultation with management concluded the tender offer provision included in the warrant agreement fails the classified in shareholders equity criteria as contemplated by ASC Section 815-40-25.
The Company has not amended its previously filed Current Report on Form 8-K or Quarterly Reports on Form 10-Q for the period affected by the restatement.The financial information that has been previously filed or otherwise reported for these periods is superseded by the information in this Annual Report on Form 10-K, and the financial statements and related financial information contained in such previously filed reports should no longer be relied upon.
or our financial performance.
### PART I
Item 1.
Business
### General
Initial Public Offering
The Mergers
provided
, however
and
### The Domestication
CICL
### Conditions to Closing
### Covenants
### Termination
### Subscription Agreements
During Mr. companies.
### Our Management Team
Mr.Fetters received a B.S.
### Our Board of Directors
Mr.
Ms.
### Our Advisor to the Board
(sold to IGT in 2001).
Business Strategy
### Other Considerations
### Financial Position
### General
### Competition
Employees
Item 1B.
None.
Item 2.
### Properties
Item 3.
### Legal Proceedings
Ct. L.A. County) (the Complaint).
Item 4.
### Mine Safety Disclosures
Not applicable.
PART II
### Item 5.
(a)
### Market Information
(b)
### Holders
(c)
### Dividends
(d)
None.
(e)
None.
(f)
None.
(g)
Item 6.
Selected Financial Data.
### Item 7.
### Overview
### Recent Developments
### Results of Operations
Contractual Obligations
Warrant Liabilities
Net Loss Per Ordinary Share
Item 7A.
Item 8.
Item 9.
None.
Item 9A.
Controls and Procedures.
Item 9B.
### Other Information
None.
PART III
### Item 10.
### Name
Age
Title
### James J. Murren
Chairman
### Daniel Fetters
Co-Chief Executive Officer
### Edward King
Co-Chief Executive Officer
### Christopher Grove
Executive Vice President
### Zach Leonsis
Director
### Brisa Carleton
Director
### Andrew Zobler
Director
### Sam Kennedy
Director
Mr. Mr. Mr. Mr. Mr. companies. Mr. We believe Mr.
Mr. Previously, Mr. Mr. Mr. Fetters received a B.S.
Mr. Previously, Mr. In this capacity, Mr. Mr. Mr. Mr.
Mr.
from Georgetown University.
Mr. Before joining Starwood, Mr. Mr. We believe Mr.
Mr. Mr. Mr. We believe Mr.
### Advisor to the Board
(sold to IGT in 2001).
Audit Committee
### Nominating Committee
### Compensation Committee
### Code of Ethics
Item 11.
### Executive Compensation
### Item 12.
and ICS Opportunities, Ltd.
### None
Changes in Control
See Item 1. Business above.
### Item 13.
### Director Independence
Leonsis, Ms. Carleton, Mr. Zobler and Mr.
### Item 14
### Audit Fees
Audit-Related Fees.
### Tax Fees
All Other Fees
### Pre-Approval Policy
PART IV
### Item 15.
(a)
(1)
Financial Statements:
(2)
(3)
### Exhibits
20549.
Item 16.
### Form 10-K/A Summary
Not applicable.
ACIES ACQUISITION CORP.
Acies Acquisition Corp.
### Going Concern
### Basis for Opinion
We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S.
As part of our audit
/s/
### Marcum LLP
Marcum
LLP
New York, NY
ACIES ACQUISITION CORP.
BALANCE SHEET
ACIES ACQUISITION CORP.
STATEMENT OF OPERATIONS
ACIES ACQUISITION CORP.
ACIES ACQUISITION CORP.
STATEMENT OF CASH FLOWS
ACIES ACQUISITION CORP.
DECEMBER 31, 2020
NOTE 1.
Acies Acquisition Corp.
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Liquidity and Going Concern
### Risks and Uncertainties
NOTE 2A.
### Basis of Presentation
Emerging Growth Company
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Use of Estimates
Treasury Bills.
(see Note 9).
### Components of Equity
Income Taxes
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Concentration of Credit Risk
These tiers include:
and
Recent Accounting Standards
### NOTE 3. INITIAL PUBLIC OFFERING
### NOTE 4. PRIVATE PLACEMENT
### NOTE 5. RELATED PARTY TRANSACTIONS
Founder Shares
(the Founder Shares).
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
### Due to Sponsor
Promissory NoteRelated Party
### Related Party Loans
NOTE 6.
### Registration Rights
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Underwriting Agreement
### NOTE 7.
Preferred Shares
### Class A Ordinary Shares
Class B Ordinary Shares
### NOTE 8. WARRANTS
Warrants
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
### NOTE 9.
### Level 1:
Level 2:
### Level 3:
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
### Initial Measurement
### Subsequent Measurement
Inc.
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Ct. L.A. County) (the Complaint).
### EXHIBIT INDEX
Exhibit
No.
Description
1.1
LLC, J.P. Inc. (4)
2.1
(5)
3.1
4.1
4.2
4.3
4.4
4.5
Description of Registered Securities***
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
(5)
10.11
(5)
10.12
14.1
Code of Ethics***
21.1
31.1
31.2
32.1
1350**
32.2
1350**
99.1
Audit Committee Charter (2)
99.2
99.3
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.LAB
XBRL Taxonomy Label Linkbase
101.PRE
101.DEF
*
**
***
### Filed herewith
Furnished herewith
Previously Filed
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Vacations Corporation, 4960 Conference Way North, Suite 100, Boca Raton, Florida 33431
* Less than 1 percent.
(
1) Woodbridge is a wholly owned subsidiary of BVH. The number of shares beneficially owned by Woodbridge is as set forth in the Schedule 13G filed by Woodbridge and BVH with the SEC on February 8, 2018. Woodbridge and BVH disclosed in such Schedule 13G that they have shared voting and dispositive power over all 67,261,010 shares.
(2) Mr. Alan Levan, Mr. Abdo, Mr. Jarett Levan and Mr. Wise may be deemed to control BVH by virtue of their collective ownership of shares of BVHs Class A Common Stock and Class B Common Stock representing approximately 79% of the total voting power of BVHs capital stock and the agreements between them. As a result, the shares of the Companys common stock held by Woodbridge (and beneficially owned by BVH) are also included in the beneficial ownership of each of Mr. Alan Levan, Mr. Abdo, Mr. Jarett Levan and Mr. Wise.
Item 13.
BVH currently owns approximately 93% of the Companys issued and outstanding common stock. Alan B. , John E. , and Seth M. Wise, a director of the Company, may be deemed to control both BVH by virtue of their ownership of shares of BVHs Class A Common Stock and Class B Common Stock representing a majority of BVHs voting power and the agreements between them. In addition, Mr. Alan Levan is the Chairman, Chief Executive Officer and President of BVH, Mr. Abdo is the Vice Chairman of BVH, Mr. Jarett Levan is a director and the former President of BVH, and Mr. Wise is a former director and Executive Vice President of BVH. Further, Raymond S. Lopez, the Companys Executive Vice President, Chief Financial Officer and Chief Operating Officer, is also Executive Vice President and Chief Financial Officer of BVH.
See Item 11. Executive Compensation above for information regarding the compensation of Mr. Alan Levan, Mr. Abdo and Mr. Lopez.
Additionally, Lawrence A. Cirillo, Darwin Dornbush, Joel Levy and William R. Nicholson are directors of both the Company and BVH.
Mr. Alan Levan, Mr. Abdo, Mr. Jarett Levan and Mr. Wise may also be deemed to control BBX Capital, the former wholly owned subsidiary of BVH that was spun-off on September 30, 2020, by virtue of their ownership of shares of BBX Capitals Class A Common Stock and Class B Common Stock representing a majority of BBX Capitals voting power. Mr. Alan Levan is the Chairman of BBX Capital, Mr. Abdo is the Vice Chairman of BBX Capital, Mr. Jarett Levan is the President and a director of BBX Capital, and Mr. Wise is an Executive Vice President and director of BBX Capital. In addition, Norman H. Becker, a director of the Company, served on BVHs Board of Directors until he resigned as a director of BVH and became a director New BBX Capital in connection with BVHs spin-off of BBX Capital.
In May 2015, the Company and its subsidiaries entered into an Agreement to Allocate Consolidated Income Tax Liability and Benefits (the Consolidated Tax Agreement) with BVH and its other subsidiaries at the time, including BBX Capital and its subsidiaries, pursuant to which, among other customary terms and conditions, the parties agreed to file consolidated federal tax returns. Under the agreement, the parties calculate their respective income tax liabilities and attributes as if each of them was a separate filer. If any tax attributes are used by another party to the agreement to offset its tax liability, the party providing the benefit will receive an amount for the tax benefits realized. The Company did not make any payments under the agreement during 2020. As of December31, 2020, $1.0million was due to the Company from BVH pursuant to the Agreement. The Consolidated Tax Agreement was terminated with respect to BBX Capital and its subsidiaries in connection with BVHs spin-off of BBX Capital on September 30, 2020.
In April 2015, pursuant to a Loan Agreement and Promissory Note, a wholly owned subsidiary of the Company provided an $80.0million loan to BVH. Interest only payments were required on a quarterly basis, with all outstanding amounts becoming due and payable at maturity.
### During August 2020, BVH repaid the loan in full.
The Company recognized $2.5million of interest income on the loan to BVH for the year ended December 31, 2020.
The Company paid or reimbursed BVH $1.
5 million during 2020 for management advisory, risk management, administrative and other services. No amounts were accrued for such services as of December31, 2020. BVH paid or reimbursed the Company $0.2million for other shared services during 2020. During the fourth quarter of 2020, the Company paid BBX Capital. $0.1million for administrative and other services and $0.1million was accrued for payment to BBX Capital for such services as of December31, 2020.
During the year ended December 31, 2020, the Company paid Abdo Companies, Inc. $38,000 in exchange for certain management services. John E. Abdo, Vice Chairman of the Company and BVH, is the principal shareholder and Chief Executive Officer of Abdo Companies, Inc.
### Director Independence
The Companys Board of Directors has determined that James R. Allmand, III, Norman H. Becker, Lawrence A. Cirillo, Darwin Dornbush, Joel Levy, Mark A. Nerenhausen, William R. Nicholson, Arnold Sevell and Orlando
Sharpe, who together comprise a majority of the Board, are independent under applicable rules and regulations of the SEC and the listing standards of the NYSE. The Board made its independence determinations based on a review of transactions and relationships between each director or his affiliates, on the one hand, and members of the Companys senior management or their affiliates, on the other hand, as well as transactions and relationships between each director or any member of his immediate family, on the one hand, and the Company and its subsidiaries and affiliates, including BVH and BBX Capital, on the other hand.
Accordingly, service on the Board of Directors of BVH and BBX Capital does not, in and of itself, constitute a material relationship that would impair director independence. Independent directors Cirillo, Dornbush, Levy and Nicholson serve on BVHs Board of Directors and its committees. In addition, independent director Becker served on BVHs Board of Directors until he resigned as a director of BVH and became a director of BBX Capital in connection with BVHs spin-off of BBX Capital on September 30, 2020.
### Item 14.
Grant
Thornton
LLP (Grant Thornton) served as the Companys independent registered public accounting firm for 2020 and 2019. The following table presents fees for professional services rendered by Grant Thornton for the audit of the Companys annual financial statements for 2020 and 2019. The table also presents, if applicable, fees billed for audit-related services, tax services and all other services rendered by Grant Thornton to the Company for 2020 and 2019
(1)
(2)
Includes fees for the financial statement audits of one of the Companys subsidiaries and fees for other audit procedures related to the Companys securitizations.
All audit-related services set forth above were pre-approved by the Audit Committee, which concluded that the provision of such services by Grant Thornton was compatible with the maintenance of such firms independence in the conduct of its auditing functions.
Under its charter, the Audit Committee must review and pre-approve both audit and permitted non-audit services provided by the Companys independent registered public accounting firm and shall not engage the independent registered public accounting firm to perform any non-audit services prohibited by law or regulation.
### PART IV
Item 15.<|endoftext|>First day of each fiscal year beginning with the 2020 fiscal year in an amount equal to the least of (i)5% of the outstanding shares of our common stock as of January 1 of each year, or (ii)such number of shares of our common stock as determined by our board of directors.
### Summary Description of the 2019 Plan
In February 2019, the Company assumed the 2019 Plan in connection with its change of domicile to Delaware from Utah pursuant to a merger. The terms of the 2019 Plan provide for the grant of stock options, stock appreciation rights, restricted stock awards, restricted stock unit awards, deferred stock awards, dividend equivalent awards, stock payment awards, performance-based awards and other stock-based awards. Stock options may be granted under the 2019 Plan with an exercise price not less than 100% of the fair market value of the common stock on the date of grant. Stock options under the 2019 Plan may be granted with terms of up to ten years. The total number of shares of our common stock initially reserved for issuance under the 2019 Plan was equal to 1,000,000. Additionally, the number of shares of common stock that may be issued under the 2019 Plan automatically increases on each January 1, beginning with January 1, 2020, and continuing until January 1, 2029 by an amount equal to the lesser of (i) 5% of the number of outstanding shares of common stock on that date and (ii) an amount determined by the Board. As of December 31, 2020,
919,700 shares of common stock were available for future grants under the 2019 Plan.
The following table sets forth information regarding shares of our Class A Common Stock beneficially owned as of April 15, 2021 by: (i) each of our named officers and directors; (ii) all officers and directors as a group; and (iii) each person known by us to beneficially own five percent or more of the outstanding shares of its common stock. Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to the securities. We deem shares of Common Stock that may be acquired by an individual or group within 60 days of April 15, 2021 pursuant to the exercise of options or warrants to be outstanding for the purpose of computing the percentage ownership of such individual or group, but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person shown in the table. Except as indicated in footnotes to this table, we believe that the stockholders named in this table have sole voting and investment power with respect to all shares of common stock shown to be beneficially owned by them based on information provided to us by these stockholders. Percentage of ownership is based on 3,560,462 shares of Class A Common Stock outstanding on April 15, 2021.
*
Represents beneficial ownership of less than 1%of the Companys outstanding common stock.
(1)
Mr. Cohens total consists of (a) 307,577 shares of Class A Common Stock, (b) 40,599 shares of Class B Common Stock convertible into 40,599 shares of Class A Common Stock and (c) 5,833 shares of Class A Common Stock underlying restricted stock units held by Mr. Cohen that will vest within 60 days of April 15, 2021. Mr. Cohen holds (a) 45,456 shares of Class A Common Stock th rough PENSCO Trust Company LLC, Custodian FBO Peter A. Cohen and (b)(i) 262,121 shares of Class A Common Stock and (ii) 40,599 shares of Class B Common Stock through
The Peter A. Cohen Revocable Trust. Peter A. Cohen is the sole trustee of The Peter A. Cohen Revocable Trust and may be deemed to share voting and investment power over the shares held by The Peter A. Cohen Revocable Trust
Does not include 47,500 shares underlying restricted stock units that will not vest within 60 days.
(2)
Mr. Piermonts total consists of (a) 33,674 shares of Class A Common Stock, (b) 40,599 shares of Class B Common Stock convertible into 40,599 shares of Class A Common Stock and (c)
5,417 shares of Class A Common Stock underlying restricted stock units held by Mr. Piermont that will vest within 60 days of April 15, 2021
Mr. Piermont holds (i) 9,091 shares of Class A Common Stock t hrough PENSCO Trust Company LLC FBO Jeffrey C. Piermont and (ii) 10,000 shares of Class A Common Stock individually.Does not include 45,000 shares underlying restricted stock units that will not vest within 60 days.
(3)
Mr. Patels total consists of (a) 17,316 shares of Class A Common Stock and (b)
4,583 shares of Class A Common Stock underlying restricted stock units held by Mr. Patel that will vest within 60 days of April 15, 2021.
Mr. Patel holds 6,900 shares of Class A Common Stock through
PENSCO Trust Company LLC, Custodian FBO Milun K. Patel IRA.Does not include 40,000 shares underlying restricted stock units that will not vest within 60 days.
(4)
Ms. Farrells total consists of (a) 3,125 shares of Class A Common Stock and (b)
1,250 shares of Class A Common Stock underlying restricted stock units held by Ms. Farrell that will vest within 60 days of April 15, 2021
(5)
Mr. Krolls total consists of (a) 3,125 shares of Class A Common Stock and (b)
Kroll that will vest within 60 days of April 15, 2021
(6)
### Mr. Greenblatts total consists of
Greenblatt that will vest within 60 days of April 15, 2021
(7)
Mr. Pechters total consists of (a) 54,546 shares of Class A Common Stock and (b)
Pechter that will vest within 60 days of April 15, 2021
Mr, Pechter holds (i) 18,182 shares of Class A Common Stock through ADJOZO, LLC, (ii) 36,364 shares of Class A Common Stock through Cacti Asset Management, LLC.
(8)
See footnotes (1) through (7).
ITEM13.
On December 14, 2020, we entered into a subscription agreement at an offering price of $11.00 per share, with Cacti Asset Management, LLC, controlled by Joshua Pechter, for 18,182 shares of Class A Common Stock in exchange for $200,002 cash.
On February 5, 2021, we entered into a subscription agreement at an offering price of $11.00 per share, with Cacti Asset Management, LLC, controlled by Joshua Pechter, for 18,182 shares of Class A Common Stock in exchange for $200,002 cash.
On February 11, 2021, we entered into a subscription agreement at an offering price of $11.00 per share, with the Peter A. Cohen Revocable Trust, on behalf of Peter A. Cohen, for 45,455 shares of Class A Common Stock in exchange for $500,005 cash.
### Director Independence
See Directors, Executive Officers and Corporate Governance Director Independence above.
ITEM14.
The following table sets forth fees paid to our current independent registered public accounting firm, MaloneBailey, LLP, for the years ended December 31, 2020 and 2019.
(1)
Audit Fees include fees for services rendered for the audit of our annual financial statements, the review of financial statements included in our quarterly reports on Form 10-Q, assistance with and review of documents filed with the SEC and consents and other services normally provided in connection with regulatory filings.
(2)
Audit-Related Fees include fees incurred for due diligence in connection with potential transactions and accounting consultations.
(3)
Tax fees would include fees for services rendered for tax compliance, tax advice, and tax planning.
(4)
All Other Fees would include fees that do not constitute Audit Fees, Audit-Related Fees, or Tax Fees. There were no other fees incurred with MaloneBailey, LLP in 2020 and 2019.
PART IV
ITEM15:
The financial statements, financial statement schedules and exhibits listed in the exhibit index of the Original Filing and the exhibits listed in the exhibit index of this Amendment are filed with, or incorporated by reference in, this Amendment.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
On which it sends the notice of redemption to the warrant holders; if, and only if, the Private Placement Warrants are also concurrently exchanged at the same price (equal to a number of shares of Class A common stock) as the outstanding Public Warrants, as described above; and if, and only if, there is an effective registration statement covering the issuance of the shares of Class A common stock issuable upon exercise of the warrants and a current prospectus relating thereto available throughout the 30-day period after written notice of redemption is given.
The fair market value of the Company's Class A common stock shall mean the average last reported sale price of its Class A common stock for the 10 trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of warrants. This redemption feature differs from the typical warrant redemption features used in other blank check offerings.
No fractional shares of Class A common stock will be issued upon redemption. If, upon redemption, a holder would be entitled to receive a fractional interest in a share, the Company will round down to the nearest whole number of the number of shares of Class A common stock to be issued to the holder.
Pursuant to the warrant agreement, references above to Class A common stock shall include a security other than Class A common stock into which the Class A common stock has been converted or exchanged for in the event the Company is not the surviving company in its initial Business Combination.
If the Company does not complete a Business Combination within the Combination Period and the Company liquidates the funds held in the Trust Account, holders of warrants will not receive any of such funds with respect to their warrants, nor will they receive any distribution from the Company's assets held outside of the Trust Account with the respect to such warrants.
Preferred Stock
The Company is authorized to issue 1,000,000 shares of preferred stock with a par value of $0.0001 per share. At December 31, 2020, and 2019, there are no shares of preferred stock issued or outstanding.
### Class A Common Stock
The Company is authorized to issue 100,000,000 shares of Class A common stock with a par value of $0.0001 per share. As of December 31, 2020, there were 23,000,000 shares of Class A common stock issued or outstanding, including 21,975,605 shares of Class A common stock subject to possible redemption. As of December 31, 2019, there were no shares of Class A common stock issued or outstanding.
Class B Common Stock
The Company is authorized to issue 10,000,000 shares of Class B common stock with a par value of $0.0001 per share. Holders of the Company's Class B common stock are entitled to one vote for each share. On December 30, 2019, the Company initially issued 4,312,500 shares of Class B common stock. On February 19, 2020, in connection with the proposed increase of the size of the Initial Public Offering, the Company effected a split of its Class B common stock resulting in the Sponsor holding 5,360,000 Founder Shares and an increase in the total number of Class B common stock outstanding from 4,312,500 to 5,750,000. Of the 5,750,000 shares of Class B common stock outstanding, up to 750,000 shares were subject to forfeiture to the Company to the extent that the underwriters' over-allotment option was not exercised in full or in part, so that the initial stockholders would collectively own 20% of the Company's issued and outstanding common stock after the Initial Public Offering. thus, the 750,000 shares of Class B common stock were no longer subject to forfeiture. As of December 31, 2020, and 2019, there were 5,750,000 shares of Class B common stock issued outstanding.
The Class B common stock will automatically convert into Class A common stock at the time of the Initial Business Combination on a one-for-one basis, subject to adjustment. In the case that additional shares of Class A common stock or equity-linked securities are issued or deemed issued in connection with the initial Business Combination, the number of shares of Class A common stock issuable upon conversion of all Class B common stock will equal, in the aggregate, on an as-converted basis, 20% of the total number of shares of Class A common stock outstanding after such conversion (after giving effect to any redemptions of shares of Class A common stock by Public Stockholders), including the total number of shares of Class A common stock issued, or deemed issued or issuable upon conversion or exercise of any equity-linked securities or rights issued or deemed issued, by the Company in connection with or in relation to the consummation of the initial Business Combination, excluding any shares of Class A common stock or equity-linked securities or rights exercisable for or convertible into shares of Class A common stock issued, or to be issued, to any seller in the initial Business Combination and any Private Placement Warrants issued to the Sponsor, officers or directors upon conversion of Working Capital Loans, provided that such conversion of Founder Shares will never occur on a less than one-for-one basis.
The estimated fair value of the Public Warrants transferred from a Level 3 measurement to a Level 1 fair value measurement in June 2020, upon trading of the Public Warrants in an active market.
Treasury securities.
The fair value of Public Warrants issued in connection with the Initial Public Offering have been measured based on the listed market price of such warrants, a Level 1 measurement, beginning in June 2020.
The Company estimates the volatility of its Class A common stock warrants based on implied volatility from the Companys traded warrants and from historical volatility of select peer companys Class A common stock that matches the expected remaining life of the warrants.
There were no assets or liabilities measured at fair value on a recurring basis as of December 31, 2019.
The change in the fair value of the derivative warrant liabilities measured with Level 3 inputs for the year ended December 31, 2020 is summarized as follows:
Note 10.
The following tables contain unaudited quarterly financial information for the three months ended March 31, 2020, for the three and six months ended June30, 2020, and for the three and nine months ended September30, 2020 that has been updated to reflect the restatement and revision of the Companys financial statements as described in Note 2Restatement of Previously Issued Financial Statements. The restatement and revision had no impact on net cash flows from operating, investing or financing activities. The Company has not amended its previously filed Quarterly Report on Form10-Q for the Affected Period.
### Note 11 Income Taxes
The income tax provision (benefit) for the year ended December 31, 2020 consists of the following:
The provision for income taxes was deemed to be de minimis for the period from November 1, 2019 (inception) through December 31, 2019.
For the year ended December 31, 2020 and for the period from November 1, 2019 (inception) to December 31, 2019, the valuation allowance was $101,676 and $483, respectively.
There were no unrecognized tax benefits as of December 31, 2020, and 2019. No amounts were accrued for the payment of interest and penalties as of December 31, 2020, and 2019.
### Note 12 Subsequent Events
Management has evaluated subsequent events and transactions that occurred after the balance sheet date up through the date the financial statements were issued. Based upon this review, the Company did not identify any subsequent events that would have required adjustment or disclosure in the financial statements.<|endoftext|>CORP.
### DECEMBER 31, 2020
Liquidity and Going Concern
### Risks and Uncertainties
The Company previously accounted for its outstanding Public Warrants (as defined in Note 4) and Private Placement Warrants issued in connection with its Initial Public Offering as components of equity instead of as derivative liabilities.The warrant agreement governing the warrants includes a provision that provides for potential changes to the settlement amounts dependent upon the characteristics of the holder of the warrant.
On April 12, 2021, the SEC released a Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies (the SEC Staff Statement). Specifically, the SEC Staff Statement focused on certain settlement terms and provisions related to certain tender offers following a business combination, which terms are similar to those contained in the warrant agreement governing our warrants. Following the SEC Staff Statement, the Companys management further evaluated the warrants under Accounting Standards Codification (ASC) Subtopic 815-40, Contracts in Entitys Own Equity. Based on managements evaluation, the Companys audit committee, in consultation with management and after discussion with the Companys independent registered public accounting firm, concluded that the Companys Private Placement Warrants are not indexed to the Companys common shares in the manner contemplated by ASC Section 815-40-15 because the holder of the instrument is not an input into the pricing of a fixed-for-fixed option on equity shares.
NOTE 2A.
### Basis of Presentation
Emerging Growth Company
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Use of Estimates
Treasury Bills.
### Warrant Liabilities (Restated)
The fair value of the warrants was estimated using a Monte Carlo simulation approach (see Note 9).
### Components of Equity
Upon the IPO, the Company issued ClassA Ordinary shares and Warrants. The Company allocated the proceeds received from the issuance using thewith-and-withoutmethod. Under that method, the Company first allocated the net proceeds to the Warrants based on their initial fair value measurement of $18,738,667 and then allocated the remaining proceeds, net of the remaining underwriting discounts and offering costs of $11,525,071, to the ClassA Ordinary shares. A portion of the ClassA Ordinary shares are presented within temporary equity, as certain shares are subject to redemption upon the occurrence of events not solely within the Companys control. For the sale of the Private Warrants, the Company recorded a warrant liability for the initial fair value of the warrants in the amount of $7,258,667, with the amount of the proceeds in excess of the initial fair value recorded as additional paid in capital.
Income Taxes
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Net Income (Loss) Per Share (Restated)
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Concentration of Credit Risk
Fair Value Measurements (Restated)
These tiers include:
and
### Derivative Financial Instruments (Restated)
The Company evaluates its financial instruments to determine if such instruments are derivatives or contain features that qualify as embedded derivatives in accordance with ASC Topic 815, Derivatives and Hedging. For derivative financial instruments that are accounted for as liabilities, the derivative instrument is initially recorded at its fair value on the grant date and is then re-valued at each reporting date, with changes in the fair value reported in the statements of operations. Derivative liabilities are classified in the balance sheet as current or non-current based on whether or not net-cash settlement or conversion of the instrument could be required within 12 months of the balance sheet date
Recent Accounting Standards
### NOTE 3. INITIAL PUBLIC OFFERING
### NOTE 4. PRIVATE PLACEMENT
### NOTE 5. RELATED PARTY TRANSACTIONS
Founder Shares
(the Founder Shares).
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
### Due to Sponsor
Promissory NoteRelated Party
### Related Party Loans
NOTE 6.
### Registration Rights
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Underwriting Agreement
### NOTE 7. SHAREHOLDERS EQUITY (Restated)
Preferred Shares
### Class A Ordinary Shares
At December 31, 2020, there were 3,574,009 Class A Ordinary Shares issued and outstanding, excluding 17,950,991 ClassA Ordinary Shares subject to possible redemption.
Class B Ordinary Shares
### NOTE 8. WARRANTS
Warrants
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
and if, and only if, the closing price of the Class A Ordinary Shares equals or exceeds $10.00 per share (as adjusted for share splits, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within a 30-trading day period ending on the third trading day prior to the date on which the Company send the notice of redemption to warrant holders.
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
### NOTE 9.
### Level 1:
Level 2:
### Level 3:
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
The following table presents information about the Companys assets and liabilities that are measured at fair value on a recurring basis at December31, 2020 and indicates the fair value hierarchy of the valuation inputs the Company utilized to determine such fair value.
The Warrants were accounted for as liabilities in accordance with ASC 815-40 and are presented within warrant liabilities on the balance sheet. The warrant liabilities are measured at fair value at inception and on a recurring basis, with changes in fair value presented within change in fair value of warrant liabilities in the consolidated statement of operations.
### Initial Measurement
The Company established the initial fair value for the Warrants on October 27, 2020, the date of the Companys Initial Public Offering, using a Monte Carlo simulation model for the Private Placement Warrants and the Public Warrants.
The key inputs into the Monte Carlo simulation model for the Private Placement Warrants and Public Warrants were as follows at initial measurement:
On October 27, 2020, the Private Placement Warrants and Public Warrants were determined to be $1.60 per warrant for aggregate values of $6.9 million and $10.7 million, respectively.
### Subsequent Measurement
As of December 31, 2020, the aggregate values of the Private Placement Warrants and Public Warrants were $9.7 million and $15.3 million, respectively.
Due to the use of quoted prices in an active market (Level 1) to measure the fair value of the Public Warrants, subsequent to initial measurement, the Company had transfers out of Level 3 totaling $11,480,000 during the period from October 27, 2020 through December 31, 2020.
Based upon this review, other than as described below and above for the restatement, the Company did not identify any subsequent events that would have required adjustment or disclosure in the financial statements.
Inc.
ACIES ACQUISITION CORP.
### DECEMBER 31, 2020
Ct. L.A. County) (the Complaint).
### EXHIBIT INDEX
Exhibit
No.
Description
1.1
LLC, J.P. Inc. (4)
2.1
(5)
3.1
4.1
4.2
4.3
4.4
4.5
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
(5)
10.11
(5)
10.12
Form of Amended and Restated Registration Rights Agreement, by and among the Registrant, Acies Acquisition LLC, (6)
14.1
Code of Ethics*
21.1
31.1
31.2
32.1
1350**
32.2
1350**
99.1
Audit Committee Charter (2)
99.2
99.3
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.LAB
XBRL Taxonomy Label Linkbase
101.PRE
101.DEF
*
**
### Previously Filed
Previously Furnished
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Up to $250,000. The Company performs ongoing evaluations of these institutions to limit its concentration risk exposure.
### Concentration of Sources of Supply
The Company is dependent on a third-party provider for its online platform, which includes a learning management system that stores, manages and delivers course content, enables assignment uploading, provides interactive communication between students and faculty, and supplies online assessment tools. The partial or complete loss of this source may have an adverse effect on the Companys revenues and results of operations.
23. Segment Information
Following the Sale Transaction, the Company now operates in two reportable segments: The University Partners Segment and the Zovio Growth Segment. These segments were recast based upon the Companys respective offerings.
For additional information and description of the Sale Transaction, see Note 1, Nature of Business. The Company reports segment information based upon the management approach, and the Sale Transaction resulted in a change in how the chief operating decision maker viewed the operations moving forward. This change included the creation of three operating segments: Fullstack, TutorMe, and Zovio, and two reportable segments: The University Partners Segment and the Zovio Growth Segment.
The Companys operating segments are determined based on (i) financial information reviewed by the chief operating decision maker, the CEO, (ii) internal management and related reporting structure, and (iii) the basis upon which the CEO makes resource allocation decisions. The Fullstack and TutorMe operating segments are aggregated into a single reportable segment, the Zovio Growth Segment. The aggregation of the Fullstack and TutorMe operating segments is based on their uniform customer bases and methods of services provided, as well as evaluation of quantitative thresholds as required by ASC 280-10-50-12. Based on these same quantitative tests, the Zovio operating segment is a separate reportable segment, the University Partners Segment. This change in segment reporting did not have any impact on the determination of reporting units used to assess impairment under ASC 350,
and the goods and services. The Companys University Partners Segment also includes the tuition revenue related to the University prior to the Sale Transaction on December 1, 2020. The Companys Zovio Growth Segment includes its subsidiaries Fullstack and TutorMe, an online coding academy and tutoring service, respectively.
Segment Performance
The following table summarizes financial information regarding each reportable segments results of operations for the periods presented (in thousands):
(1)
Segment profitability represents EBITDA. The following table reconciles total loss before income taxes to total segment profitability (in thousands):
For the years ended December31, 2020 and 2019 the legacy University accounted for $356.1million and $407.3million, respectively, of the University Partners segment revenue.
For each of the years ended December31, 2020 and 2019, there were no customers or individual university clients which accounted for 10% or more of the Zovio Growth segment revenue.
The Companys total assets by segment are as follows (in thousands):
The Companys accounts receivable and deferred revenue in each segment are as follows (in thousands):
As of December31, 2020 there were no individual partners or customers which accounted for 10% or more of the University Partners segment net accounts receivable balance. As of December 31, 2019, the students of the legacy University accounted for $28.5million of the University Partners segment net accounts receivable balance.
As of each December31, 2020 and 2019, there were no individual partners or customers which accounted for 10% or more of the Zovio Growth segment net accounts receivable balance, as customers are individual students or third parties paying on their behalf, rather than university clients.
The Companys goodwill amounts as of December 31, 2020 are fully attributable to the Zovio Growth Segment. For additional information on goodwill, see Note 11, Goodwill and intangibles, net.
Item9.
None.
### Item9A. Controls and Procedures
Our disclosure controls and procedures are designed to provide reasonable assurance that information required to be disclosed by us in reports that we file or submit under the Securities Exchange Act of 1934, as amended (the Exchange Act), is recorded, processed, summarized and reported within the time periods specified in the SECs rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in reports we file or submit under the Exchange Act is accumulated and communicated to our management, including our Principal Executive Officer and Principal Financial Officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.
Under the supervision and with the participation of our management, including our Chief Executive Officer and our Principal Financial Officer, we carried out an evaluation of the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report pursuant to Rule 13a-15(b) and Rule 15d-15(b) of the Exchange Act. Based on this evaluation, our Chief Executive Officer and our Principal Financial Officer concluded that our disclosure controls and procedures were effective at the reasonable assurance level as of December31, 2020.
(ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. generally accepted accounting principles (GAAP), and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of our assets that could have a material effect on our financial statements.
Internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements prepared for external purposes in accordance with GAAP.
Our management has assessed the effectiveness of our internal control over financial reporting as of December31, 2020, based on the framework in
Our management has concluded that our internal control over financial reporting was effective as of December31, 2020.
The effectiveness of our internal control over financial reporting as of December31, 2020, has been audited by Deloitte and Touche LLP, an independent registered public accounting firm.
We continually assess the adequacy of our internal control over financial reporting and make improvements as deemed appropriate. As previously reported on December 1, 2020, we closed on the sale of substantially all of Ashford University, LLCs (AU LLC) assets and liabilities to the University of Arizona Global Campus. There were changes in controls in connection with sale on December 1, 2020, specific to AU LLC. Additionally, we implemented new processes and controls specifically related to our revenue process in order to reflect our new environment as an education technology services company. There have been no other changes in internal control over financial reporting, during the three months ended December31, 2020 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
### Item9B. Other Information
None.
PART III
Item10.
### Item11. Executive Compensation
Item12.
Item13.
### Item14.
PART IV
Item15.<|endoftext|>If a registration statement covering the shares of ClassA common stock issuable upon exercise of the warrants is not effective by the 60 th business day after the closing of the initial Business Combination, the warrant holders may, until such time as there is an effective registration statement and during any period when the Company will have failed to maintain an effective registration statement, exercise warrants on a cashless basis in accordance with Section3(a)(9) of the Securities Act or another exemption. If that exemption, or another exemption, is not available, holders will not be able to exercise their warrants on a cashless basis.
The warrants have an exercise price of $11.50 per share, subject to adjustments, and will expire five years from the consummation of a Business Combination or earlier upon redemption or liquidation. The exercise price and number of shares of ClassA common stock issuable upon exercise of the warrants may be adjusted in certain circumstances including in the event of a share dividend, or recapitalization, reorganization, merger or consolidation. In addition, if (x)the Company issues additional shares of ClassA common stock or equity-linkedsecurities for capital raising purposes in connection with the closing of its initial Business Combination at an issue price or effective issue price of less than $9.20 per share of ClassA common stock (with such issue price or effective issue price to be determined in good faith by the Companys board of directors and, in the case of any such issuance to the Sponsor or its affiliates, without taking into account any Founder Shares held by the Sponsor or such affiliates, as applicable, prior to such issuance) (the Newly Issued Price), (y)the aggregate gross proceeds from such issuances represent more than 60% of the total equity proceeds, and interest thereon, available for the funding of the Companys initial Business Combination on the date of the consummation of such initial Business Combination (net of redemptions), and (z)the volume weighted average trading price of the Companys common stock during the 20 trading day period starting on the trading day prior to the day on which the Company consummates its initial Business Combination (such price, the Market Value) is below $9.20 per share, the exercise price of the warrants will be adjusted (to the nearest cent) to be equal to 115% of the higher of the Market Value and the Newly Issued Price, and the $18.00 per share redemption trigger price described below will be adjusted (to the nearest cent) to be equal to 180% of the higher of the Market Value and the Newly Issued Price.
Additionally, in no event will the Company be required to net cash settle the Public Warrants. If the Company calls the Public Warrants for redemption, management will have the option to require all holders that wish to exercise the Public Warrants to do so on a cashless basis, as described in the warrant agreement. The exercise price and number of common shares issuable upon exercise of the Public Warrants may be adjusted in certain circumstances including in the event of a stock dividend, extraordinary dividend or recapitalization, reorganization, merger or consolidation. If the Company is unable to complete a Business Combination within the Combination Period and the Company liquidates the funds held in the Trust Account, holders of warrants will not receive any of such funds with respect to their warrants, nor will they receive any distribution from the Companys assets held outside of the Trust Account with respect to such warrants.
Once the Warrants become exercisable, the Company may redeem the outstanding Warrants (except for the Private Placement Warrants): in whole and not in part; upon a minimum of 30 days prior written notice of redemption (the 30-dayredemption period); and if, and only if, the last reported sale price of the Class A common stock equals or exceeds $18.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within a 30-tradingday period commencing once the Warrants become exercisable and ending on the third trading day prior to the date on which the Company sends the notice of redemption to the warrant holders.
The Company will not redeem the warrants unless a registration statement under the Securities Act covering the shares of ClassA common stock issuable upon exercise of the warrants is effective and a current prospectus relating to those shares of ClassA common stock is available throughout the 30-dayredemption period, except if the warrants may be exercised on a cashless basis and such cashless exercise is exempt from registration under the Securities Act. If and when the warrants become redeemable by the Company, it may not exercise its redemption right if the issuance of shares of common stock upon exercise of the warrants is not exempt from registration or qualification under applicable state blue sky laws or the Company is unable to effect such registration or qualification.
The Private Placement Warrants will be identical to the Public Warrants underlying the Units being sold in the Initial Public Offering, except that the Private Placement Warrants will, and the common shares issuable upon the exercise of the Private Placement Warrants will not, be transferable, assignable or salable until after the completion of a Business Combination, subject to certain limited exceptions. Additionally, the Private Placement Warrants will be exercisable on a cashless basis and will be non-redeemableso long as they are held by the initial purchasers or their permitted transferees. If the Private Placement Warrants are held by someone other than the initial purchasers or their permitted transferees, the Private Placement Warrants will be redeemable by the Company and exercisable by such holders on the same basis as the Public Warrants.
### Note7Fair Value Measurements
The following table presents information about the Companys financial assets that are measured at fair value on a recurring basis as of December 31, 2020 by level within the fair value hierarchy:
Transfers to/from Levels 1, 2 and 3 are recognized at the end of the reporting period. There were no transfers between levels for the period from September 18, 2020 (inception) through December 31, 2020.
### Note 8Income Taxes
The Companys taxable income primarily consists of interest income on the Trust Account. The Companys general and administrative expenses are generally considered start-up costs and are not currently deductible.
In assessing the realization of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. Management considers the scheduled reversal of deferred tax assets, projected future taxable income and tax planning strategies in making this assessment.
There were no unrecognized tax benefits as of December 31, 2020. No amounts were accrued for the payment of interest and penalties at December 31, 2020.
A reconciliation of the statutory federal income tax rate (benefit) to the Companys effective tax rate (benefit) is as follows:
### Note9Subsequent Events
The Company evaluated subsequent events and transactions that occurred after the balance sheet date up to the date that the financial statements were available to be issued, and determined that there have been no events that have occurred that would require adjustments to the disclosures in the financial statements.
EXHIBIT INDEX
*
Furnished herewith
(1)
Incorporated by reference to the Companys Form 8-K, filed with the SEC on December 28, 2020.
(2)
Incorporated by reference to the Companys S-1/A, filed on December 15, 2020.
(3)
Incorporated by reference to the Companys S-1, filed on December 7, 2020.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Ocumension for the development and commercialization in Mainland China, Hong Kong, Macau and Taiwan of DEXYCU for the treatment of post-operative inflammation following ocular surgery. Pursuant to the terms of the license agreement, we received upfront payments of $2.0million from Ocumension in February 2020 and we would have been eligible to receive up to (i) $6.0million upon the achievement by Ocumension of certain prescribed development and regulatory milestones, and (ii) $6.0million commercial sales-based milestones. In exchange, Ocumension received exclusive rights to develop and commercialize DEXYCU in Mainland China, Hong Kong, Macau and Taiwan, at its own cost and expense with us supplying product for clinical trials and commercial sale. In addition, Ocumension received a fixed number of hours of technical assistance support from us at no cost.
In August 2020, we entered into a Memorandum of Understanding (2020 MOU) pursuant to which we received aone-timenon-refundablepayment of $9.5million (Accelerated Milestone Payment) from Ocumension as a full and final payment of the combined remaining development, regulatory and sales milestone payments under our license agreements with Ocumension for the treatment of chronicnon-infectiousuveitis affecting the posterior segment of the eye and for the treatment of post-operative inflammation following ocular surgery. Upon payment of the Accelerated Milestone Payment, the remaining $11.75million in combined remaining development and sales milestone payments under our original license agreement with Ocumension upon the achievement by Ocumension of (i)remaining development and regulatory milestones of $6.25million and commercial sales-based milestones of $3.0million for the development and commercialization of our three-year micro insert using the Durasert technology for the treatment of chronicnon-infectiousuveitis affecting the posterior segment of the eye; and (ii) $6.0million upon the achievement by Ocumension of certain prescribed development and regulatory milestones, and $6.0million commercial sales-based milestones for the development and commercialization in Mainland China, Hong Kong, Macau and Taiwan of DEXYCU for the treatment of post-operative inflammation following ocular surgery, totaling up to $21.25million, were permanently extinguished and will no longer be due to us. In exchange, Ocumension also received exclusive rights to develop and commercialize YUTIQ and DEXYCU products under its own brand names in South Korea and other jurisdictions across Southeast Asia in Brunei, Burma (Myanmar), Cambodia, Timor-Leste, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand and Vietnam, at its own cost and expense with us supplying product for clinical trials and commercial sale.
Other than a fixed number of hours of technical assistance support to be provided at no cost by us, Ocumension is responsible for all development, regulatory and commercial costs, including any additional technical assistance requested.
### Equity Financing
On the Closing Date, we entered into the Share Purchase Agreement with Ocumension, pursuant to which we offered and sold to Ocumension 3,010,722 shares of our common stock at a purchase price of $5.2163 per share, resulting in gross proceeds of approximately $15.7million. On the Closing Date, we entered into the Voting Agreement with Ocumension, EWHP andEWHP-A.
The initial Investor Designee is Ye (Victor) Liu.
### Lease Agreement
Effective June11, 2018, we leased 1,381 square feet of incremental office space in Basking Ridge, New Jersey from Caladrius Biosciences Inc. David J. Mazzo, a former member of our Board, is the President and Chief Executive Officer and a member of the board of directors of Caladrius Biosciences Inc. through June 2020. The lease term extends through May 2022. Base rent of $2,884 per month increases by $0.50 per square foot each year beginning June1, 2019. During the period from inception through the year ended December31, 2020, we incurred approximately $95,000 of rent expense for this facility. During the year ended December31, 2020, we incurred approximately $40,000 of rent expense for this facility.
Director and Officer Indemnification Agreements
In general, these agreements provide that we will indemnify the director or executive officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or executive officer of our company or in connection with their service at our request for another corporation or entity. The indemnification agreements also provide for procedures that will apply in the event that a director or executive officer makes a claim for indemnification and establishes certain presumptions that are favorable to the director or executive officer.
We maintain a general liability insurance policy that covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.
ITEM14.
Deloitte& Touche LLP, or Deloitte, was our independent registered public accounting firm for the years ended December31, 2020 and December31, 2019.
Accounting Fees and Services
The following table sets forth the total fees paid to Deloitte and its affiliates with respect to the years ended December31, 2020 and, December31, 2019:
(1)
Audit fees relate to professional services rendered in connection with the audit for the years ended December31, 2020 and December31, 2019, reviews of the condensed consolidated financial statements performed in connection with each of our Quarterly Reports on Form
10-Q.
The years ended December31, 2020 and 2019 includes fees for comfort letters for both equity raises and our ATM program.
(2)
Tax fees paid to Deloitte for the years ended December31, 2020 and 2019 were related to the preparation of various corporate tax returns as well as tax advice.
(3)
All other fees relate to a subscription to Deloittes on-line accounting research database.
Our policies require the Audit Committee topre-approveall audit and permittednon-auditservices provided by the independent registered public accounting firm, including engagement fees and terms. The Audit Committee may delegatepre-approvalauthority to one or more of its members, who will report anypre-approvaldecisions to the full committee at its next scheduled meeting but may not delegatepre-approvalauthority to members of management. The Audit Committee may approve only thosenon-auditservices classified as all other services that it believes to be routine and recurring services, to be consistent with SEC rules and to not impair the auditors independence with respect to us. The Audit Committee reviewed andpre-approvedall audit services and permittednon-auditservices performed during the years ended December31, 2020 and 2019.
PART IV
ITEM15.
(a)(1) Financial Statements
The financial statements filed as part of the 2020 Annual Report on Form
10-K are listed on the Index to Consolidated Financial Statements on page
F-1 of the 2020 Annual Report on Form
10-K filed with the SEC on March12, 2021.
Schedules were omitted because of the absence of conditions under which they were required or because the required information was included in our Consolidated Financial Statements or Notes thereto contained in the 2020 Annual Report on Form
10-K.
(a)(3) Exhibits.
#
Portions of this exhibit have been omitted in compliance with Item 601 of Regulation
S-K.
+
The final versions of documents denoted as form of have been omitted pursuant to Rule
12b-31.
Such final versions are substantially identical in all material respects to the filed versions of such documents, provided that the name of the investor, and the investors and/or the Companys signatures are included in the final versions.
(a)
### Filed herewith
(b)
Furnished therewith<|endoftext|>The Non-Qualified ESPP to provide employees of the Company and participating subsidiaries with an opportunity to acquire a proprietary interest in the Company through the purchase, by means of payroll deductions, of shares of the Companys common stock at a discount from the market price of the common stock at the time of purchase. The Non-Qualified ESPP is intended for use primarily by employees of the Company located outside the United States. Under the plan, eligible employees may purchase common stock through payroll deductions of up to 10% of compensation. The price per share is the lower of 85% of the market price at the beginning or end of each six-month offering period.
ITEM 13.
: Other than compensation agreements and other arrangements which are described above in Item 11 Executive Compensation, since September 28, 2019, there has not been a transaction or series of related transactions to which the Company was or is a party involving an amount in excess of $120,000 and in which any director, executive officer, holder of more than five percent (5%) of any class of our voting securities, or any member of the immediate family of any of the foregoing persons, had or will have a direct or indirect material interest. In January 2008, the Board of Directors adopted a written related person transaction approval policy, which was amended in November 2018, and which sets forth the Companys policies and procedures for the review, approval or ratification of any transaction required to be reported in its filings with the SEC. The Companys policy with regard to related person transactions is that all related person transactions between the Company and any related person (as defined in Item 404 of Regulation S-K) or their affiliates, in which the amount involved is equal to or greater than $120,000, be reviewed by the Companys General Counsel and approved by the Audit Committee. In addition, the Companys Code of Business Conduct and Ethics requires that employees discuss with the Companys Compliance Officer any significant relationship (or transaction) that might raise doubt about such employees ability to act in the best interest of the Company.
Director Independence
: Each year, the Board of Directors reviews the relationships that each director has with the Company and with other parties. Only those directors who do not have any of the categorical relationships that preclude them from being independent within the meaning of applicable Nasdaq Rules and who the Board of Directors affirmatively determines have no relationships that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director are considered to be independent directors. The Board of Directors has reviewed a number of factors to evaluate the independence of each of its members. These factors include its members current and historic relationships with the Company and its competitors, suppliers, and customers; the relationships their current and former employers have with the Company; and the relationships between the Company and other companies of which a member of the Companys Board of Directors is a director or executive officer. After evaluating these factors, the Board of Directors has determined that a majority of the members of the Board of Directors, namely, Alan S. Batey, Kevin L. Beebe, Timothy R. Furey, Christine King, David P. McGlade, Robert A. Schriesheim, and Kimberly S. Stevenson, do not have any relationships that would interfere with the exercise of independent judgment in carrying out their responsibilities as directors and that each such director is an independent director of the Company within the meaning of applicable Nasdaq Rules.
### ITEM 14.
KPMGLLP provided audit services to the Company consisting of the annual audit of the Companys 2020 consolidated financial statements contained in the Companys Annual Report on Form10-K and reviews of the financial statements contained in the Companys Quarterly Reports on Form10-Q for fiscal year 2020. The following table summarizes the fees of KPMGLLP billed to the Company for the last two fiscal years.
________________________
(1)Audit fees consist of fees for the audit of our annual financial statements, review of the interim financial statements included in our quarterly reports on Form10-Q, statutory audits and related filings in various foreign locations and audit procedures related to acquisition activity during fiscal years 2020 and 2019. Fiscal year 2020 and 2019 audit fees included fees for services incurred in connection with rendering an opinion under Section404 of the Sarbanes-Oxley Act. Fiscal year 2020 audit fees also included fees for the review of registration statement auditor consents to incorporate by reference prior year financial statement opinions in FormS-8 filings.
(2)Tax fees consist of fees for tax compliance, tax advice, and tax planning services. Tax compliance services, which primarily relate to the review of our U.S. tax returns and certain trade and customs forms, accounted for $104,615 and $160,000 of the total tax fees for fiscal years 2020 and 2019, respectively.
In 2003, the Audit Committee adopted a formal policy concerning approval of audit and non-audit services to be provided to the Company by its independent registered public accounting firm, KPMGLLP. The policy requires that all services provided by KPMGLLP, including audit services and permitted audit-related and non-audit services, be preapproved by the Audit Committee. The Audit Committee preapproved all audit and non-audit services provided by KPMGLLP during fiscal year 2020 and fiscal year 2019.
PART IV
### ITEM 15.
1.
Page number of the Original Filing
### Page 36
Consolidated Statements of Operations for the three years ended October 2, 2020
Page 38
Consolidated Statements of Comprehensive Income for the three years ended October 2, 2020
### Page 39
Consolidated Balance Sheets at October 2, 2020, and September 27, 2019
Page 40
Consolidated Statements of Cash Flows for the three years ended October 2, 2020
### Page 41
Consolidated Statements of Stockholders Equity for the three years ended October 2, 2020
Page 42
Pages 43 through 60
2.
The schedule listed below is filed as part of this Annual Report on Form 10-K:
All required schedule information is included in the Notes to Consolidated Financial Statements or is omitted because it is either not required or not applicable.
3.
The Exhibits listed in the Exhibit Index immediately following Item 16 are filed as a part of this Annual Report on Form 10-K.
(b)Exhibits
The exhibits required by Item 601 of Regulation S-K are filed herewith and incorporated by reference herein. The response to this portion of Item 15 is submitted under Item 15(a)(3).
ITEM 16. FORM 10-K SUMMARY.
None
EXHIBIT INDEX
10.15*
Change in Control / Severance Agreement, dated August 29, 2016, between the Company and Kris Sennesael
10-K
001-05560
10.32
11/22/2016
10.16*
Change in Control / Severance Agreement, dated November 10, 2016, between the Company and Robert J. Terry
10-Q
001-05560
10.2
2/7/2017
10.17*
Change in Control / Severance Agreement, dated November 9, 2016, between the Company and Carlos S. Bori
10-K
001-05560
10.27
11/13/2017
10.18*
Change in Control / Severance Agreement, dated April 13, 2018, between the Company and Kari A. Durham
10-Q
001-05560
10.2
1/24/2020
Subsidiaries of the Company
10-K
001-05560
11/17/2020
23.1
Consent of KPMG LLP
10-K
001-05560
23.1
11/17/2020
31.1
10-K
001-05560
31.1
11/17/2020
31.2
10-K
001-05560
31.2
11/17/2020
31.3
X
31.4
X
32.1
10-K
001-05560
32.1
11/17/2020
32.2
10-K
001-05560
32.2
11/17/2020
101.INS
101.SCH
X
101.CAL
X
101.DEF
X
101.LAB
X
101.PRE
X
* Indicates a management contract or compensatory plan or arrangement.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Our manufacturing facilities.
### Competition
The markets into which we sell our products are highly competitive, and we expect the intensity of competition to continue or increase. We compete with many companies engaged in developing and selling tools for life science research. Many of our competitors have greater financial, operational, sales and marketing resources and more experience in research and development and commercialization than we have. Moreover, our competitors may have greater name recognition than we do, and many offer discounts as a competitive tactic. These competitors and other companies may have developed or could in the future develop new technologies that compete with our products, which could render our products obsolete. We cannot assure you that we will be able to make the enhancements to our technologies necessary to compete successfully with newly emerging technologies. We believe that we offer one of the broadest selections of products to organizations engaged in life science research. We have numerous competitors on a product line basis. We believe that we compete favorably with our competitors on the basis of product performance, including quality, reliability, speed, technical support, price and delivery time.
We compete with several companies that provide instruments for life science research including, Lonza Group Ltd., Becton Dickinson, Eppendorf AG, Kent Scientific Corporation, Razel Scientific Instruments, Inc., Ugo Basile, Danaher Corporation, Bio-Rad Laboratories, Inc., PerkinElmer, Inc., Thermo Fisher Scientific, Inc. Notocord, Emka Technologies and TSE Systems.
We cannot forecast if or when these or other companies may develop competitive products. We expect that other products will compete with our products and potential products based on efficacy, safety, cost and intellectual property positions. While we believe that these will be the primary competitive factors, other factors include, in certain instances, availability of supply, manufacturing, marketing and sales expertise and capability.
### Seasonality
Sales and earnings in our third quarter are usually flat or down from the second quarter primarily because there are a large number of holidays and vacations during such quarter, especially in Europe. Our fourth quarter revenues and earnings are often the highest in any fiscal year compared to the other three quarters, primarily because many of our customers tend to spend budgeted money before their own fiscal year ends.
Intellectual Property
To establish and protect our proprietary technologies and products, we rely on a combination of patent, copyright, trademark and trade secret laws, as well as confidentiality provisions in our contracts. Patents or patent applications cover certain of our new technologies. Most of our more mature product lines are protected by trade names and trade secrets only.
We have implemented a patent strategy designed to provide us with freedom to operate and facilitate commercialization of our current and future products. Our success depends, to a significant degree, upon our ability to develop proprietary products and technologies. We intend to continue to file patent applications as we develop new products and technologies.
Patents provide some degree of protection for our intellectual property. However, the assertion of patent protection involves complex legal and factual determinations and is therefore uncertain. The scope of any of our issued patents may not be sufficiently broad to offer meaningful protection. In addition, our issued patents or patents licensed to us may be successfully challenged, invalidated, circumvented or unenforceable so that our patent rights would not create an effective competitive barrier. Moreover, the laws of some foreign countries may protect our proprietary rights to a greater or lesser extent than the laws of the United States. In addition, the laws governing patentability and the scope of patent coverage continue to evolve, particularly in areas of interest to us. As a result, there can be no assurance that patents will be issued from any of our patent applications or from applications licensed to us. As a result of these factors, our intellectual property positions bear some degree of uncertainty.
We also rely in part on trade secret protection of our intellectual property. We attempt to protect our trade secrets by entering into confidentiality agreements with third parties, employees and consultants. Our employees and consultants also sign agreements requiring that they assign to us their interests in patents and copyrights arising from their work for us. Although many of our United States employees have signed agreements not to compete unfairly with us during their employment and after termination of their employment, through the misuse of confidential information, soliciting employees, soliciting customers and the like, the enforceability of these provisions varies from jurisdiction to jurisdiction and, in some circumstances, they may not be enforceable. In addition, it is possible that these agreements may be breached or invalidated and if so, there may not be an adequate corrective remedy available. Despite the measures we have taken to protect our intellectual property, we cannot assure you that third parties will not independently discover or invent competing technologies or reverse engineer our trade secrets or other technologies. Therefore, the measures we are taking to protect our proprietary rights may not be adequate.
We do not believe that our products infringe on the intellectual property rights of any third party. We cannot assure you, however, that third parties will not claim such infringement by us or our licensors with respect to current or future products. We expect that product developers in our market will increasingly be subject to such claims as the number of products and competitors in our market segment grows and the product functionality in different market segments overlaps. In addition, patents on production and business methods are becoming more common and we expect that more patents will be issued in our technical field. Any such claims, with or without merit, could be time-consuming, result in costly litigation and diversion of managements attention and resources, cause product shipment delays or require us to enter into royalty or licensing agreements. Moreover, such royalty or licensing agreements, if required, may not be on terms advantageous to us, or acceptable at all, which could seriously harm our business or financial condition.
Harvard is a registered trademark of Harvard University. The marks Harvard Apparatus and Harvard Bioscience are being used pursuant to a license agreement entered into in December 2002 between us and Harvard University.
### Government Regulation
We are not subject to direct governmental regulation other than the laws and regulations generally applicable to businesses in the domestic and foreign jurisdictions in which we operate. In particular, our current products are not subject to pre-market approval by the United States Food and Drug Administration (FDA) for use on human clinical patients. In addition, we believe we aremateriallyin compliance with all relevant environmental laws.
Employees
As of December 31, 2020, we employed 459 employees, which includes 428 full-time employees. Some of our employees in Europe have statutory collective bargaining rights. We have never experienced a general work stoppage or strike, and management believes that our relations with our employees are good. Additional information about our employees follows:
### Employees by country:
Employees by business function:
Geographic Area
Financial information regarding geographic areas in which we operate is provided in Note 16 to the Consolidated Financial Statements included in Part IV, Item 15.<|endoftext|>Equity or as an asset or liability. On May 14, 2021 management and the Audit Committee of the Board of Directors of the Company, in response to the SEC Statement and, after discussion with the Companys financial and legal advisors, concluded that the previously issued consolidated financial statements of the Company (formerly known as LF Capital Acquisition Corp. or LF Capital) for the Affected Periods should no longer be relied upon.
issued in connection with the initial public offering of LFAC. The Warrants were presented within equity in LFACs financial statements for the fiscal years ended December 31, 2020 and 2019. After reviewing the SEC Statement, the Company concluded that the exercise and settlement features of the Private Placement Warrants may change with a change in the holder, which precludes the Private Placement Warrants from being considered indexed to the Companys own stock and therefore, precludes the Private Placement Warrants from meeting the scope exception from derivative accounting prescribed by Accounting Standards Codification 815, Derivatives and Hedging (ASC 815). In addition, the Company concluded that the Warrants may be settled in cash upon the occurrence of a tender offer or exchange that involves 50% or more of the Companys common stock, an event that is outside the control of the Company. As such, the Warrants do not meet the conditions to be classified within equity under the SEC Statement and should be presented as a liability. The material terms of the Warrants are more fully described in
In the process of evaluating the Warrants, the Company also considered the Convertible Note which is convertible into warrants identical to the Private Placement Warrants. During the periods presented, the carrying value of the Convertible Note approximated fair value and therefore no change in value was presented in the balance sheets or statements of operations.
The following presents a reconciliation of the balance sheets, statements of operations and cash flows as of and for the years ended
The restatement had no impact on net cash flows from operating, investing, or financing activities.
December31, 2020 balance sheet:
Year ended December 31, 2020 statement of operations:
Year ended December 31, 2020 statement of cash flows:
### December31, 2019 balance sheet:
Year ended December 31, 2019 statement of operations:
Year ended December 31, 2019 statement of cash flows:
Item 9.
None.
### Item 9A. Controls and Procedures (As Restated)
At that time, as required by Rules 13a-15 and 15d-15 under the Exchange Act, our Chief Executive Officer and Chief Financial Officer carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as of December 31, 2020. Based upon their evaluation, our Chief Executive Officer and Chief Financial Officer had concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) were effective. Subsequently, and as a result of the material weakness in our internal control over financial reporting as described below, our Chief Executive Officer and Chief Financial Officer has concluded that our disclosure controls and procedures were not effective as of December 31, 2020 to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in rules and forms of the SEC.
At that time, our management concluded that our internal control over financial reporting was effective as of December 31, 2020. Subsequent to performing that evaluation, our management, including our Chief Executive Officer and Chief Financial Officer, concluded that we did not maintain effective internal control over financial reporting as of December 31, 2020. This was due to a material weakness in internal control over financial reporting related to the accounting for warrants issued in connection with the Initial Public Offering of the Company. Notwithstanding this material weakness, management has concluded that our audited consolidated financial statements included in this Form 10-K/A are fairly stated in all material respects in accordance with U.S.
### Remediation Efforts
Management began implementing controls over the warrants upon identification of the misstatement and has designed and implemented additional controls over the warrant accounting, including review by our internal financial reporting specialists and consultation with third party experts on the accounting for warrants. The material weakness will not be considered fully remediated until all associated controls operate for a sufficient period of time and management has concluded, through testing, that these controls are operating effectively.
There was no change in our internal control over financial reporting that occurred during the fiscal year ended December 31, 2020 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
### Item 9B. Other Information
None.
PART III
Item 10.
The information regarding our directors, executive officers, and certain corporate governance related matters is included in Part III, Item 10 of the Amendment No. 1 on Form 10-K/A filed with the SEC on April 30, 2021 (the Amendment No. 1) and is incorporated herein by reference.
Item 11. Executive Compensation
Information required by this Item is included in Part III, Item 11 of Amendment No.
Item 12.
Information required by this Item is included in Part III, Item 12 of Amendment No.
Item 13.
Information required by this Item is included in Part III, Item 13 of Amendment No.
### Item 14.
Information required by this Item is included in Part III, Item 14 of Amendment No.
PART IV
Item 15. (As Restated)
(a) The following documents are filed as a part of this Annual Report:
1.
2.
The following presents a reconciliation of the balance sheets, statements of operations and cash flows as of and for the quarterly periods ended September 30, 2020, June 30, 2020, March 31, 2020, September 30, 2019, June 30, 2019, and March 31, 2019.
### September 30, 2020 balance sheet (unaudited):
Three months ended September 30, 2020 statement of operations (unaudited):
Nine months ended September30, 2020 statement of operations (unaudited):
Nine months ended September30, 2020 statement of cash flows (unaudited):
### June 30, 2020 balance sheet (unaudited):
Three months ended June 30, 2020 statement of operations (unaudited):
Six months ended June30, 2020 statement of operations (unaudited):
Six months ended June30, 2020 statement of cash flows (unaudited):
### March 30, 2020 balance sheet (unaudited):
Three months ended March 30, 2020 statement of operations (unaudited):
Three months ended March30, 2020 statement of cash flows (unaudited):
### September 30, 2019 balance sheet (unaudited):
Three months ended September 30, 2019 statement of operations (unaudited):
Nine months ended September30, 2019 statement of operations (unaudited):
Nine months ended September30, 2019 statement of cash flows (unaudited):
### June 30, 2019 balance sheet (unaudited):
Three months ended June 30, 2019 statement of operations (unaudited):
Six months ended June30, 2019 statement of operations (unaudited):
Six months ended June30, 2019 statement of cash flows (unaudited):
### March 30, 2019 balance sheet (unaudited):
Three months ended March 30, 2019 statement of operations (unaudited):
Three months ended March30, 2019 statement of cash flows (unaudited):
3. Exhibits
(b) Exhibits
EXHIBIT INDEX
*
Filed herewith.
**
***
Furnished herewith.
^
+
The Company hereby agrees to furnish supplementally a copy of all omitted schedules to the SEC upon request.
### Item 16. Form 10-K Summary
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
To be temporary were reported in other comprehensive earnings net of income taxes. Upon adoption of the ASU, the Company reclassified the cumulative effect of the net unrealized gain on equity securities net of income taxes as of December 31, 2017 of $198,310,000 from accumulated other comprehensive earnings to retained earnings.
PUBLIX SUPER MARKETS, INC.
###
(9)Commitments and Contingencies
(a)Letters of Credit
As of December26, 2020, the Company had outstanding $9,118,000 in trade letters of credit and $3,709,000 in standby letters of credit to support certain purchase obligations.
(b)Litigation
(10)Subsequent Event
On January4, 2021, the Company declared a quarterly dividend on its common stock of $0.32 per share or $221,000,000, payable February1, 2021 to stockholders of record as of the close of business January15, 2021.
(11)Quarterly Information (unaudited)
Following is a summary of the quarterly results of operations for 2020 and 2019. All quarters have 13 weeks.
Following is a summary of the quarterly net earnings and earnings per share excluding the impact of net unrealized gains and losses on equity securities for 2020 and 2019.
Schedule II
PUBLIX SUPER MARKETS, INC.
Years ended December26, 2020, December28, 2019 and December29, 2018
Item9.
### None
Item9A. Controls and Procedures
As of the end of the period covered by this Annual Report, the Company carried out an evaluation, under the supervision and with the participation of the Companys management, including the Companys Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Companys disclosure controls and procedures pursuant to Exchange Act Rule 13a-15. Based upon this evaluation, the Chief Executive Officer and Chief Financial Officer each concluded that the Companys disclosure controls and procedures were effective to provide reasonable assurance that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act isrecorded, processed, summarized and reported within the time periods specified by the SECs rules and forms, and that such information has beenaccumulated and communicated to the Companys management, including the Companys Chief Executive Officer and Chief Financial Officer, in a manner that allows timely decisions regarding required disclosure.
There have been no changes in the Companys internal control over financial reporting identified in connection with the evaluation that occurred during the quarter ended December26, 2020 that have materially affected, or are reasonably likely to materially affect, the internal control over financial reporting.
### Management of the
Company is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) and Rule 15d-15(f) under the Exchange Act).
Management assessed the effectiveness of the Companys internal control over financial reporting as of December26, 2020.
Based on this assessment and these criteria, management believes that the Companys internal control over financial reporting was effective as of December26, 2020.
Item9B. Other Information
None
### PART III
Item10.
Certain information concerning the executive officers of the Company is set forth on the following page. All other information regarding this item is incorporated by reference from the Proxy Statement of the Company (2021Proxy Statement), which the Company intends to file no later than 120 days after its fiscal year end.
The Company has adopted a Code of Ethical Conduct for Financial Managers that applies to the Companys principal executive officer, principal financial officer, principal accounting officer or controller and all persons performing similar functions. A copy of the Code of Ethical Conduct for Financial Managers was filed as Exhibit 14 to the Annual Report on Form 10-K for the year ended December28, 2002.
### Item11. Executive Compensation
Item12.
Item13.
### Item14.
Name
Age
### Business Experience During Last Five Years
Served as
Officerof
### Company
Since
### David E. Bornmann
### Laurie Z. Douglas
Senior Vice President and Chief Information Officer of the Company to January 2019, Senior Vice President, Chief Information Officer and Chief Digital Officer thereafter.
### Randall T. Jones, Sr.
President of the Company to May 2016, Chief Executive Officer and President to January 2019, Chief Executive Officer thereafter.
### Kevin S. Murphy
Vice President of the Company to May 2016, Senior Vice President to January 2019, President thereafter.
### David P. Phillips
Chief Financial Officer and Treasurer of the Company and Trustee of the Committee of Trustees of the ESOP to May 2016, Executive Vice President, Chief Financial Officer and Treasurer and Trustee of the Committee of Trustees of the ESOP thereafter.
### Michael R. Smith
### Officers of the Company
Norman J. Badger
District Manager of Retail Operations of the Company to July 2017, Regional Director of Retail Operations to May 2020, Vice President thereafter.
### Robert S. Balcerak, Jr.
Director of Real Estate Strategy of the Company to April 2017, Vice President thereafter.
### Randolph L. Barber
Director of Industrial Maintenance of the Company to January 2018, Vice President thereafter.
### Robert J. Bechtel
### Marcy P. Benton
Director of Retail Associate Relations of the Company to September 2017, Vice President thereafter.
### Scott E. Brubaker
Vice President of the Company.
### G. Gino DiGrazia
Vice President of the Company.
### John L. Goff, Jr.
Regional Director of Retail Operations of the Company to January 2019, Vice President thereafter.
### Linda S. Hall
Vice President of the Company.
### Douglas A. Harris, Jr.
General Manager of Manufacturing Operations of the Company to March 2018, Director of Manufacturing Operations to May 2019, Vice President thereafter.
### Mark R. Irby
Vice President of the Company.
### Kris Jonczyk
Regional Director of Retail Operations of the Company to January 2020, Vice President thereafter.
### Linda S. Kane
Vice President and Assistant Secretary of the Company.
### Erik J. Katenkamp
Vice President of the Company.
### L. Renee Kelly
Vice President of the Company.
### Michael E. Lester
Director of Warehousing of the Company to January 2019, Vice President thereafter.
### Christopher M. Litz
Vice President of the Company.
### Robert J. McGarrity
Director of Construction of the Company to January 2017, Vice President thereafter.
### Name
Age
Business Experience During Last Five Years
### Served as
Officerof
Company
### Since
Officers of the Company (Continued)
Merriann M. Metz
Assistant General Counsel of the Company to May 2016, Assistant General Counsel and Assistant Secretary to June 2019,Vice President, General Counsel and Secretary thereafter.
### Brad E. Oliver
Business Development Director of Grocery Retail Support of the Company to March 2017, Business Development Director of DSD Products to January 2018, Vice President thereafter.
### Samuel J. Pero
### John F. Provenzano
Executive Director of the National Association of State Treasurers to June2017, Vice President of the Company thereafter.
### William W. Rayburn, IV
Director of Real Estate Assets of the Company to September 2017, Vice President thereafter.
CharlesB.Roskovich,Jr.
Vice President of the Company.
### Dain Rusk
Vice President of Pharmacy Business Development of Albertsons Companies to August 2016, Group Vice President of Pharmacy Operations of Albertsons Companies to June 2018, Vice President of the Company thereafter.
### Marc H. Salm
Vice President of the Company.
### Steven B. Wellslager
Vice President of the Company.
The terms of all officers expire in May 2021 or upon the election of their successors.
### PART IV
Item15.<|endoftext|>Master Lease Agreement, dated May28, 2014, by and among LGP Realty Holdings LP, Lehigh Gas Wholesale Services, Inc. and Lehigh Gas-Ohio, LLC (incorporated by reference to Exhibit10.1 to the Current Report on Form8-K for CrossAmerica Partners LP, filed with the on May30, 2014)
10.26
GP Purchase Agreement, dated as of August6, 2014, by and among Lehigh Gas Corporation, CST GP, LLC and CST Brands, Inc. (incorporated by reference to Exhibit 10.20 to the Annual Report on Form 10-K for CrossAmerica Partners LP, filed with the on February 27, 2015)
10.27
IDR Purchase Agreement, dated as of August6, 2014, by and among The2004 Irrevocable Agreement of Trust of Joseph V. Topper, Sr., The2008 Irrevocable Agreement of Trust of John B. Reilly, Jr., CST Brands Holdings, LLC and CST Brands, Inc. (incorporated by reference to Exhibit 10.21 to the Annual Report on Form 10-K for CrossAmerica Partners LP, filed with the on February 27, 2015)
10.28
Contribution Agreement, dated as of December16, 2014, by and among CST Brands, Inc., CST Services LLC and CrossAmerica Partners LP (incorporated by reference to Exhibit 10.22 to the Annual Report on Form 10-K for CrossAmerica Partners LP, filed with the on February 27, 2015)
10.29
Form of Indemnification Agreement for directors of the Board and certain officers of CrossAmerica GP LLC (incorporated by reference to Exhibit 10.27 to the Quarterly Report on Form 10-Q for CrossAmerica Partners LP, filed with the on August 8, 2017)
10.30
Second Amendment to the Amended and Revised CrossAmerica Partners LP Executive Income Continuity Plan, dated June 26, 2017 (incorporated by reference to Exhibit 10.28 to the Quarterly Report on Form 10-Q for CrossAmerica Partners LP, filed with the on August 8, 2017)
10.31
Award Agreement for Phantom Units for Non-Employee Directors with distribution equivalent rights (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q for CrossAmerica Partners LP, filed with the on November 8, 2017)
10.32
Asset Purchase Agreement dated August 4, 2017, by and among CrossAmerica Partners LP and Jet-Pep, Inc. and other persons listed as signatories in the Purchase Agreement (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q for CrossAmerica Partners LP, filed with the on November 8, 2017)
10.33
Credit Agreement, dated as of April 1, 2019, among CrossAmerica Partners LP, as borrower, Lehigh Gas Wholesale Services, Inc., as borrower, certain domestic subsidiaries of CrossAmerica Partners LP and Lehigh Gas Wholesale Services, Inc. from time to time party thereto, as guarantors, the lenders from time to time party thereto, and Citizens Bank, N.A., as administrative agent, swing line lender and L/C issuer (incorporated by reference to Exhibit 10.1 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on April 2, 2019).
10.34
Amendment to PMPA Franchise Agreement, dated January 1, 2019, by and between Lehigh Gas Wholesale LLC and Lehigh Gas-Ohio, LLC (incorporated by reference to Exhibit 10.2 to the Quarterly Report on 10-Q for CrossAmerica Partners LP, filed with the on May 7, 2019)
10.35
Amendment to Master Lease Agreement, dated January 1, 2019, by and among LGP Realty Holdings LP, Lehigh Gas Wholesale Services, Inc. and Lehigh Gas-Ohio, LLC (incorporated by reference to Exhibit 10.3 to the Quarterly Report on 10-Q for CrossAmerica Partners LP, filed with the on May 7, 2019)
10.36
Sub-Jobber Agreement, dated as of May 21, 2019, between Circle K Stores Inc. and Lehigh Gas Wholesale LLC (incorporated by reference to Exhibit 10.1 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on May 22, 2019) **+
10.37
Second Amended and Restated Omnibus Agreement effective as of April 29, 2019, by and among CrossAmerica Partners LP, CrossAmerica GP LLC, Dunne Manning Inc., CST Services, LLC, Circle K Stores Inc. and Dunne Manning Stores, LLC (incorporated by reference to Exhibit 10.1 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on October 31, 2019) +
10.38
Amendment to Credit Agreement, dated as of November 19, 2019, among CrossAmerica Partners LP and Lehigh Gas Wholesale Services, Inc., as borrowers, the guarantors from time to time party thereto, the lenders from time to time party thereto and Citizens Bank, N.A., as administrative agent, swing line lender and L/C issuer (incorporated by reference to Exhibit 10.1 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on November 21, 2019)
Exhibit No.
Description
10.39
Transitional Omnibus Agreement, effective as of November 19, 2019, by and among CrossAmerica Partners LP, CrossAmerica GP LLC and Circle K Stores Inc. (incorporated by reference to Exhibit 10.2 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on November 21, 2019) **+
10.40
Termination Agreement, dated as of November 19, 2019, by and among CrossAmerica Partners LP, CrossAmerica GP LLC, Dunne Manning Inc., CST Services, LLC, Circle K Stores Inc., Dunne Manning Stores, LLC and Joseph V. Topper, Jr. (incorporated by reference to Exhibit 10.3 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on November 21, 2019)
10.41
Termination Agreement, dated as of November 19, 2019, by and among CST Brands, LLC, Joseph V. Topper, Jr., 2004 Irrevocable Agreement of Trust of Joseph V. Topper, Sr. and Dunne Manning Inc. (incorporated by reference to Exhibit 10.4 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on November 21, 2019)
10.42
Equity Restructuring Agreement, dated January 15, 2020, among CrossAmerica Partners LP, CrossAmerica GP LLC, and Dunne Manning CAP Holdings II LLC (incorporated by reference to Exhibit 10.1 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on January 16, 2020)
10.43
Asset Purchase Agreement, dated January 15, 2020, among CrossAmerica Partners LP, with the sellers signatories thereto, including Dunne Manning Stores LLC, and certain of its affiliates (incorporated by reference to Exhibit 10.2 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on January 16, 2020)
10.44
Omnibus Agreement, effective as of January 1, 2020, by and among CrossAmerica Partners LP, CrossAmerica GP LLC and Dunne Manning Inc. (incorporated by reference to Exhibit 10.1 to the Current Report on 8-K for CrossAmerica Partners LP, filed with the on January 16, 2020) +
21.1
List of Subsidiaries of CrossAmerica Partners LP (incorporated by reference to Exhibit 21.1 to the Annual Report on Form 10-K for CrossAmerica Partners LP, filed with the on February 26, 2020)
23.1 *
Consent of Grant Thornton LLP
31.1 *
Certification of Principal Executive Officer of CrossAmerica GP LLC as required by Rule13a-14(a)of the Securities Exchange Act of1934
31.2 *
Certification of Principal Financial Officer of CrossAmerica GP LLC as required by Rule13a-14(a)of the Securities Exchange Act of1934
32.1*
Certification of Principal Executive Officer of CrossAmerica GP LLC pursuant to18 U.S.C. 1350
32.2*
Certification of Principal Financial Officer of CrossAmerica GP LLC pursuant to18 U.S.C. 1350
101.INS *
XBRL Instance Document
101.SCH *
101.CAL *
101.LAB *
101.PRE *
101.DEF *
*
### Filed herewith
Not considered to be filed for purposes of Section18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section.
+
Non-material schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K.The Partnership hereby undertakes to furnish supplemental copies of any of the omitted schedules upon request by the SEC.
*
*
Certain identified information has been omitted pursuant to Item 601(b)(10) of Regulation S-K. The Partnership hereby undertakes to furnish supplemental copies of the unredacted exhibit upon request by the SEC.
### SIGNATURE
Date: January 21, 2021
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
The SECs rules and forms.
Under the supervision and with the participation of our management, including the Chief Executive Officer and Chief Financial Officer, we have evaluated the effectiveness of our disclosure controls and procedures as required under Rules
13a-15(e) and
15d-15(e) under the Exchange Act as of December31, 2020. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that these disclosure controls and procedures were not effective as of December31, 2020 due to the material weakness in internal control over financial reporting described below.
As of December31, 2020, we have not experienced any significant impact to our internal controls over financial reporting despite the fact that most of our employees who are involved in our financial reporting processes and controls are working remotely due to the
COVID-19 pandemic. We are continually monitoring and assessing the
COVID-19 situation on our internal controls to minimize the impact on their design and operating effectiveness.
Because of inherent limitations, internal control over financial reporting may not prevent or detect misstatements and projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
This Annual Report on Form 10-K does not include a report of managements assessment regarding internal control over financial reporting as allowed by the SEC for reverse acquisitions between an issuer and a private operating company when it is not possible to conduct an assessment of the private operating companys internal control over financial reporting in the period between the consummation date of the reverse acquisition and the date of managements assessment of internal control over financial reporting (see Section 215.02 of the SEC Division of Corporation Finances Regulation S-K Compliance & Disclosure Interpretations). As discussed elsewhere in this Annual Report on Form 10-K, we completed a Business Combination on October 29, 2020 pursuant to which we acquired Legacy Fisker and its subsidiaries.
As of December 31, 2019, we identified material weaknesses in internal control over financial reporting, which relate to: (a) our risk assessment process, including as it relates to fraud risks; (b) general segregation of duties, including the review and approval of journal entries; and (c) precision level to ensure accruals were recorded in the correct period. During 2020, we hired a Chief Accounting Officer with a level of accounting
knowledge and experience in the application of US GAAP commensurate with our financial reporting requirements and the complexity of our operations and transactions. Also, we completed a risk assessment for the 2020 financial statements and designed and implemented controls to review our accruals and ensure segregation of duties exist, including the review and approval of journal entries. These changes in our internal control over financial reporting occurred during the quarter ended December 31, 2020 and have remediated the prior year material weaknesses. Management has concluded that there was a material weakness in our internal controls over financial reporting as of December 31, 2020 as a result of a control related to the evaluation of accounting for complex transactions with potential derivative accounting implications that did not operate effectively in the instance of evaluating potential tender offer scenarios and valuation models associated with the repricing of warrant instruments. This material weakness resulted in the Restatement of our consolidated financial statements as of and for the year ended December31,2020.
Item9B.
Other Information.
### Date of 2021 Annual Meeting
The Company currently plans to hold its 2021 Annual Meeting of Stockholders on June8, 2021. Pursuant to the provisions of the Amended and Restated Bylaws, for any stockholder to propose business (other than pursuant to and in compliance with Exchange Act Rule
14a-8) or make a nomination before the annual meeting, the stockholder must deliver notice to the Secretary of the Company at the principal executive offices of the Company not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder to be timely must be so received no earlier than the close of business on the 120th day before the annual meeting and not later than the later of (x)the close of business on the 90th day before the annual meeting or (y)the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by the Company. Because the Company did not hold an annual meeting last year, the Company has determined that the date by which stockholders must deliver such notice for the purposes of the 2021 Annual Meeting of Stockholders is April10, 2021, which is 10 days after the filing of this Annual Report on Form
10-K.
### Pursuant to Rule
14a-8, for a stockholder to submit a proposal for inclusion in the Companys proxy materials for the 2021 Annual Meeting of Stockholders, the stockholder must comply with the requirements set forth in Rule
14a-8 including with respect to the subject matter of such proposal and must deliver the proposal and all required documentation to the Company a reasonable time before the Company begins to print and send its proxy materials for the meeting. For the purposes of the 2021 Annual Meeting of Stockholders, the Company has determined that April10, 2021 is a reasonable time before the Company plans to begin printing and mailing its proxy materials. The public announcement of an adjournment or postponement of the 2021 Annual Meeting date will not commence a new time period (or extend any time period) for giving such notice under the Amended and Restated Bylaws or submitting a proposal pursuant to
Rule14a-8.
### Executive Officers
On March18, 2021, the Board of Directors approved, effective as of March15, 2021, at the request of Dr.Geeta Gupta, the Companys Chief Financial Officer, an 82% decrease in Dr.Guptas annual base salary from $325,000 to $58,240 which is Californias minimum annual wage.
On March22, 2021, the Board of Directors appointed the Companys Chief Financial Officer, Dr.Geeta Gupta, as Chief Operating Officer of the Company, effective immediately. Dr.Gupta, age46, has served as Chief Financial Officer of the Company since October2020 and prior to this, served as Chief Financial Officer of Legacy Fisker from September 2016 to October 2020. In this role, Dr.Gupta will serve as the Companys principal operating officer as well as the Companys principal financial officer.
### PARTIII
Item10.
Item11.
### Executive Compensation.
Item12.
### Item13.
Item14.
### PARTIV
Item15.
1. Financial Statements
See in Part II Item 8 of this Annual Report on Form
10-K.
2.
3. Exhibits
The documents listed in the Exhibit Index are incorporated by reference or are filed with this report, in each case as indicated therein (numbered in accordance with Item 601 of Regulation
### S-K).
The following list is a list of exhibits filed as part of this
###
*
The schedules to this Exhibit have been omitted in accordance with Regulation
S-K
Item 601(b)(2). Fisker Inc. agrees to furnish supplementally a copy of any omitted schedule to the Securities and Exchange Commission upon its request.
**
### Furnished and not filed.
Indicates a management contract or compensatory plan, contract or arrangement.
Item16.
Form
10-K
### Summary
None.
Index to Financial Statements<|endoftext|>The over-allotmentoption is not exercised by the underwriters in full. In connection with the underwriters full exercise of their over-allotment option on November 9, 2020 and November 12, 2020,the 375,000 shares were no longer subject to forfeiture.
Our Sponsor has agreed not to transfer, assign or sell their Founder Shares until the earlier of (i)one year after the date of the consummation of the initial business combination or (ii)the date on which the closing price of the Companys shares of common stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-tradingday period commencing after the initial business combination, or earlier, in either case, if, subsequent to the initial business combination, the Company consummates a subsequent liquidation, merger, stock exchange or other similar transaction which results in all of its stockholders having the right to exchange their shares of common stock for cash, securities or other property.
In September2020, the Company issued an unsecured promissory note to our Sponsor, pursuant to which the Company may borrow up to an aggregate principal amount of $200,000 to be used for a portion of the expenses of the IPO. This loan is non-interestbearing, unsecured and due at the earlier of December31, 2020 or the closing of the IPO. As of September 30, 2020, the Company had drawn down $100,000 under the promissory notes. The borrowings outstanding under the notes in the amount of $120,000 were repaid on November 2, 2020.
Related Party Loans
In order to finance transaction costs in connection with an intended initial business combination, our Sponsor or an affiliate of our Sponsor or certain of the Companys officers and directors may, but are not obligated to, provide non-interest-bearing loans to the Company as may be required (the Working Capital Loans). If the Company completes an initial business combination, the Company would repay the Working Capital Loans out of the proceeds of the Trust Account. As of December 31, 2020, no such Working Capital Loans were outstanding.
The Company will have up to 12months from the closing of the IPO to consummate an initial business combination. However, if the Company anticipates that it may not be able to consummate its initial business combination within 12months, the Company may, by resolution of its board if requested by our Sponsor, extend the period of time to consummate an initial business combination up to two times, each by an additional three months (for a total of up to 18months to complete an initial business combination), subject to our Sponsor depositing additional funds into the Trust Account. The Companys public stockholders will not be entitled to vote or redeem their shares in connection with any such extension. Pursuant to the terms of the Companys amended and restated certificate of incorporation and the trust agreement entered into between the Company and Continental Stock Transfer & Trust Company, in order for any such extension, our Sponsor or its affiliates or designees, upon five days advance notice prior to the applicable deadline, must deposit into the Trust Account $1,000,000, or $1,150,000 if the underwriters over-allotmentoption is exercised in full ($0.10 per unit in either case, up to an aggregate of $2,000,000 or $2,300,000 if the underwriters over-allotmentoption is exercised in full) on or prior to the date of the applicable deadline, for each three month extension. Any such payments would be made in the form of a non-interest-bearing loan. Our Sponsor and its affiliates or designees are not obligated to fund the Trust Account to extend the time for the Company to complete its initial business combination. If the Company is unable to consummate an initial business combination within such time period, it will redeem 100% of its issued and outstanding Public Shares for a pro rata portion of the funds held in the Trust Account, equal to the aggregate amount then on deposit in the Trust Account including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its taxes (less up to $100,000 of interest to pay dissolution expenses), divided by the number of then outstanding Public Shares, subject to applicable law, and then seek to dissolve and liquidate.
Administrative Service Fee
The Company has agreed to pay an affiliate of our Sponsor, commencing on October 29, 2020, a total of $10,000 per month for office space, utilities and secretarial and administrative support.
### Related Party Policy
We have a code of ethics requiring us to avoid, wherever possible, all conflicts of interests, except under guidelines or resolutions approved by our board of directors (or the appropriate committee of our board) or as disclosed in our public filings with the SEC.
Furthermore, no finders fees, reimbursements, consulting fee, monies in respect of any payment of a loan or other compensation will be paid by us to our Sponsor, officers, directors or any affiliate of our Sponsor, officers, directors prior to, for services rendered to us prior to, or in connection with any services rendered in order to effectuate, the consummation of our initial business combination (regardless of the type of transaction that it is). However, the following payments will be made to our Sponsor, officers, directors or our or their affiliates, none of which will be made from the proceeds of the Initial Public Offering held in the Trust Account prior to the completion of our initial business combination: repayment of up to an aggregate of $200,000 in loans made to us by our Sponsor to cover offering-relatedand organizational expenses; payment to an affiliate of our Sponsor of $10,000 per month for office space, utilities and secretarial and administrative support beginning on October 29, 2020; we may pay our Sponsor or its affiliates, partners or employees, a fee for financial advisory services rendered in connection with our identification, negotiation and consummation of our initial business combination; the amount of any fee we pay our Sponsor or its affiliates, partners or employees, will be based upon the prevailing market for similar services for such transactions at such time, and will be subject to the review of our audit committee pursuant to the audit committees policies and procedures relating to transactions that may present conflicts of interest; and repayment of non-interestbearing loans which may be made by our Sponsor or an affiliate of our Sponsor or certain of our officers and directors to finance transaction costs in connection with an intended initial business combination, the terms of which have not been determined nor have any written agreements been executed with respect thereto.
### Director Independence
NYSE American listing standards require that a majority of our board of directors be independent. Benjamin Garrett, Mr. Frank A. Del Rio, Mr. Perry Weitz and Dean Kate Walsh are independent directors as defined in the NYSE American listing standards and applicable SEC rules.
Item 14.
### Audit Fees
The aggregate fees billed by Marcum for professional services rendered for the audit of our annual financial statements, review of the financial information included in our Forms 10-Q for the respective periods and other required filings with the SEC for the period from August20, 2020 (inception) through December 31, 2020 totaled $66,950.
Audit-Related Fees.
We did not pay Marcum for consultations concerning financial accounting and reporting standards for the period from August20, 2020 (inception) through December 31, 2020.
### Tax Fees
We did not pay Marcum for tax planning and tax advice for the period from August20, 2020 (inception) through December 31, 2020.
All Other Fees
We did not pay Marcum for other services for the period from August20, 2020 (inception) through December 31, 2020.
### PART IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
The Company and Loke Che Chan Gilbert (7)
10.12
Employment Contract dated July 28, 2017, by and between the Company and Lee Chong Kuang (7)
10.13
Independent Director Agreement, dated October 18, 2015, by and between the Company and Chuchottaworn Srirat (7)
10.14
Independent Director Agreement, dated March 14, 2016, by and between the Company and Shum Albert (7)
10.15
Independent Director Agreement, dated March 14, 2016, by and between the Company and Hee Chee Keong (7)
10.16
Placement Agency Agreement, dated May 31, 2018 (11)
10.17
Subscription Agreement and Supplemental Agreement dated as of July 18, 2018 (12)
10.18
Form of Loan Agreement dated July 17, 2018 between the Company and Shenzhen Rong Jin Jia Cheng Investment Limited (13)
10.19
Independent Director Agreement, dated May 8, 2019, by and between the Company and Louis Ramesh Ruben (14)
10.20
Independent Director Agreement, dated October 1, 2019, by and between the Company and Brent Lewis Glendening (15)
10.21
Independent Director Agreement, dated October 16, 2019, by and between the Company and Christophe Philippe Roland Bringuier (16)
10.22
Consulting and Representation Agreement dated March 18, 2020 between the Company and Corporate Ads, LLC*
10.23
Consulting Services Agreement dated May 1, 2020 between the Company and Daniel McKinney*
10.24
Purchase and Sale Agreement of Millennium Sapphire dated May 27, 2020 between the Company and Daniel McKinney (18) (19)
10.25
Purchase and Sale Agreement dated June 29, 2020 between the Company and Millennium Fine Art Inc.*
10.26
Form of Acquisition Agreement of Ata Plus Sdn. Bhd. dated July 8, 2020 (19)
10.27
Employment Contract dated July 28, 2020, by and between Greenpro Holding Limited and Loke Che Chan Gilbert*
10.28
Employment Contract dated July 28, 2020, by and between Greenpro Holding Limited and Lee Chong Kuang*
10.29
Subscription Agreement dated August 30, 2020 between Greenpro Venture Capital Limited and Global Leaders Corporation*
10.30
Consulting Agreement dated September 30, 2020 between the Company and Dennis Burns*
10.31
Subscription Agreement dated October 9, 2020 between the Company and AG Opportunities Fund SPC -AG Pre-IPO Fund SP1*
10.32
Subscription Agreement dated October 9, 2020 between the Company and Seah Kok Wah (20)
10.33
Form of Securities Purchase Agreement dated October 13, 2020 between the Company and FirstFire Global Opportunities Fund, LLC (19)
10.34
Form of Convertible Note issued to FirstFire Global Opportunities Fund, LLC dated October 13, 2020 (19)
10.35
Form of Securities Purchase Agreement dated October 13, 2020 between the Company and Granite Global Value Investments Ltd. (19)
10.36
Form of Convertible Note issued to Granite Global Value Investments Ltd. dated October 13, 2020 (19)
10.37
Form of Securities Purchase Agreement dated October 13, 2020 between the Company and Streeterville Capital, LLC (19)
10.38
Form of Convertible Note issued to Streeterville Capital, LLC dated October 13, 2020 (19)
10.39
Stock Purchase and Option Agreement of First Bullion Holdings Inc. dated October 19, 2020. (21)
10.40
Acquisition Agreement dated November 1, 2020. between the Company, Ms. Lee Yuet Lye and Mr. Chia Min Kiat (22)
10.41
Subscription Agreement dated December 16, 2020 between the Company and Wong Wai Hing Lena*
10.42
Subscription Agreement dated December 21, 2020 between Greenpro Venture Capital Limited and Adventure Air Race Company Limited*
10.43
Subscription Agreement dated December 22, 2020 between Greenpro Venture Capital Limited and Adventure Air Race Company Limited*
10.44
Subscription Agreement dated December 29, 2020 between Greenpro Venture Capital Limited and Pentaip Technology Inc.*
10.45
Securities Purchase Agreement dated January 8, 2021 between the Company and Streeterville Capital, LLC*
10.46
Convertible Note issued to Streeterville Capital, LLC dated January 8, 2021*
10.47
Form of Securities Purchase Agreement dated February 11, 2021 between the Company and Streeterville Capital, LLC*
10.48
Form of Convertible Note issued to Streeterville Capital, LLC dated February 11, 2021*
10.49
Form of Amendment to Convertible Promissory Note dated February 21, 2021 between the Company and Streeterville Capital, LLC (24)
10.50
Form of Subscription Agreement between Greenpro Resources Limited and Innovest Energy Fund dated February 11, 2021. (23)
10.51
Form of Additional 8% Acquisition of First Bullion Holdings Inc. dated February 17, 2021 (25)
14.1
Code of Ethics (17)
21.1
List of Subsidiaries (17)
31.1
31.2
Rule 13(a)-14(a)/15(d)-14(a) Certification of principal financial officer *
32.1
32.2
Section 1350 Certification of principal financial officer and principal accounting officer*
99.1
Charter of the Audit Committee (17)
99.2
Audit Committee Pre-Approval Procedures (17)
99.3
Charter of the Compensation Committee (17)
99.4
Charter of the Corporate Governance and Nominating Committee (17)
* Filed herewith
(1) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with SEC on May 13, 2015.
(2) Previously filed as an exhibit to the Companys Quarterly Report on Form 10-Q filed with the SEC on May 16, 2016.
(3) Previously filed as an exhibit to the Companys Annual Report on Form 10-K filed with the SEC on March 30, 2016.
(4) Previously filed as an exhibit to the Companys Quarterly Report on Form 10-Q filed with the SEC on August 15, 2016.
(5) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on April 25, 2017.
(6) Previously filed as an exhibit to the Companys Current Report on Form 8-K/A filed with the SEC on July 25, 2017.
(7) Previously filed as an exhibit to the Companys registration statement on Form S-1 filed with the SEC on August 2, 2017.
(8) Previously filed as an exhibit to the Companys registration statement on Form S-1 filed with the SEC on January 27, 2014.
(9) Previously filed as an exhibit to the Companys registration statement on Form S-1/A filed with the SEC on September 6, 2017.
(10) Previously filed as an exhibit to the Companys Annual Report on Form 10-K filed with the SEC on March 27, 2017.
(11) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on June 6, 2018.
(12) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on July 18, 2018.
(13) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on December 10, 2018.
(14) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on May 10, 2019.
(15) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on October 8, 2019.
(16) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on October 16, 2019.
(17) Previously filed as an exhibit to the Companys Annual Report on Form 10-K filed with the SEC on March 30, 2020.
(18) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on June 1, 2020.
(19) Previously filed as an exhibit to the Companys Quarterly Report on Form 10-Q filed with the SEC on November 16, 2020.
(20) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on October 16, 2020.
(21) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on October 23, 2020.
(22) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on November 2, 2020.
(23) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on February 16, 2021.
(24) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on February 23, 2021.
(25) Previously filed as an exhibit to the Companys Current Report on Form 8-K filed with the SEC on February 26, 2021.
### ITEM 16. FORM 10-K SUMMARY
None.<|endoftext|>Target businesses to examine their operations.
After completion of our initial business combination, members of our management team who remain with us may be paid employment, consulting, management or other fees from the combined company with any and all amounts being fully disclosed to stockholders, to the extent then known, in the proxy solicitation materials furnished to our stockholders. The amount of such compensation may not be known at the time of a stockholder meeting held to consider an initial business combination, as it will be up to the directors of the post-combination business to determine executive and director compensation. In this event, such compensation will be publicly disclosed at the time of its determination in an Exchange Act filing such as Current Report on Form8-K, as required by the SEC.
Item12.
The following table sets forth information regarding the beneficial ownership of our shares of ordinary shares as of December31, 2020 by: each person known by us to be the beneficial owner of more than 5% of our outstanding shares of ordinary shares;
The following table does not reflect beneficial ownership of the warrants included in the units offered in our initial public offering or purchased by our sponsor in connection with our initial public offering as these warrants are not exercisable and these rights are not convertible within 60 days of December31, 2020 or the date of this Form10-K
/A.
*Less than one percent
(1)Unless otherwise indicated, the business address of each of the individuals is 505 Eshan Road, Floor 6, Pudong New District, Shanghai, 200120.
(2)Represents 1,000,000 founder ordinary shares and 260,000 private placement ordinary shares held by Cynthia Management Corporation, our sponsor. The ordinary shares are deemed held and owned beneficially by Jinling Liu, our Chairman, who, as the majority shareholder of our sponsor, and Jianmin Yu, the sole director of our sponsor, have voting and dispositive power of the ordinary shares.
(3)Based upon 5,260,000 ordinary shares outstanding. Includes the 260,000 private placement units (and the component parts) purchased by our sponsor simultaneously with the consummation of our initial public offering.
(4)Such individual does not beneficially own any of our ordinary shares. However, such individual has a pecuniary interest in our ordinary shares through his ownership of shares of our sponsor.
Our founders beneficially own approximately 24% of the issued and outstanding ordinary shares. Because of the ownership block held by our founders, officers and directors, such individuals may be able to effectively exercise influence over all matters requiring approval by our stockholders, including the election of directors and approval of significant corporate transactions other than approval of our initial business combination.
Our sponsor, officers and directors are deemed to be our promoters as such term is defined under the federal securities laws.
Section16(a)of the Securities Exchange Act of 1934, as amended, or the Exchange Act, requires our executive officers, directors, and persons who beneficially own more than 10% of a registered class of our equity securities to file with the Securities and Exchange Commission initial reports of ownership and reports of changes in ownership of our ordinary shares and other equity securities. These executive officers, directors, and greater than 10% beneficial owners are required by SEC regulation to furnish us with copies of all Section16(a)forms filed by such reporting persons.
Based solely on our review of such forms furnished to us and written representations from certain reporting persons, we believe that, during the fiscal year ended December31, 2020, our directors, executive officers, and ten percent stockholders complied with all Section16(a)filing requirements,
Item13. Certain Relationships, and Related Transactions and Director Independence
In February2019, our sponsor purchased 1,150,000 founder shares for an aggregate purchase price of $25,000, or approximately $0.02 per share. An aggregate of 150,000 ordinary shares were forfeited. Our sponsor owns approximately 20% of our issued and outstanding ordinary shares as of December31, 2020.
Our sponsor purchased an aggregate of 260,000 private placement units at a price of $10.00 per unit in a private placement that was completed simultaneously with the closing of our initial public offering. Each unit consists of one private placement share and one private placement warrant. Each private placement warrant entitles the holder upon exercise to purchase one-half of one ordinary share at a price of $11.50 per whole share, subject to adjustment as provided herein. The private placement units (including the underlying securities) may not, subject to certain limited exceptions, be transferred, assigned or sold by it until 30 days after the completion of our initial business combination.
In connection with the completion of our initial public offering, we entered into an Administrative Services Agreement with our sponsor pursuant to which we will pay a total of $10,000 per month for office space, administrative and support services to such affiliate. Accordingly, in the event the consummation of our initial business combination takes the maximum 21 months, our sponsor will be paid a total of $210,000 ($10,000 per month) for office space, administrative and support services and will be entitled to be reimbursed for any out-of-pocket expenses.
Our sponsor has agreed to loan us up to $500,000 to be used for a portion of the expenses of our initial public offering. As of the date of closing our initial public offering, we had borrowed $349,590 under the promissory note with our sponsor. These loans are non-interest bearing, unsecured and were originally due and payable in connection with our public offering (July28, 2020); however, the terms of payment were amended to provide upon payment upon combination of our business combination.
Up to $1,500,000 of such loans may be convertible into units at a price of $10.00 per unit (which, for example, would result in the holders being issued 150,000 ordinary shares if $1,500,000 of notes were so converted as well as 150,000 warrants to purchase 75,000 shares) at the option of the lender. The units would be identical to the placement units issued to the initial holder.
The holders of the founder shares, private placement units, the shares underlying the warrants underlying the unit purchase option issued to the underwriters of our initial public offering, and units that may be issued on conversion of working capital loans (and any securities underlying the private placement units and the working capital loans) are entitled to registration rights pursuant to a registration rights agreement signed on the effective date of our initial public offering requiring us to register such securities for resale. In addition, the holders have certain piggy-back registration rights with respect to registration statements filed subsequent to our completion of our initial business combination and rights to require us to register for resale such securities pursuant to Rule415 under the Securities Act.
### Director Independence
### Item 14
### Audit Fees
The aggregate fees billed by Marcum for professional services rendered for the audit of our annual financial statements, review of the financial information included in our Forms 10-Q for the respective periods and other required filings with the SEC for the year ended December31, 2020 and 2019 totaled $84,500 and $31,000, respectively.
Audit-Related Fees.
We did not pay Marcum for consultations concerning financial accounting and reporting standards for the year ended December31, 2020 and 2019.
### Tax Fees
We did not pay Marcum for tax planning and tax advice for the year ended December31, 2020 and 2019.
All Other Fees
We did not pay Marcum for other services for the year ended December31, 2020 and 2019.
### Pre-Approval Policy
PARTIV
Item 15
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Of Class B common stock of the Company and (y) an option to purchase an additional 550,000 shares of Class B common stock of the Company. The exercise of such option is subject to certain conditions, including that the Company has consummated an equity offering, capital raise or such other offering such that the issuance of any shares of Class B common stock of the Company covered by Mr. Ludwigs option would not be deemed Excess Shares as that term is defined in the certificate of incorporation of the Company. The exercise price is $0.00. The Company has not recognized any share-based compensation associated with this award based on the contingent performance condition which is not probable of occurring.
In June of 2017, the Board of Directors notified Mr. Ludwig that due to financial constraints on the company that he would no longer be receiving his salary.
On January 6, 2017, each of the, non-management directors of the Company, and a former non-management director of the Company received an aggregate of 450,000 shares of Class B common stock of the Company as directors fees for the years ended December 31, 2016 and 2015, of which 90,000 shares were issued to the current directors for their services in connection with the FC REIT transaction. The non-management Directors received no compensation for their services during 2020, 2019, 2018.
ITEM
12.
As of September 7, 2021, there were 442,533 shares of Class A common stock and 4,746,147 shares of Class B common stock outstanding.
The following tables set forth certain information regarding our Class A and Class B common stock beneficially owned as of September 7, 2021, for (i) each stockholder known to be the beneficial owner of 5% or more of any class of our outstanding shares of common stock, (ii) each named executive officer and director, and (iii) all executive officers and directors as a group. Unless otherwise indicated, voting and investment power relating to the shares shown in the table for our directors and executive officers is exercised solely by the beneficial owner or shared by the owner and the owners spouse or children.
For purposes of the table, a person or group of persons is deemed to have beneficial ownership of any shares of common stock that such person has the right to acquire within 60 days of September 7, 2021.
For purposes of computing the percentage of outstanding shares of our common stock held by each person or group of persons named above, any shares that such person or persons has the right to acquire within 60 days of September 7, 2021 is deemed to be outstanding, but is not deemed to be outstanding for the purpose of computing the percentage ownership of any other person.
The following table sets forth information about persons, who, to our knowledge, as of September 7, 2021, beneficially owned more than 5% of any class of our outstanding shares of common stock determined in accordance with Rule 13d-3 of the Securities Exchange Act of 1934.
(1)
Includes 73,400 shares owned by Mr. Grays wife for which he shares voting power and 20,000 shares held in custodial accounts for his children which he has the right to vote but in which he disclaims any primary interest.
Except as set forth in the notes to the table, each of the owners of the shares set forth in the table has the sole voting and dispositive power over such shares except that any such owner has no voting or dispositive power over shares the beneficial ownership of which is disclaimed.
The Companys management knows of no other persons owning beneficially more than 5% of either the outstanding ClassA common stock or the outstanding ClassB common stock of the Company.
BBJ Family Irrevocable Trust owns 226,013 shares of Class A common stock and 250,000 shares of Class B common stock. The trust was formed in September 2009 by Mr. Jekogian for the benefit of family members including Mr. Jekogians parents, grandparents, wife, sister, children, nieces and nephews. The trustee of the trust is Mr. Jekogians father and Mr. Jekogian remains the protector of the Trust. There is no agreement between the trustee of the trust and Mr. Jekogian as to how the shares of Class A common stock acquired by the trust will be voted or otherwise dealt with the ownership restrictions in our certificate of incorporation define ownership under both Subchapter M, Part II of the Code and Rule 13d-3 under the Securities Exchange Act of 1934. The BBJ Irrevocable Family Trust has entered into agreements with us pursuant to which, among other things, they acknowledge that they are not entitled to vote or transfer any excess shares and that if they hold such shares, they hold them in trust for the Company.
The following table sets forth certain information as of December 31, 2020, relating to the Companys equity compensation plans:
ITEM
13.
### Independent Directors
The Board has determined that Jeffrey Joseph, is an independent director pursuant to Section803A(2) of the NYSE MKT LLC Company Guide.
Conflicts of Interest and Fiduciary Duties
Conflicts of interest may arise as a result of the relationship between Mr. Jekogian, who is Chairman of the Companys board of directors and chief executive officer of the Company, and Signature, of which Mr. Jekogian is the owner and chief executive officer. Mr. Ludwig, a director, our president, chief operating officer and principal financial officer, also provides consulting services to and receives compensation from Signature. All of our directors and officers have fiduciary duties to manage the Company in a manner beneficial to our stockholders. At the same time, Mr. Jekogian and Mr. Ludwig may also owe fiduciary duties to Signature. The independent director of the Board has reviewed, and will continue to review, all transactions between the Company and Signature and the activities of Mr. Jekogian and Mr. Ludwig.
The Companys Articles of Incorporation provide that no director, officer of or employee to the corporation past, present or future, shall be personally liable to the corporation or any of its shareholders for damages for breach of fiduciary duty as a director or officer; provided, however, that the liability of a director for acts or omissions which involve intentional misconduct, fraud or knowing violation of law and for the payment of dividends is not so eliminated. The corporation shall advance or reimburse reasonable expenses incurred by an affected officer, director or employee without regard to the above limitations, or any other limitation which may hereafter be enacted to the extent such limitation may be disregarded if authorized by the Articles of Incorporation.
ITEM 14.
Audit Fees
The following table presents fees billed for professional services rendered by Baker Tilly US LLP (Baker Tilly) for the audit of the Companys financial statements for the fiscal years ended December31, 2020 , December 31, 2019, December 31, 2018, and December 31, 2017 and fees for other services rendered by Baker Tilly during those periods.
(a)
Fees for audit services consisted of the audit of the Companys annual consolidated financial statements and review of the Companys quarterly financial statements.
Policy on Pre-Approval of Independent Registered Public Accounting Firm
The Audit Committee has established a policy regarding pre-approval of all audit and non-audit services provided by our Companys independent registered public accounting firm.
On an on-going basis, management communicates specific projects and categories of service for which the advance approval of the Audit Committee is requested. The Audit Committee reviews these requests and advises management if the Audit Committee approves the engagement of the independent registered public accounting firm. The Audit Committee may also delegate the ability to pre-approve audit and permitted non-audit services to one or more of its members, provided that any pre-approvals are reported to the Audit Committee at its next regularly scheduled meeting.
PART IV.
ITEM 15.
SUBJECT TO FUTHER REVIEW FOR INCLUSION<|endoftext|>Of December8, 2020, by and among the Company, Tenzing LLC and the shareholder party thereto (filed as Exhibit10.11 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.12
Formof Registration Rights Agreement, dated as of December14, 2020, by and between the Company and the shareholder party thereto (filed as Exhibit10.12 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.13 #
Reviva Pharmaceuticals Holdings,Inc. 2020 Equity Incentive Plan (filed as Exhibit10.13 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.14 #
Formof Incentive Stock Option Grant Agreement (filed as Exhibit10.14 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.15 #
Formof Nonqualified Stock Option Grant Agreement (filed as Exhibit10.15 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.16 #
Reviva Pharmaceuticals,Inc. 2006 Equity Incentive Plan (filed as Exhibit10.16 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.17 #
First Amendment to Reviva Pharmaceuticals,Inc. 2006 Equity Incentive Plan (filed as Exhibit10.17 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.18 #
Formof Assumed Option (filed as Exhibit10.18 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.19
Formof Note Purchase Agreement, dated as of August27, 2020, by and between the Company and the investors party thereto (filed as Exhibit10.19 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.20
Formof Note Purchase Agreement, dated as of August29, 2020, by and between the Company and the investors party thereto (filed as Exhibit10.20 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.21
Letter Agreement, dated as of December14, 2020, by and between the Company, Maxim Group LLC and Maxim Partners LLC (filed as Exhibit10.21 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.22
Letter Agreement, dated August20, 2018, by and among the Company, its officers, its directors and the Sponsor (filed as Exhibit10.3 to the Companys Form8-K filed on August24, 2018, and incorporated herein by reference).
10.23
Registration Rights Agreement, dated as of August20, 2018, by and among Tenzing, the Sponsor, Maxim and the holders party thereto (filed as Exhibit10.2 to the Companys Form8-K filed on August24, 2018, and incorporated herein by reference).
10.24
Escrow Agreement, dated as of December14, 2020, by and among the Company, Tenzing LLC, Laxminarayan Bhat and Continental Stock Transfer& Trust Company (filed as Exhibit10.24 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
10.25
Formof Backstop Agreement, by and among Tenzing Acquisition Corp., Reviva Pharmaceuticals,Inc., and the Investor named therein (filed as exhibit 10.1 to the Companys Form8-K filed on October21, 2020, and incorporated herein by reference).
10.26
Letter Agreement, dated August20, 2018, by and among Tenzing, its officers, its directors and the Sponsor (incorporated by reference to Exhibit10.3 of Tenzings Form8-K (File No.001-38634), filed with the SEC on August24, 2018).
10.27
Investment Management Trust Agreement, dated August20, 2018, by and between Tenzing and Continental Stock Transfer& Trust Company, as trustee (incorporated by reference to Exhibit10.1 of Tenzings Form8-K (File No.001-38634), filed with the SEC on August24, 2018).
10.28
Securities Purchase Agreement between Tenzing and Tenzing LLC (incorporated by reference to Exhibit 10.4 of Tenzing's Form S-1 (File No. 333-226263), filed with the SEC on July 20, 2018).
10.29
Form of Amended and Restated Unit Purchase Agreement between Tenzing and the Sponsor (incorporated by reference to Exhibit 10.4 of Tenzings Form S-1 (File No. 333-226263), filed with the SEC on August 16, 2018).
10.30
Formof Unit Purchase Agreement between Tenzing and Maxim Group LLC (incorporated by reference to Exhibit10.7 of Tenzings FormS-1 (File No.333-226263), filed with the SEC on August16, 2018).
10.31
Promissory Note, dated February10, 2020, issued by Tenzing Acquisition Corp. to Tenzing LLC (filed as exhibit 10.1 to the Companys Form8-K filed on February14, 2020, and incorporated herein by reference).
10.32
Promissory Note, dated May21, 2020, issued by Tenzing Acquisition Corp. to Tenzing LLC (filed as exhibit 10.1 to the Companys Form8-K filed on May21, 2020, and incorporated herein by reference).
10.33
Promissory Note, dated July24, 2020, issued by Tenzing Acquisition Corp. to Tenzing LLC (filed as exhibit 10.1 to the Companys Form8-K filed on July29, 2020, and incorporated herein by reference).
10.34
Promissory Note, dated August18, 2020, issued by Tenzing Acquisition Corp. to Tenzing LLC (filed as exhibit 10.1 to the Companys Form8-K filed on August18, 2020, and incorporated herein by reference).
10.35
Promissory Note, dated September24, 2020, issued by Tenzing Acquisition Corp. to Tenzing LLC (filed as exhibit 10.1 to the Companys Form8-K filed on September25, 2020, and incorporated herein by reference).
10.36
Promissory Note, dated November12, 2020, issued by Tenzing Acquisition Corp. to Tenzing LLC (filed as exhibit 10.1 to the Companys Form8-K filed onNovember13, 2020, and incorporated herein by reference).
21.1
List of Subsidiaries of the Company (filed as Exhibit21.1 to the Companys Current Report on Form8-K as filed on December18, 2020 and incorporated herein by reference).
24.1
Power of Attorney (incorporated by reference to the Company s Annual Report on Form 10-K filed with the SEC on March 22, 2021).
31.1*
Certification of Chief Executive Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a)
31.2*
Certification of Chief Financial Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a)
32.1**
Section 1350 (filed as exhibit 32.1 to the Company s Annual Report on Form 10-K filed with the SEC on March 22, 2021).
101.INS
XBRL Instance Document (filed as exhibit 101.INS to the Companys Annual Report on Form 10-K filed with the SEC on March 22, 2021).
101.SCH
XBRL Taxonomy Extension Schema Document (filed as exhibit 101.SCH to the Companys Annual Report on Form 10-K filed with the SEC on March 22, 2021).
101.CAL
XBRL Taxonomy Extension Calculation Linkbase Document (filed as exhibit 101.CAL to the Companys Annual Report on Form 10-K filed with the SEC on March 22, 2021).
101.DEF
XBRL Taxonomy Extension Definition Linkbase Document (filed as exhibit 101.DEF to the Companys Annual Report on Form 10-K filed with the SEC on March 22, 2021).
101.LAB
XBRL Taxonomy Extension Label Linkbase Document (filed as exhibit 101.LAB to the Companys Annual Report on Form 10-K filed with the SEC on March 22, 2021).
101.PRE
XBRL Taxonomy Extension Presentation Linkbase Document (filed as exhibit 101.PRE to the Companys Annual Report on Form 10-K filed with the SEC on March 22, 2021).
*
Filed herewith.
**
The certifications furnished in Exhibit 32.1 (included as exhibit 32.1 to the Companys Annual Report on Form 10-K filed with the SEC on March 22, 2021) are deemed to accompany the Annual Report on Form 10-K filed with the SEC on March 22, 2021 and will not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, except to the extent that the registrant specifically incorporates it by reference.
+
The exhibits and schedules to this Exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K.
++
Certain information in this exhibit has been omitted pursuant to Item 601(a)(6) of Regulation S-K.
#
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
### EXPLANATORY NOTE
This Amendment No. 3 to the Annual Report on Form 10-K (this Amended Annual Report) amends the Annual Report on Form 10-K of Toga Limited (the Company) for the year ended July 31, 2019 (the Original Form 10-K), filed on November 14, 2019 with the Securities and Exchange Commission (the SEC), that Amendment No. 1 to the Companys Annual Report on Form 10-K for the year ended July 31, 2019, filed on June 12, 2020 with the SEC (Amendment No. 1) to reflect an amendment to Part II, Item 9A. Controls and Procedures, and that Amendment No. 2 to the Companys Annual Report on Form 10-K for the year ended July 31, 2019, filed on February 8, 2021 with the SEC (Amendment No. 2, and collectively with the Original Form 10-K and Amendment No. 1, the Form 10-K), to reflect a restatement of our consolidated financial statements.
Description of Restatement
This Amended Annual Report restates the Companys consolidated financial statements in order to correct errors resulting from the improper recognition of share-based compensation expense related to the stock options issued to the Companys Chief Financial Officer, Alexander D. Henderson, during the year ended July 31, 2019 under the terms of his employment agreement with the Company. In the course of preparing the Annual Report on Form 10-K for the annual period ended July 30, 2020, the Companys management discovered that certain components of the Companys Consolidated Statements of Changes in Stockholders Equity relating to Mr. Hendersons stock options were not adjusted and valued on a post-split basis for the one-for-ten reverse stock split effected on June 5, 2019. The value of Mr. Hendersons stock options were originally reported as $1,061,017, rather than $106,102, which would have reflected the post-split value. As a result, the following line items were overstated by $954,915: (i) Additional Paid in Capital and Accumulated Deficit as reported on the Companys Balance Sheet and Consolidated Statements of Changes in Stockholders Equity (Deficit) as of July 31, 2019; (ii) Stock-Based Compensation Expense as reported on the Company Consolidated Statements of Operations a component of Salaries and Wages; and (iii) Net Loss and Stock-Based Compensation as reported on the Companys Consolidated Statements of Cash Flows. The Company has amended and updated the consolidated financial statements accordingly to reflect Mr. Hendersons stock options at the appropriate valuation, as well as the corresponding disclosures in the MD&A to correct this error.
A summary of the accounting impact of these adjustments to the Companys consolidated financial statements as of and for the year ended July 31, 2019 is provided at Note 10, Restatement of Financial Statements. As discussed in Note 10, we are filing this Amended Annual Report for the sole purpose of correcting the error in the valuation of Mr. Hendersons stock options.
### Items Amended in This Amended Annual Report
For the reasons discussed above, we are filing this Amended Annual Report to amend the following sections, to the extent necessary, to reflect the adjustment discussed above:
Part II, Item 7.
Part II, Item 8.
### Part III, Item 11. Executive Compensation
3 currently dated certifications of the Companys Chief Executive Officer and Principal Financial Officer (attached as Exhibits 31.1, 31.2, 32.1, and 32.2).
Except as noted above, no other information in Amendment No. 2 (the most recent amendment of the Form 10-K) is amended hereby, this Amended Annual Report speaks as of the date of the filing of Amendment No. 2, and we have not updated the disclosures in this Amended Annual Report to speak as of a later date. All information contained in this Amended Annual Report is subject to updating and supplementing as provided in our reports filed with the SEC subsequent to the date of Amendment No. 2. Accordingly, this Amended Annual Report should be read in conjunction with our filings made with the SEC subsequent to the Amendment No. 2, including any amendment to these filings.
### Toga Limited
Form 10-K
### PART I
Item 1. Business.
General
### Our Company
We have two lines of business.
Corporate History
We have had two stock splits.
### Subsidiaries
In
Bhd.
### Yippi
Industry Overview
In addition, Apple, Inc.
### Product and Market
### Marketing Strategy
(ii) Yippi Publicity; and (iii) Market Development.
Market Penetration
### Yippi Publicity
### Market Development
Scientific Advisory Council
Beverly Rubik, Prof. Dr.
### Target Market
Competition
Facebook Inc. and Twitter, Inc.
### Yipps Agreements
Prior Business Structure;
Acquisition of Eostre Bhd.
Toh, Mr.
(ii) Mr. Toh and Mr. Mr. Toh, Mr.
Toh, Mr.
will be transferred to us.
### Business in China
and ShenZhen YiYi.
Industry Overview
### Products and Market
### Marketing Strategy
### Target Market
Competition
### Manufacturing
Collaboration Agreements
The Gintell E-Shop Agreement expired on January 21,2021 and may be renewed by mutual written agreement of the parties.
### Other Agreements
Mr. Beginning in June 2020, Mr.
### Advertising Agreements
Intellectual Property
### Toga Name
Yippi App
### Eostre
(the Eostre Bhd. Intercompany Agreement). Pursuant to the Eostre Bhd. The term of the Eostre Bhd.
### Governmental Regulation
### Employees
Item 1A. Risk Factors.
As of July 31, 2019 and 2018, our cash and cash equivalents held in bank accounts totaled $15 million and $1.1 million, respectively.
Our accumulated deficit as of July 31, 2019 is $23.7 million.
As disclosed under Item 9A.
Bhd.
Ltd.
general economic conditions;
complex U.S. changes in exchange rates; changes in taxation; the effects of COVID-19; and
### Item 2. Properties.
Ho Chi Minh City, Vietnam; and Mesa, Arizona.
We did not renew.
, 21 st
Floor, No. The lease had a two-year term.
, 29 th
### Item 3. Legal Proceedings.
Item 4. Mine Safety Disclosures.
Not applicable.
### PART II
Item 5.
Market Information
(1)Through January 29, 2021
### Holders
Dividends
(1)
On April 1, 2018, we entered into with 29 of our employees, pursuant to which we agreed to issue to such employees an aggregate of 348,953 shares of our restricted Common Stock. Toh; Lim; Ng; Tan.
, as reported by the OTCM.
On July 15, 2018, we entered into with 27 of our employees, pursuant to which we agreed to issue to such employees an aggregate of 253,039 shares of our restricted Common Stock. Toh; 39,994 were issued to Mr. Ng; and 3,250 were issued to Mr. Lim.
On December 1, 2018, we entered into with 32 of our employees, pursuant to which we agreed to issue to such employees an aggregate of 782,959 shares of our restricted Common Stock. Toh; Lim; Ng; and 200,593 were issued to Mr. Tan.
### Repurchases
Item 6. Selected Financial Data
### Not applicable.
Item 7.
Please see
Item 1.
, for additional information.
### Results of Operations
Gross Margin by product for the year ended July 31, 2019
Net loss decreased by approximately $4.3 million, or 32%, in the year ended July 31, 2019, compared to the prior year period, due to a decrease in other expense of $16.3 million, offset by an increase in loss from operations primarily attributed to the increases in salary and wages, including stock-based compensation of approximately $10.1 million, offset by an increase in gross profit of approximately $3.3 million.
### Cash Flow
Cash flows provided by operating activities for the year ended July 31, 2019 was comprised of a net loss of $9.3 million, which was increased by non-cash income of $3.2 million for gain on sale of digital currency, and was offset by non-cash expenses of $93,000 for depreciation, $10.1 million for stock-based compensation, and a net change in working capital of $5.0 million.
Contractual Obligations
Item 7A.
Item 8.
Item 15.<|endoftext|>Reasonable assurance to management and to the Companys Board of Directors regarding the preparation and fair presentation of published financial statements. Under the supervision and with the participation of management, including the Companys Principal Executive Officer and Principal Financial Officer, management conducted an evaluation of the effectiveness of the Companys internal control over financial reporting based on the framework in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO 2013). Based on managements evaluation under the framework in Internal ControlIntegrated Framework, management concluded that the Companys internal control over financial reporting was effective as of December31, 2020.
Since the Company is a non-accelerated filer, managements report is not subject to attestation by the Company's registered public accounting firm pursuant to Section404(b)of the Sarbanes-Oxley Act of 2002. As a result, this Annual Report contains only managements report on internal controls.
(c)
There were no changes in the Companys internal control over financial reporting in the fourth quarter of 2020 that materially affected, or would be reasonably likely to materially affect, the Companys internal control over financial reporting.
(d)
Limitations of the Effectiveness of Internal Controls
The effectiveness of the Companys system of disclosure controls and procedures and internal control over financial reporting is subject to certain limitations, including the exercise of judgment in designing, implementing and evaluating the control system, the assumptions used in identifying the likelihood of future events, and the inability to eliminate fraud and misconduct completely. As a result, there can be no assurance that the Companys disclosure controls and procedures and internal control over financial reporting will detect all errors or fraud. However, the Companys control systems have been designed to provide reasonable assurance of achieving their objectives, and the Companys Principal Executive Officer and Principal Financial Officer have concluded that the Companys disclosure controls and procedures and internal control over financial reporting are effective at the reasonable assurance level.
UNITED-GUARDIAN, INC.
Item 9B.
Other Information.
None.
### PART III
Item 10.
The information required by this item is incorporated by reference to the section entitled Directors and Executive Officers to be contained in the Companys 2021 Proxy Statement.
### Code of Ethics
The Company has adopted a Code of Business Conduct and Ethics that applies to all officers, directors, and employees serving in any capacity to the Company, including the Chief Executive Officer and/or President, Chief Financial Officer, and Principal Accounting Officer. A copy of the Company's Code of Business Conduct and Ethics is available on the Company's website at [IDX] The Company intends to satisfy the disclosure requirement under Item 5.05 of Form 8-K relating to amendments to or waivers from any provision of its Code of Business Conduct and Ethics applicable to the Chief Executive Officer, Chief Financial Officer, and Principal Accounting Officer by posting this information on the Company's website.
Audit Committee
The Company has an Audit Committee (Committee) that is currently composed of three of the Companys independent directors, as well as an additional outside director that has expertise in both accounting and financial reporting, who acts as an advisor to the Committee. The members of the Committee are elected annually by the Board of Directors. The Committee was established for the purpose of assisting the Board of Directors in fulfilling its oversight responsibilities, including (a) overseeing the Companys accounting and financial reporting processes, including preparation of financial statements and audits; (b) assuring the Companys compliance with all legal, regulatory, and ethical responsibilities; (c) evaluating the qualifications and independence of the Companys independent accountants; and (d) assessing the effectiveness of the Companys internal controls and risk management procedures. The Committee currently meets five times a year, and is governed by a charter that was adopted in 2006 and updated in 2020.
Item 11.
### Executive Compensation.
The information required by this item is incorporated herein by reference to the section entitled "Compensation of Directors and Executive Officers" in the Company's 2021 Proxy Statement.
UNITED-GUARDIAN, INC.
### Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The information required by this item is incorporated by reference to the section entitled "Voting Securities and Principal Stockholders" in the Company's 2021 Proxy Statement.
### Item 13.
The information required by this item is incorporated by reference to the section entitled Directors and Executive Officers" in the Company's 2021 Proxy Statement.
Item 14.
### Audit Fees
The aggregate fees that have been billed by Baker Tilly US, LLP (Baker Tilly), the Companys principal accountants since March 25, 2019, for the quarterly reviews of the Companys financial statements for the first, second and third quarters of 2019 and the audit of the Companys financial statements for the 2019 fiscal year were $89,000.
The aggregate fees that have been, or are expected to be, billed by Baker Tilly for the quarterly reviews of the Companys financial statements for the first, second and third quarters of 2020 and the audit of the Companys financial statements for the 2020 fiscal year are $89,500.
During 2020, the Company paid Raich Ende Malter & Co (Raich) $5,000 in connection with the audit of the Companys financial statements for the 2019 fiscal year.
### Audit-Related Fees
During 2020, there were no fees paid to Baker Tilly in connection with the Company's compliance with Section 404 of the Sarbanes-Oxley Act of 2002.
No other fees were billed by Baker Tilly for the last two fiscal years that were reasonably related to the performance of the audit or review of the Company's financial statements and not reported under "Audit Fees" above.
### Tax Fees
There were no fees billed by Baker Tilly during the last two fiscal years for professional services rendered for tax compliance, tax advice, or tax planning. Accordingly, none of such services were approved pursuant to pre-approval procedures or permitted waivers thereof.
All Other Fees
There were no other non-audit-related fees billed to the Company by Baker Tilly in 2020 or 2019.
UNITED-GUARDIAN, INC.
Engagement of accounting services by the Company is not made pursuant to any pre-approval policies and procedures. Rather, the Company believes that its accounting firm is independent because all of its engagements by the Company are approved by the Company's Audit Committee prior to any such engagement.
The Audit Committee meets periodically to review and approve the scope of the services to be provided to the Company by its Independent Registered Public Accounting Firm, as well as to review and discuss any issues that may arise during an engagement. The Committee is responsible for the prior approval of every engagement of the Company's Independent Registered Public Accounting Firm to perform audit and permissible non-audit services for the Company, such as quarterly financial reviews, tax matters, and consultation on new accounting and disclosure standards.
Before the auditors are engaged to provide those services, the President and the Controller will make a recommendation to the Committee regarding each of the services to be performed, including the fees to be charged for such services. At the request of the Committee, the Independent Registered Public Accounting Firm and/or management shall periodically report to the Committee regarding the extent of services being provided by the Independent Registered Public Accounting Firm, and the fees for the services performed to date.
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Of the framework developed by management to determine the qualitative adjustments applied.
o
Evaluated managements reasonable and supportable forecasts of unemployment rates and real GDP by comparing forecasts to relevant external data.
o
We assessed the reasonableness of managements determination whether, and the magnitude thereof, qualitative adjustments were warranted based on the current conditions at the report date compared to the period from which the historical loss rates were evaluated.
/s/ Plante & Moran PLLC
### Chicago, Illinois
March 8, 2021
### Table of Contents
Item 9.Changes in and Disagreements with Accountants on Accounting and Financial Disclosur e
### None
Item 9A. Controls and Procedure s
The Chief Executive Officer and Chief Financial Officer have evaluated the effectiveness of the design and operation of the Companys disclosure controls and procedures, as defined in Rule13a-15(e)promulgated under the Securities and Exchange Act of 1934, as amended (the Exchange Act), as of December31,2020. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that as of December31,2020, the Companys disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the SECs rulesand forms and such information is accumulated and communicated to the issuers management, including its principal executive and principal financial officers as appropriate to allow timely decisions regarding required disclosure.
There were no changes in the Companys internal control over financial reporting during the quarter ended December31,2020, that have materially affected or are reasonably likely to materially affect, the Companys internal control over financial reporting.
The management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rule13a15(f)under the Exchange Act. The Companys internal control over financial reporting is a process designed under the supervision of the Companys Chief Executive Officer and Chief Financial Officer to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the Companys financial statements for external reporting purposes in accordance with U.S.
As of December31,2020, management assessed the effectiveness of the Companys internal control over financial reporting based on the framework established in the Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this evaluation, management has determined that the Companys internal control over financial reporting was effective as of December31,2020, based on the criteria specified.
Plante& Moran PLLC, the independent registered public accounting firm that audited the consolidated financial statements of the Company incorporated by reference into this Annual Report on Form10-K, has issued an attestation report, included herein, on the Companys internal control over financial reporting as of December31,2020.
### Table of Contents
### Old Second Bancorp, Inc.
We have audited the internal control over financial reporting as of December 31, 2020, of Old Second Bancorp, Inc. and subsidiaries (the Company), based on criteria established in
Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO framework). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020, based on criteria established in the COSO framework.
We also have audited the accompanying consolidated balance sheets of the Company as of December 31, 2020 and 2019, the related consolidated statements of income, comprehensive income, stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 2020, and the related notes (collectively referred to as the financial statements), in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB). Our report dated March 8, 2021, expressed an unqualified opinion.
### Basis for Opinion
The Company's management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Managements Report on Internal Control Over Financial Reporting.
/s/ Plante & Moran PLLC
### Chicago, Illinois
March 8, 2021
### Table of Contents
Item 9B. Other Information
None.
### PART III
Item 10.
The Company incorporates by reference the information required by Item 10 that is contained in the Proxy Statement for the 2021 Annual Meeting of Stockholders to be filed with the SEC within 120 days after December31,2020, on form DEF 14A (the Proxy Statement), under the following captions:
Proposal 1Election of Directors, including Director Experience and Biographical Information for Executive Officers;
Corporate Governance and the Board of DirectorsCode of Business Conduct and Ethics; and
Corporate Governance and the Board of Directors Committees of the Board of DirectorsAudit Committee.
### Item 11.Executive Compensatio n
The Company incorporates by reference the information required by Item 11 that is contained in our Proxy Statement under the following captions:
Compensation Discussion and Analysis;
### Compensation Committee Report;
Executive Compensation;
Director Compensation; and
Corporate Governance and the Board of DirectorsCompensation Committee Interlocks and Insider Participation.
The following table sets forth information for (i) all equity compensation plans previously approved by the Companys stockholders and (ii) all equity compensation plans not previously approved by the Companys stockholders. Equity compensation includes options, warrants, rights and restricted stock units which may be granted from time to time. As of December31,2020, the below equity awards were outstanding:
Numberofsecurities
Weighted-average tobeissueduponthe exercise price of
Numberof exerciseof outstanding outstanding options securitiesremaining options and restricted and restricted availableforfuture
### Plancategory stock units stock units issuance
$
13.15
-
-
-
### Total
$
13.15
Reflects the outstanding awards under our 2019 Equity Incentive Plan and our 2014 Equity Incentive Plan, as well as the total remaining share reserve under our 2019 Equity Incentive Plan.
The Company incorporates by reference the other information that is required by this Item 12 that is contained in our Proxy Statement under the caption Security Ownership of Certain Beneficial Owners and Management.
Item 13. Certain Relationships and Related Transactions, and Director Independenc e
The Company incorporates by reference the information that is required by this Item 13 that is contained in our Proxy Statement under the captions Corporate Governance and the Board of Directors - Director Independence and - Certain Relationships and Related Party Transactions.
### Table of Contents
Item 14. Principal Accountant Fees and Service s
The Company incorporates by reference the information required by this Item 14 that is contained in our Proxy Statement under the caption Ratification of our Independent Public Accountants.
PARTI
V
Item 15. Exhibits and Financial Statement Schedule s
(1)
See PartII--Item 8.
(2)
All financial statement schedules as required by Item 8 of Form10-K have been omitted because the information requested is either not applicable or has been included in the consolidated financial statements or notes thereto.
(3)
Exhibits: See ExhibitIndex.
### Item 16. Form 10-K Summary
Not Applicable.
Exhibits:
### Table of Contents
Table of Contents
# Filed herewith.
Table of Contents<|endoftext|>Trials for the combined therapies (other than IBRANCE (palbociclib)).
### Contingencies
From time to time, the Company may have certain contingent liabilities that arise in the ordinary course of business. The Company accrues a liability for such matters when it is probable that future expenditures will be made, and such expenditures can be reasonably estimated. For all periods presented, the Company was not a party to any pending material litigation or other material legal proceedings.
Indemnification Agreements
As of December31, 2020 and 2019, the Company had not incurred any material costs as a result of such indemnifications.
### Item9.
None.
Item9A.
Controls and Procedures.
As of December31, 2020, management, with the participation of our Chief Executive Officer and Chief Financial Officer, performed an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as defined in Rules13a-15(e)and 15d-15(e)of the Exchange Act. Our disclosure controls and procedures are designed to ensure that information required to be disclosed in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SECs rulesand forms, and that such information is accumulated and communicated to our management, including the Chief Executive Officer and Chief Financial Officer, to allow timely decisions regarding required disclosures.
Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of December31, 2020, the design and operation of our disclosure controls and procedures were effective at a reasonable assurance level.
### During
, management implemented steps to address the previously reported material weaknesses in the Companys internal control over financial reporting, including hir ing additional key finance and accounting personnel, creat ing formal financial policies and procedures, including month-end close process, and establish ing more robust processes supporting internal controls over financial reporting
Our management believes that these and other actions taken to remediate th e material weakness es previously identified have been fully implemented and that the previously reported material weakness had been remediated
This Annual Report does not include a report of managements assessment regarding internal control over financial reporting or an attestation report of our independent registered public accounting firm due to a transition period established by the rulesof the SEC for newly public companies.
Item9B.
### Other Information.
On March 11, 2021, the compensation committee of our board of directors approved a one-time payment of $109,936 to David Myles, our Chief Development Officer. The payment relates to reimbursement of payments previously made by Dr. Myles to us in connection with the repayment of a loan from us to Dr. Myles, on a tax-adjusted basis.
PARTIII
### Item10.
Information required by this item regarding directors and director nominees, executive officers, the board of directors and its committees, and certain corporate governance matters is incorporated by reference to the information set forth under the captions Proposal No.1Election of Directors, Corporate Governance and Board of Directors Matters and Executive Officers in our Proxy Statement for our 2021 Annual Meeting of Stockholders. Information required by this item regarding compliance with Section16(a)of the Exchange Act, if applicable, is incorporated by reference to the information set forth under the caption Delinquent Section 16(a) Reports in our Proxy Statement.
Our written code of business conduct and ethics (the Code of Conduct) applies to all of our employees, officers and directors, including our principal executive officer, principal financial officer and principal accounting officer or controller. The Code of Conduct is available on our corporate website at [IDX] in the Investors& Media section under Corporate Governance. If we make any substantive amendments to our Code of Conduct or grant any of our directors or executive officers any waiver, including any implicit waiver, from a provision of our Code of Conduct, we will disclose the nature of the amendment or waiver on our website or in a Current Report on Form8-K.
Information required by this item regarding executive compensation is incorporated by reference to the information set forth under the captions Executive Compensation and Director Compensation in our Proxy Statement.
Item12.Security Ownership of Certain Beneficial Owners and Management and Related Stockholder
### Matters.
Information required by this item regarding security ownership of certain beneficial owners and management is incorporated by reference to the information set forth under the caption Security Ownership of Certain Beneficial Owners and Management and Equity Compensation in our Proxy Statement.
Item13.
Information required by this item regarding certain relationships, related transactions and director independence is incorporated by reference to the information set forth under the caption Transactions with Related Persons and Indemnification and Corporate Governance and Board Matters in our Proxy Statement.
Information required by this item regarding principal accounting fees and services is incorporated by reference to the information set forth under the caption Proposal No.2Ratification of Selection of Independent Registered Public Accounting Firm in our Proxy Statement.
PARTIV
Item15.Exhibit and Financial Statement Schedules.
(a)
1.
### Financial Statements.
See Index to Financial Statements in PartII Item8 of this Annual Report.
2.
None. All financial statement schedules are omitted because they are not applicable, not required under the instructions, or the requested information is included in the financial statements or notes thereto.
3.
### Exhibits
The following is a list of exhibits filed with this Annual Report or incorporated herein by reference:
IncorporationbyReference
### Exhibit
Number
Exhibit
### Description
Form
FileNo.
### Exhibit
Filing
Date
### Filed
Herewith
3.1
8-K
001-39712
3.1
11/23/2020
3.2
Amended and Restated Certificate of Bylaws
8-K
001-39712
3.2
11/23/2020
4.1
S-1
333-249748
4.1
10/30/2020
4.2
Amended and Restated Investors Rights Agreement, by and among the Registrant and certain of its stockholders, dated September 30, 2020.
S-1
333-249748
4.2
10/30/2020
4.3
Description of Capital Stock
X
10.1#
Olema Pharmaceuticals, Inc. 2014 Stock Plan, as amended.
S-1
333-249748
10.1
10/30/2020
10.2#
Forms of Stock Option Grant Notice, Stock Option Agreement, Early Exercise Stock Purchase Agreement and Notice of Exercise and Restricted Stock Award Grant Notice and Restricted Stock Award Agreement under the Olema Pharmaceuticals, Inc. 2014 Stock Plan.
S-1
333-249748
10.2
10/30/2020
10.3#
Olema Pharmaceuticals, Inc. 2020 Equity Incentive Plan.
S-1/A
333-249748
10.3
11/16/2020
10.4#
Forms of Stock Option Grant Notice and Stock Option Agreement under the Olema Pharmaceuticals, Inc. 2020 Equity Incentive Plan.
S-1
333-249748
10.4
10/30/2020
### IncorporationbyReference
Exhibit
Number
### Exhibit
Description
Form
FileNo.
### Exhibit
Filing
Date
### Filed
Herewith
21.1
Subsidiaries of the Registrant as of December 31, 2020.
X
23.1
X
24.1
Power of Attorney (included on the Signatures page of this Annual Report on Form 10-K).
X
31.1
X
31.2
X
32.1
X
32.2
X
#
The certifications attached as Exhibit32.1 and Exhibit32.2 that accompany this Annual Report are not deemed filed with the Securities and Exchange Commission and are not to be incorporated by reference into any filing of the Registrant under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date of this Annual Report, irrespective of any general incorporation language contained in such filing.
Item16.Form10-K Summary.
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Triccar Inc. (the Company) is filing this Annual Report on Form 10-K/A, Amendment No.1, for the year ended December31, 2020 (the Annual Report on Form 10-K/A) to amend the Companys Annual Report on Form 10-K (the Original Report) for the fiscal year ended December31, 2020, as filed with the Securities and Exchange Commission (SEC) on July 20, 2021. The purpose of this Annual Report on Form 10-K/A is to amend:
The remainder of the Original Report, including the Financial Statements and Supplementary Financial Data, remains unchanged except for the inclusion of new certifications required by Rule 13a-14 under the Securities Exchange Act of 1934, as amended, as required in connection with the filing of this Annual Report on Form 10-K/A. Notwithstanding the existence of this material weakness, management has concluded that the Companys consolidated financial statements included in its Annual Report on Form 10-K for the year ended December31, 2020, as initially filed on July 20, 2021, or in its Quarterly Reports on Form 10-Q for the quarters ended March31, 2021 or June30, 2021, as initially filed on July 21, 2021 and August 19, 2021, respectively are fairly stated in all material respects in accordance with generally accepted accounting principles in the United States of America.
We have made no attempt in this Annual Report on Form 10-K/A to modify or update the disclosures presented in the Original Report other than as noted in the previous paragraphs. Except as noted above, this Annual Report on Form 10-K/A does not reflect events occurring after the filing of the Original Report. Accordingly, this Annual Report on Form 10-K/A should be read in conjunction with the Original Report, including any amendments thereto, and the Companys other filings with the SEC subsequent to the filing of the Original Report, including any amendments thereto.
### PART I
Forward Looking Statements
This annual report on Form 10-K includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the Securities Act), and Section 21E of the Securities Exchange Act of 1934, as amended (the Exchange Act), which can be identified by the use of forward-looking terminology such as may, can, believe, expect, intend, plan, seek, anticipate, estimate, will, or continue or the negative thereof or other variations thereon or comparable terminology. All statements other than statements of historical fact included in this annual report on Form 10-K, including without limitation, the statements under Item 1. Business and Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations and located elsewhere herein regarding the financial position and liquidity of the Company (defined below) are forward-looking statements. Although the Company believes the expectations reflected in such forward-looking statements are reasonable, it can give no assurance that such expectations will prove to have been correct. Important factors with respect to any such forward-looking statements, including certain risks and uncertainties that could cause actual results to differ materially from the Companys expectations (Cautionary Statements), are disclosed in this annual report on Form 10-K, including, without limitation, in conjunction with the forward-looking statements and under the caption Risk Factors. In addition, important factors that could cause actual results to differ materially from those in the forward-looking statements included herein include, but are not limited to, limited working capital, limited access to capital, changes from anticipated levels of sales, future national or regional economic and competitive conditions, changes in relationships with customers, difficulties in developing and marketing new products, marketing existing products, customer acceptance of existing and new products, , technological change, dependence on key personnel, availability of key component parts, vendors, contractors, product liability, casualty to or other disruption of the production facilities, delays and disruptions in the shipment of the Companys products, and the ability of the Company to meet its stated business goals. All subsequent written and oral forward-looking statements attributable to the Company or persons acting on its behalf are expressly qualified in their entirety by the Cautionary Statements. We do not undertake to update any forward-looking statements.
We do not have an operative web site upon which our periodic reports, proxy statements and Reports on Form 8-K appear. Our reports are available on the SECs EDGAR system and may be viewed at [IDX]
### PART II
Item 9A.
Controls and Procedures.
### Evaluation of Disclosure Controls and Procedures:
Our management carried out an evaluation of the effectiveness and design and operation of our disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) under the Securities and Exchange Act of 1934, as amended (the Exchange Act). Based on that evaluation, our Chief Executive Officer and Chief Financial Officer has concluded that, at December 31, 2020, such disclosure controls and procedures were not effective.
Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that the information required to be disclosed in our reports filed or submitted under the Exchange Act is accumulated and communicated to management including our Chief Executive Officer and Chief Financial Officer, or persons performing similar functions, as appropriate, to allow timely decisions regarding required disclosure.
### Limitations on the Effectiveness of Controls:
Because of inherent limitation in all control systems, no evaluation of controls can provide absolute assurance that all control issues, if any, within a company have been detected. Our Chief Executive Officer and Chief Financial Officer has concluded, based on his evaluation as of the end of the period covered by this Report that our disclosure controls and procedures were sufficiently effective to provide reasonable assurance that the objectives of our disclosure control system were met.
There were no changes in our internal control over financial reporting that occurred during the fourth quarter ended December 31, 2020, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting
Internal control over financial reporting is defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act and is a process designed by, or under the supervision of, our Chief Executive and Chief Financial Officer and effected by our Board, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that:
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of our management and directors; and
In making this assessment our management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in
Internal Control
- integrated Framework (2013).
Based on its evaluation, our management has concluded that, as of December 31, 2020, our internal control over financial reporting was not effective. The lack of separation of duties between the Chief Executive Officer and the Chief Financial Officer, being the same person, along with the lack of personnel between processes provided two material weaknesses in the effectiveness of our controls.
We are a smaller reporting company and are exempt from the requirement for an attestation report on the Companys internal controls over financial reporting by our registered public accounting firm.
### PART IV
Item 15.<|endoftext|>Who executed a waiver of any and all rights to seek access to the trust account and except as to any claims under our indemnity of the underwriters of the initial public offering against certain liabilities, including liabilities under the Securities Act. We have not independently verified whether our sponsor has sufficient funds to satisfy its indemnity obligations, we have not asked our sponsor to reserve for such obligations and it may not be able to satisfy those obligations. We believe the likelihood of our sponsor having to indemnify the trust account is limited because we endeavor to have all third parties that provide products or services to us and prospective target businesses execute agreements with us waiving any right, title, interest or claim of any kind in or to monies held in the trust account.
Conflicts of Interest
Our amended and restated memorandum and articles of association provide that, subject to his or her fiduciary duties under Cayman Islands law, we renounce our interest in any corporate opportunity offered to any officer or director unless such opportunity is expressly offered to such person solely in his or her capacity as a director or officer of our company and such opportunity is one we are legally and contractually permitted to undertake and would otherwise be reasonable for us to pursue.
Each of the holders of the founder shares and placement units has agreed that his, her or its founder shares and placement shares, as applicable, are subject to transfer restrictions and that he, she or it will not sell or transfer such shares until the applicable forfeiture provisions no longer apply. Holders of founder shares and placement shares have agreed to waive their redemption rights with respect to their founder shares and placement shares, as applicable, (i)in connection with the consummation of a business combination, (ii)in connection with a shareholder vote to amend our amended and restated memorandum and articles of association to modify the substance or timing of our obligation to redeem 100% of our public shares if we do not complete our initial business combination by August 28, 2022 and (iii)if we fail to consummate a business combination by August 28, 2022 or if we liquidate prior to August 28, 2022. The initial holders have also agreed to waive their redemption rights with respect to public shares in connection with the consummation of a business combination and in connection with a shareholder vote to amend our amended and restated memorandum and articles of association to modify the substance or timing of our obligation to redeem 100% of our public shares if we do not complete our initial business combination by August 28, 2022. However, our initial holders will be entitled to redemption rights with respect to any public shares held by them if we fail to consummate a business combination or liquidate by August 28, 2022. To the extent our holders of founder shares or placement shares transfer any of these securities to certain permitted transferees, such permitted transferees will agree, as a condition to such transfer, to waive these same redemption rights. If we do not complete our initial business combination by August 28, 2022, the portion of the proceeds of the sale of the placement units placed into the trust account will be used to fund the redemption of our public shares. There will be no redemption rights or liquidating distributions with respect to our founder shares, placement shares or placement warrants, which will expire worthless if we do not consummate an initial business combination by August 28, 2022.
Our sponsor, officers and directors may participate in the formation of, or become an officer or director of, any other blank check company prior to completion of our initial business combination.
Below is a table summarizing the entities to which our officers and directors currently have fiduciary duties or contractual obligations:
(1)
Does not include blank check companies, such as FTAC Zeus, FTAC Parnassus and FinTech VI, each of which have not yet consummated an initial public offering.
(2)
Mr.Gilbert represents Propel Venture Partners, a venture capital fund, on the boards of directors of various private companies. We dont anticipate that any of these companies will be of an appropriate size for our initial business combination, nor do we believe that his role as a director of these companies will conflict with his ability to represent us in our search for an initial business combination target.
Accordingly, if any of the above officers or directors become aware of a business combination opportunity which is suitable for any of the above entities to which he or she has then-currentfiduciary or contractual obligations, he or she will honor his or her fiduciary or contractual obligations to present such business combination opportunity to such entity, and only present it to us if such entity rejects the opportunity, subject to his or her fiduciary duties under Cayman Islands law. We do not believe, however, that any of the foregoing fiduciary duties or contractual obligations will materially affect our ability to complete our initial business combination, because, although many of the foregoing entities are involved in the financial services industry broadly defined, the specific industry focuses of a majority of these entities differ from our focus on financial technology businesses and the type or size of the transaction that such companies would most likely consider are of a size and nature substantially different than what we are targeting.
Our sponsor and officers and directors may during that time also participate in the formation of, or become an officer or director of, another special purpose acquisition company.
In the event that we submit our initial business combination to our public shareholders for a vote, our sponsor, officers and directors have agreed, pursuant to the terms of a letter agreement entered into with us, to vote any founder shares and placement shares held by them (and their permitted transferees will agree) and any public shares purchased during or after the initial public offering in favor of our initial business combination.
### Director Independence
We have determined that Mses. Tuan, Trachtman and Eisenhart and Mr. Jones are independent directors under the Nasdaq rules and Rule 10A-3 of the Exchange Act.
Item14.
The firm of WithumSmith+Brown, PC, or Withum, acted as our independent registered public accounting firm during the year ended December 31, 2020. The following is a summary of fees paid or to be paid to Withum for services rendered during the indicated periods.
Audit Fees
During the period from June 2, 2020 (inception) through December 31, 2020, fees for our independent registered public accounting firm were $82,915 for the services Withum performed in connection with our Initial Public Offering, quarterly reviews and the audit of our financial statements included in this Annual Report.
### Audit-Related Fees
During the period from June 2, 2020 (inception) through December 31, 2020, Withum did not render assurance and related services related to the performance of the audit or review of our financial statements.
Tax Fees
During the period from June 2, 2020 (inception) through December 31, 2020, Withum did not render services to us for tax compliance, tax advice and tax planning.
### All Other Fees
During the period from June 2, 2020 (inception) through December 31, 2020, there were no fees billed for products and services provided by Withum other than those set forth above.
### PART IV
Item15.
(a)
(1)
Financial Statements (as restated):
(2)
None.
(3)
### Exhibits
*
Filed herewith
**
Previously filed
(1)
Previously filed as an exhibit to our Current Report on Form 8-K filed on August 31, 2020
(2)
333-241831)
(3)
Previously filed as an exhibit to our Current Report on Form 8-K filed on February 3, 2021
(4)
Previously filed as an exhibit to our Current Report on Form 8-K filed on February 16, 2021
Item16.
FORM 10-K SUMMARY.
Not applicable.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Investors. (6)
4.4
Form of Re-pricing Warrant issued by the Company to investors. (6)
4.5
Form of Registration Rights Agreement between the Company and investors, dated March 27, 2000 (6)
4.6
Form of Common Stock Purchase Warrant to be issued by the Company to Sovereign Capital Advisors, LLC (6)
4.7
Form of Convertible Promissory Note issued by the Company to preferred shareholders of Providential Securities, Inc. (6)
5.1
Opinion Re Validity of Agreements (6) 10.1 Benatone Exchange Agreement, with Creditors (2)
10.2
Benatone Share Acquisition Agreement (for Weldnow Enterprise, Ltd.) (2)
10.3
Benatone Share Acquisition Agreement (Dynedeem Limited) (2)
10.4
Benatone Exchange Agreement (2)
10.5
Benatone Asset Sale Agreement (2)
10.6
Benatone Royalty Agreement (2)
10.7
Benatone Consultancy Agreement (2)
10.8
Benatone Deed (2)
10.9
Autokraft Stock Purchase Agreement (3)
10.10
Autokraft Stock Subscription Agreement (3)
10.11
Prima Agreement and Plan of Merger (4)
10.12
Escrow Agreement between the Company and Warshaw Burstein Cohen Schelsinger & Kuh, LLP, dated March 28, 2000. (6)
10.13
Placement Agency Agreement between the Company and Sovereign Capital Advisors, LLC, dated March 28, 2000. (6)
10.14
Guaranty Agreement between Henry Fahman and SovCap Equity Partners, Ltd, dated March 28, 2000. (6)
10.15
Pledge Agreement between Henry Fahman and SovCap Equity Partners, Ltd, dated March 28, 2000. (6)
10.16
Partnership Purchase Agreement between the Company and Holt Collins, dated May 31, 2000. (6)
10.17
Memorandum of Agreement between DataLogic Consulting, Inc. and PHI Group, Inc., dated April 25, 2001. (5)
10.18.1
and Epicenter, Inc., dated October 30, 2000. (5)
10.18.2
and Epicenter, Inc., dated November 30, 2000. (5)
10.18.3
and Epicenter, Inc., dated January 12, 2001. (5)
10.18.4
and Epicenter, Inc., dated June 26, 2001. (5)
10.18.5
and Epicenter, Inc., dated October 02, 2001. (5)
10.19
Joint Venture Agreement between Providential Holdings, Inc and Boxo, Inc., dated January 1, 2001. (5)
10.20
License of Manna Technologies Joint Venture Company, dated March 21, 2001. (5)
10.21
Memorandum of Agreement between International Consulting and Training Center, Ministry of Trade, Vietnam and the Company, dated March 24, 2001. (5)
10.22
Memorandum of Agreement among General Transportation Company No. 5, Chu Lai Industrial Zone and the Company, dated March 25, 2001. (5)
10.23
and Global Systems and Technologies, Corp. dated October 18, 2001. (6)
10.24
and Estate Planning and Investment Company dated November 7, 2001. (6)
10.25
Joint Venture Agreement between PHI Group, Inc. and Mimi Ban dated November 23, 2001. (6)
10.26
Plan of acquisition of Nettel Global Communication Corp. (incorporated by reference to the Companys Current Report on Form 8-K filed May 3, 2002)
10.27
Joint Venture Agreement with Vietnams Minh Hieu Joint Stock Company. (7)
10.28
Memorandum of Agreement with HDT Enterprises, LLC dated March 15, 2002. (7)
10.29
Memorandum of Agreement and Principal Contract with Vietnams Center of Telecom Technology. (7)
10.30
Stock Purchase Agreement with SlimTech, Inc. (incorporated by reference to the Companys Current Report on Form 8-K, filed May 1, 2002).
10.31
Stock Purchase Agreement with ATC Technology Corp. (incorporated by reference to the Companys Current Report on Form 8-K, Filed September 17, 2002)
10.32
Mutual Rescission of Stock Purchase Agreement with Nettel Global Communication Corp. (8).
10.33
Business Consulting Agreement with Nettel Global Communication Corp. (8)
10.34
Business Consulting Agreement with Medical Career College (8)
10.35
Mutual Rescission of Stock Purchase Agreement with SlimTech (8)
10.36
Mutual Rescission of Stock Purchase Agreement with Clear Pass, Inc. (8).
10.37
Mutual Rescission of Joint Venture Agreement with HTV CO, Ltd. (8).
10.38
Mutual Rescission of Stock Purchase Agreement with Real ID Technology (8).
10.39
Business Consulting Agreement with Lexor Incorporated (8).
10.40
Amended Closing Memorandum with ATC Technology Corp. (8)
10.41
Stock Purchase Agreement with Tangshan YutianSaw Corporation (incorporated by reference to the Companys Current Report on Form 8-K filed June 15, 2004)
10.42
Asset Purchase Agreement with Western Medical, Inc. (incorporated by reference to the Companys Current Report on Form 8-K, file June 2, 2006)
10.43
Principle Business Cooperation Agreement with Cavico Vietnam Joint Stock Corporation (incorporated by reference to the Companys Current Report on Form 8-K, filed October 2, 2006)
16.1
Notification of Change of Accountants, Kabani & Co. appointed (incorporated by reference to exhibits filed with Form 8-K/A, filed September 10, 2001)
17.1
Resignation of Nhi T. Le as director and officer and appointment of Thorman Hwinn as Director (incorporated by reference to exhibits filed with Form 8-K, filed July 9, 2001)
17.2
Resignation of Tam Bui as Director (incorporated by reference to the Companys Current Report on Form 8-K, filed September 30, 2004).
17.3
Resignation of Gene M. Bennett as Chief Financial Officer (incorporated by reference to the Companys Current Report on Form 8-K, filed March 23, 2005).
17.4
Resignation of Robert Stevenson as Director (incorporated by reference to the Companys Current Report on Form 8-K, filed July 18, 2006).
17.5
Resignation of Ghanshyam Dass as Director (incorporated by reference to the Companys Current Report on Form 8-K, filed September 29, 2010).
17.6
Resignation of Paul Nguyen as Director (incorporated by reference to the Companys Annual Report for the Fiscal Year ended June 30, 2012 as filed with the Securities and Exchange Commission on June 2, 2014).
17.7
Unregistered Sale of Equity Securities (incorporated by reference to Companys Current Report on Form 8-K, filed on December 23, 2016).
17.8
Unregistered Sale of Equity Securities (incorporated by reference to Companys Current Report on Form 8-K, filed on December 29, 2016).
17.9
Investment Agreement with Azure Capital (incorporated by reference to Companys Current Report on Form 8-K, filed on March 7, 2017).
17.10
Unregistered Sale of Equity Securities (incorporated by reference to Companys Current Report on Form 8-K, filed on April 10, 2017).
17.11
Private Stock Purchase and Sale Agreement with Maxagro Farm SRL (incorporated by reference to Companys Current Report on Form 8-K, filed on June 1, 2017).
17.12
Contract for Transfer of Shares to purchase 51% of equity ownership in Constructii SA (incorporated by reference to Companys Current Report on Form 8-K, filed on June 30, 2017).
17.13
Unregistered Sale of Equity Securities (incorporated by reference to Companys Current Report on Form 8-K, filed on July 27, 2017).
17.14
Amendment to Private Stock Purchase and Sale Agreement with Maxagro Farm SRL (incorporated by reference to Companys Current Report on Form 8-K, filed on August 9, 2017).
17.15
Agreement of Purchase and Sale with Rush Gold Royalty Inc, a Wyoming corporation, to acquire a 51% ownership in twenty-one mining claims over an area of approximately 400 acres in Granite Mining District, Grant County, Oregon, U.S.A. (incorporated by reference to Companys Current Report on Form 8-K, filed on September 7, 2017).
17.16
Registration Statements in connection with Azure Capital Investment Agreement (incorporated by reference to Companys S-1 Registration Statement filed on April 3, 2017,
17.17
Withdrawal of Registration Statement filed on August 7, 2017, new S-1 Registration Statement filed on August 7, 2017 and S-1/A filed on September 15, 2017).
17.18
Closing Memorandum for the Agreement of Purchase and Sale with Rush Gold Royalty Inc, a Wyoming corporation, to acquire a 51% ownership in twenty-one mining claims over an area of approximately 400 acres in Granite Mining District, Grant County, Oregon, U.S.A. (incorporated by reference to Companys Current Report on Form 8-K, filed on October 9, 2017).
EXHIBIT INDEX (CONTINUED).
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE<|endoftext|>Principal business address of Millennium Group Management LP, Millennium Management LLC and Israel Englander is 666 Fifth Avenue, New York, New York 10103.
(7)
Based on a Schedule 13G filed by HGC Investment Management Inc. with the SEC on February 14, 2020. HGC Investment Management Inc. exercises sole voting and sole dispositive power over 1,967,230 shares. The principal business address of the beneficial owner is 366 Adelaide, Suite 601, Toronto, Ontario M5V 1R9, Canada.
(8)
Based on a Schedule 13G filed by Aristeia Capital, L.L.C. with the SEC on February 16, 2021. Aristeia Capital, L.L.C. exercised sole voting and sole dispositive power over 1,538,182 shares. The principal business address of the beneficial owner is One Greenwich Plaza, 3rd Floor, Greenwich, CT 06830.
### Item 13
In August 2019, our sponsor purchased 7,187,500 founder shares for an aggregate purchase price of $25,000, or approximately $0.004 per share. In October 2019, our sponsor transferred 25,000 founder shares to each of Messrs. Deal, Goulet and Krouskup, our independent director nominees (for a total of 75,000 founder shares). In connection with the partial exercise by the underwriters of their over-allotment option in connection with the initial public offering, our sponsor forfeited 406,250 founder shares, leaving a total of 7,500,000 founder shares outstanding.
Our sponsor purchased, pursuant to a written agreement, to purchase an aggregate of 8,000,000 private placement warrant at a price of $1.00 per warrant ($8,000,000 in the aggregate) in a private placement that occurred simultaneously with the closing of the initial public offering. Each private placement warrant is exercisable to purchase one share of Class A common stock at a price of $11.50 per share, subject to adjustment as provided herein. Private placement warrants may be exercised only for a whole number of shares. The private placement warrants (including the Class A common stock issuable upon exercise of the private placement warrants) may not, subject to certain limited exceptions, be transferred, assigned or sold by it until 30 days after the completion of our initial business combination.
If any of our officers or directors becomes aware of a business combination opportunity that falls within the line of business of any entity to which he or she has then-current fiduciary or contractual obligations, he or she may be required to present such business combination opportunity to such entity prior to presenting such business combination opportunity to us.
We have entered into an Administrative Services Agreement pursuant to which we pay an affiliate of our sponsor a total of $10,000 per month, for up to 24 months, for office space, utilities, administrative and support services. Accordingly, in the event the consummation of our initial business combination takes the maximum 24 months, an affiliate of our sponsor will be paid a total of $240,000 ($10,000 per month) for office space, utilities, administrative and support services and will be entitled to be reimbursed for any out-of-pocket expenses.
Our sponsor, officers and directors or any of their respective affiliates will be reimbursed for any out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential target businesses and performing due diligence on suitable business combinations. Our audit committee will review on a quarterly basis all payments that were made by us to our sponsor, officers, directors or our or any of their affiliates and will determine which expenses and the amount of expenses that will be reimbursed.
The warrants would be identical to the private placement warrants issued to our sponsor. The terms of such loans, if any, have not been determined and no written agreements exist with respect to such loans.
It is unlikely the amount of such compensation will be known at the time of distribution of such tender offer materials or at the time of a stockholder meeting held to consider our initial business combination, as applicable, as it will be up to the directors of the post-combination business to determine executive officer and director compensation.
We have adopted a formal policy for the review, approval or ratification of related party transactions. Under our Code of Ethics, conflict of interest situations include any financial transaction, arrangement or relationship (including any indebtedness or guarantee of indebtedness) involving the company.
Our audit committee is responsible for reviewing and approving related party transactions to the extent that we enter into such transactions. Our audit committee will review on a quarterly basis all payments that were made by us to our sponsor, officers or directors, or our or any of their affiliates.
To further minimize conflicts of interest, we have agreed not to consummate an initial business combination with an entity that is affiliated with any of our sponsor, officers or directors unless we, or a committee of independent and disinterested directors, have obtained an opinion from an independent investment banking firm which is a member of FINRA or an independent accounting firm that our initial business combination is fair to our company from a financial point of view. Furthermore, no finders fees, reimbursements or cash payments will be made by us to our sponsor, officers or directors, or our or any of their affiliates, for services rendered to us prior to or in connection with the completion of our initial business combination. However, the following payments will be made to our sponsor, officers or directors, or any of their affiliates:
Repayment of an aggregate of up to $300,000 in loans made to us by our sponsor to cover offering-related and organizational expenses;
Payment to an affiliate of our sponsor of a total of $10,000 per month, for up to 24 months for office space, utilities, administrative and support services;
Reimbursement for any out-of-pocket expenses related to identifying, investigating and completing an initial business combination; and
Repayment of loans which may be made by our sponsor or an affiliate of our sponsor or certain of our officers and directors to finance transaction costs in connection with an intended initial business combination, the terms of which have not been determined nor have any written agreements been executed with respect thereto.
### Item 14
### Audit Fees
For the year ended December 31, 2020 and for the period from July 31, 2019 (inception) through December 31, 2019, fees for our independent registered public accounting firm were approximately $49,440 and $55,620, respectively, for the services Withum performed in connection with our Initial Public Offering, review of the financial information included in our Forms 10-Q for the respective periods and the audit of our financial statements included in this Annual Report on Form 10-K.
Audit-Related Fees.
For the year ended December 31, 2020 and for the period from July 31, 2019 (inception) through December 31, 2019, our independent registered public accounting firm did not render assurance and related services related to the performance of the audit or review of financial statements.
### Tax Fees
For the year ended December 31, 2020 and for the period from July 31, 2019 (inception) through December 31, 2019, fees for our independent registered public accounting firm were approximately $4,635 and $0, respectively, for tax compliance, tax advice and tax planning.
All Other Fees
For the year ended December 31, 2020 and for the period from July 31, 2019 (inception) through December 31, 2019, there were no fees billed for products and services provided by our independent registered public accounting firm other than those set forth above.
### Pre-Approval Policy
PART IV
### Item 15
(a)
(1)
Financial Statements:
(2)
None.
(3)
### Exhibits
The exhibits listed below are filed as part of this Form 10-K other than Exhibits 32.1 and 32.2, which shall be deemed furnished.
*
Filed herewith.
**
Furnished herewith
+
### Item 16
Form 10-K Summary
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Transfer restrictions and the other restrictions contained in the letter agreements.
### Registration Rights
The holders of the founder shares, private placement warrants and any warrants that may be issued on conversion of working capital loans (and any ordinary shares issuable upon the exercise of the private placement warrants or warrants issued upon conversion of the working capital loans and upon conversion of the founder shares) are entitled to registration rights pursuant to a registration rights agreement signed on the effective date of our initial public offering requiring us to register such securities for resale. The holders of these securities will be entitled to make up to three demands, excluding short form registration demands, that we register such securities.
However, the registration rights agreement provides that we will not permit any registration statement filed under the Securities Act to become effective until termination of the applicable lock-up period, which occurs (1) in the case of the founder shares, on the earlier of (A) one year after the completion of our initial business combination or (B) subsequent to our initial business combination, (x) if the last reported sale price of Class A ordinary shares equals or exceeds $12.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after our initial business combination, or (y) the date following the completion of our initial business combination on which we complete a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of our public shareholders having the right to exchange their Class A ordinary shares for cash, securities or other property, and (2) in the case of the private placement warrants and the respective Class A ordinary shares underlying such warrants, 30 days after the completion of our initial business combination.
As of December 31, 2020, we had no compensation plans (including individual compensation arrangements) under which equity securities were authorized for issuance.
Item 13.
As such, our sponsor now owns 7,500,000 founder shares. Our initial shareholders collectively own 20% of our issued and outstanding shares as of our initial public offering.
The private placement warrants (including the Class A ordinary shares issuable upon exercise of the private placement warrants) may not, subject to certain limited exceptions, be transferred, assigned or sold by it until 30 days after the completion of our initial business combination.
Conflicts of Interest, if any of our officers or directors becomes aware of a business combination opportunity that falls within the line of business of any entity to which he or she has then-current fiduciary or contractual obligations, he or she may be required to present such business combination opportunity to such entity prior to presenting such business combination opportunity to us. Certain of our officers and directors presently have, and any of them in the future may have, additional, fiduciary or contractual obligations to other entities pursuant to which such officer or director is or will be required to present a business combination opportunity to such entity.
We entered into an Administrative Services Agreement pursuant to which we pay our sponsor up to $10,000 per month for office space, administrative and support services. Upon completion of our initial business combination or our liquidation, we will cease paying any of these monthly fees. Accordingly, in the event the consummation of our initial business combination takes until December 7, 2020, our sponsor will be paid an aggregate of up to approximately $360,000 ($15,000 per month) for office space, administrative and support services, and other expenses and obligations of our sponsor and will be entitled to be reimbursed for any out-of-pocket expenses.
and will determine which expenses and the amount of expenses that will be reimbursed.
Our sponsor agreed to loan us up to $300,000 under an unsecured promissory note to be used for a portion of the expenses of our initial public offering. These loans were non-interest bearing and unsecured, and were repaid upon completion of the initial public offering out of the $1,000,000 of offering proceeds that had been allocated for the payment of offering expenses (other than underwriting commissions) not held in the trust account. The value of our sponsors interest in this loan transaction corresponded to the principal amount outstanding under any such loan.
issued to our sponsor.
We have entered into a registration rights agreement with respect to the founder shares, private placement warrants and warrants issued upon conversion of working capital loans (if any), which is described under the heading Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder MattersRegistration Rights.
### Related Party Policy
A related party transaction is any consummated or proposed transaction or series of transactions: (i) in which the company was or is to be a participant; (ii) the amount of which exceeds (or is reasonably expected to exceed) the lesser of $120,000 or 1% of the average of the companys total assets at year end for the prior two completed fiscal years in the aggregate over the duration of the transaction (without regard to profit or loss); and (iii) in which a related party had, has or will have a direct or indirect material interest. Related parties under this policy will include: (i) our directors, nominees for director or officers; (ii) any record or beneficial owner of more than 5% of any class of our voting securities; (iii) any immediate family member of any of the foregoing if the foregoing person is a natural person; and (iv) any other person who maybe a related person pursuant to Item 404 of Regulation S-K under the Exchange Act. Pursuant to the policy, the audit committee will consider (i) the relevant facts and circumstances of each related party transaction, including if the transaction is on terms comparable to those that could be obtained in arms-length dealings with an unrelated third party, (ii) the extent of the related partys interest in the transaction, (iii) whether the transaction contravenes our code of ethics or other policies,
(iv) whether the audit committee believes the relationship underlying the transaction to be in the best interests of the company and its shareholders and (v) the effect that the transaction may have on a directors status as an independent member of the board and on his or her eligibility to serve on the boards committees. The policy will not permit any director or officer to participate in the discussion of, or decision concerning, a related person transaction in which he or she is the related party.
### Director Independence
Item 14.
Audit Fees
During the period from October 12, 2020 (inception) through December 31, 2020, fees for our independent registered public accounting firm were approximately $67,980 for the services Withum performed in connection with our Initial Public Offering and the audit of our December 31, 2020 financial statements included in this Annual Report on Form 10-K.
### Audit-Related Fees.
During the period from October 12, 2020 (inception) through December 31, 2020, our independent registered public accounting firm did not render assurance and related services related to the performance of the audit or review of financial statements.
Tax Fees
During the period from October 12, 2020 (inception) through December 31, 2020, our independent registered public accounting firm did not render services to us for tax compliance, tax advice and tax planning.
### All Other Fees
During the period from October 12, 2020 (inception) through December 31, 2020, there were no fees billed for products and services provided by our independent registered public accounting firm other than those set forth above.
Pre-Approval Policy
### PART IV
Item 15.<|endoftext|>Plus an over-allotment option to purchase up to 975,000 additional shares of Common Stock granted to the underwriters who participated in the Offering, which over-allotment option was exercised by the underwriters in full on February 5, 2021. The net proceeds to the Company from the Offering were $94.1 million, after deducting underwriting discounts and commissions and offering expenses payable by us in connection with the Offering.
Subsequent to December 31, 2020, the Company received funds of approximately $55 million for the exercise of 4.8 million warrants.
Effective February 28, 2021, the maturity of the line of credit agreement was extended to February 28, 2022. All other terms of the line of credit agreement remained unchanged.
Item 9.
None.
### Item 9A. Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act is (1)recorded, processed, summarized, and reported within the time periods specified in the SECs rules and forms and (2)accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, to allow timely decisions regarding required disclosure. As of December31, 2020 (the Evaluation Date), our management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures (as defined in Rules13a-15(e) and 15d-15(e) under the Exchange Act).
Based upon their evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures (as defined in Rules13a-15(e) and15d-15(e) under the Exchange Act) were not effective as of December 31, 2020, due solely to the material weakness in our internal controls over financial reporting associated with the restatement of our consolidated financial statements related to the accounting for our Private Placement Warrants, as described in Note 2 of the notes to the consolidated financial statements included herein. In light of this material weakness, we performed additional analysis as deemed necessary to ensure that our consolidated financial statements were prepared in accordance with U.S. Accordingly, management believes that the consolidated financial statements included in this Annual Report on Form 10-K/A present fairly in all material respects our consolidated financial position, results of operations and cash flows for the period presented.
This Annual Report does not include a report of managements assessment regarding internal control over financial reporting as allowed by the SEC for reverse acquisitions between an issuer and a private operating company when it is not possible to conduct an assessment of the private operating companys internal control over financial reporting in the period between the consummation date of the reverse acquisition and the date of managements assessment of internal control over financial reporting (see Section 215.02 of the SEC Division of Corporation Finances Regulation S-K Compliance& Disclosure Interpretations). As discussed elsewhere in this Annual Report on Form 10-K/A, we completed the Business Combination on October 14, 2020 pursuant to which we acquired Legacy CuriosityStream. Prior to the Business Combination, we were a special purpose acquisition company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, recapitalization, reorganization or similar business combination with one or more businesses. As a result, previously existing internal controls are no longer applicable or comprehensive enough as of the assessment date, as our operations prior to the Business Combination were insignificant compared to those of the consolidated entity post-Business Combination. As a result, management was unable, without incurring unreasonable effort or expense, to complete an assessment of our internal control over financial reporting as of December 31, 2020.
Notwithstanding the foregoing, due solely to the events that led to the restatement of our consolidated financial statements, management has identified a material weakness in internal controls related to the accounting for the Private Placement Warrants, as described in Note 2 of the notes to the consolidated financial statements included herein.
There have been no changes in our internal control over financial reporting, as identified in connection with the evaluation required by Rule 13a-15(d) and Rule 15d-15(d) of the Exchange Act, that occurred during the last fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting, as the circumstances that led to the restatement of our consolidated financial statements described in this Annual Report on Form 10-K/A had not yet been identified. Due solely to the events that led to the restatement of our consolidated financial statements, management has identified a material weakness in internal controls related to the accounting for the Private Placement Warrants, as described in Note 2 of the notes to the consolidated financial statements included herein. Specifically, we expanded and improved our review process for complex securities and related accounting standards, including the determination of the appropriate accounting classification of our financial instruments. We plan to further improve this process by enhancing access to accounting literature and the identification of third-party professionals with whom to consult regarding complex accounting applications. These remediation measures may be time consuming and costly. In addition, there is no assurance that we will be successful in remediating the material weakness.
We have not experienced any material impact to our internal controls over financial reporting despite the fact that certain of our employees are working remotely due to the COVID-19 pandemic. We are continually monitoring and assessing the COVID-19 situation and our internal controls to minimize any impact on their design and operating effectiveness.
### Item 9B. Other Information
None.
Part III
We filed a definitive proxy statement for our 2021 Annual Meeting (2021 Proxy Statement) with the SEC, pursuant to Regulation 14A, on April 29, 2021. Accordingly, certain information required by Part III of this Annual Report on Form 10-K/A has been omitted pursuant to General Instruction G(3) of Form 10-K/A.
Item 10.
### Code of Ethics
Our Board has adopted a written Code of Ethics and Business Conduct applicable to all officers, directors and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. We have posted a current copy of our Code of Ethics and Business Conduct on our website at www.curiositystream.com in the Governance section under Governance Documents. We intend to satisfy the disclosure requirement under Item 5.05 of Form 8-K regarding amendment to, or waiver from, a provision of our Code of Ethics and Business Conduct, as well as NASDAQs requirement to disclose waivers with respect to directors and executive officers, by posting such information on our website at the address and location specified above. The information contained on our website is not incorporated by reference into this Annual Report on Form 10-K/A.
The remaining information required by this item is included in our 2021 Proxy Statement and is incorporated herein by reference.
### Item 11. Executive Compensation
We are an emerging growth company, as defined under the JOBS Act, and are therefore not required to provide certain disclosures regarding executive compensation required of larger public companies or hold a nonbinding advisory vote on executive compensation or obtain stockholder approval of any golden parachute payments not previously approved.
Item 12.
Item 13. Certain Relationships and Related Transaction, and Director Independence
### Item 14.
Part IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Of the three managing members is required to approve an action of our sponsor. Based upon the foregoing, no individual managing member of our sponsor exercises voting or dispositive control over any of the securities held by our sponsor, even those in which he directly holds a pecuniary interest. Accordingly, none of them will be deemed to have or share beneficial ownership of such shares. Each of our officers and directors is a member of our sponsor.
(3)
Does not include any shares held by our sponsor. This individual is a member of our sponsor as described in footnote (2).
(4)
According to Schedule 13G filed with the SEC on February 14, 2020 by HGC Investment Management Inc. (HCG), which serves as the investment manager to HGC Arbitrage Fund LP (the Fund), the address for HCG is 366 Adelaide, Suite 601, Toronto, Ontario M5V 1R9, Canada. HCG is an investment fund manager, portfolio manager and exempt market dealer registered with the Ontario Securities Commission. As a result, HCG may be deemed to have beneficial ownership with respect to the shares held by HCG on behalf of the Fund.
(5)
In connection with the Subscription Agreements, each of Brad Koenig and Jeff Epstein agreed to purchase of 50,000 shares of Apex Common Stock. These numbers are calculated without regard to Mr. Koenigs or Mr. Epsteins membership interest in the Sponsor
The table above does not include the shares of common stock underlying the placement warrants or forward purchase securities held or to be held by our sponsor because these securities are not exercisable within 60 days of March 8, 2021.
### Changes in Control
Not applicable.
Item13.
In June 2019, we issued an aggregate of 7,187,500 founder shares to our sponsor for an aggregate purchase price of $25,000 in cash, or approximately $0.004 per share. The number of founder shares issued was determined based on the expectation that such founder shares would represent 20% of the outstanding shares upon completion of our initial public offering (excluding the placement units purchased by our sponsor in a private placement that closed simultaneously with our initial public offering, and underlying securities). Since the underwriters partially exercised the over-allotment option, the sponsor forfeited 18,750 of its founder shares, which were canceled by the Company.
Simultaneously with the closing of our initial public offering, our sponsor and Cantor purchased an aggregate of 810,000 placement units at a price of $10.00 per unit (657,500 placement units by our sponsor and 152,500 placement units by Cantor), for an aggregate purchase price of $8,100,000. There are no redemption rights or liquidating distributions from the trust account with respect to the founder shares, placement shares or placement warrants, which will expire worthless if we do not consummate a business combination by September 19, 2021.
Commencing on September 16, 2019, we pay First In Line Enterprises, Inc., an affiliate of members of our sponsor, a total of $15,000 per month for office space, utilities and secretarial and administrative support. Upon completion of our initial business combination or our liquidation, we will cease paying these monthlyfees.
Other than the foregoing, no compensation of any kind, including any finders fee, reimbursement, consulting fee or monies in respect of any payment of a loan, will be paid by us to our sponsor, officers, directors or advisors or any affiliate of our sponsor, officers, directors or advisors prior to, or in connection with any services rendered in order to effectuate, the consummation of an initial business combination (regardless of the type of transaction that it is).
Prior to the closing of our initial public offering, our sponsor agreed to loan us up to $300,000 to be used for a portion of the expenses related to our initial public offering pursuant to a promissory note (the Note). The Note wasnon-interestbearing and payable on the earlier of December 31, 2019 or the completion of the initial public offering. The loan was fully repaid on September 19, 2019.
In addition, in order to finance transaction costs in connection with an intended initial business combination, such as the AvePoint Business Combination, our sponsor or an affiliate of our sponsor or certain of our officers and directors may, but are not obligated to, loan us funds as may be required. If we complete an initial business combination, such as the AvePoint Business Combination, we would repay such loaned amounts.
The holders of the founder shares, placement units, and units that may be issued upon conversion of working capital loans (and in each case holders of their component securities, as applicable) have registration rights to require us to register a sale of any of our securities held by them pursuant to a registration rights agreement that was signed on the effective date of the initial public offering. These holders are entitled to make up to three demands, excluding short form registration demands, that we register such securities for sale under the Securities Act. In addition, these holders have piggy-back registration rights to include their securities in other registration statements filed by us.
For more information about the AvePoint Business Combination, the Business Combination Agreement and the other contemplated agreements related to the AvePoint Business Combination, see Item 1. Business.
### Related Party Policy
In addition, our audit committee, pursuant to a written charter that we have adopted, is responsible for reviewing and approving related party transactions to the extent that we enter into such transactions.
To further minimize conflicts of interest, we have agreed not to consummate an initial business combination with an entity that is affiliated with any of our sponsor, officers or directors unless we, or a committee of independent directors, have obtained an opinion from an independent investment banking firm or another independent firm that commonly renders fairness opinions that our initial business combination is fair to our company from a financial point of view. Furthermore, no finders fees, reimbursements or cash payments will be made to our sponsor, officers or directors, or our or their affiliates, for services rendered to us prior to or in connection with the completion of our initial business combination. Our audit committee will review on a quarterly basis all payments that were made to our sponsor, officers or directors, or our or their affiliates.
### Director Independence
Chao and Bell and Ms. Wells are independent directors as defined in the Nasdaq listing standards and applicable SEC rules. Our audit committee is composed solely of independent directors meeting Nasdaqs additional requirements applicable to members of the audit committee.
### Item 14
### Audit Fees
For the year ended December 31, 2020 and for the period from April 5, 2019 (inception) through December 31, 2019, fees for our independent registered public accounting firm were approximately $89,610 and $72,875, respectively, for the services Withum performed in connection with our Initial Public Offering and the audit of our December 31, 2020 and 2019 consolidated financial statements included in this Amendment.
Audit-Related Fees.
For the year ended December 31, 2020 and for the period from April 5, 2019 (inception) through December 31, 2019, our independent registered public accounting firm did not render assurance and related services related to the performance of the audit or review of consolidated financial statements.
### Tax Fees
For the year ended December 31, 2020 and for the period from April 5, 2019 (inception) through December 31, 2019, fees from our independent registered public accounting firm were approximately $6,000 and $0, respectively, for tax compliance, tax advice and tax planning.
All Other Fees
For the year ended December 31, 2020 and for the period from April 5, 2019 (inception) through December 31, 2019, there were no fees billed for products and services provided by our independent registered public accounting firm other than those set forth above.
### Pre-Approval Policy
PART IV
Item15.<|endoftext|>Audit committee, a compensation committee or a nominating committee, or any committee performing a similar function.
As with most small, early stage companies until such time as our Company further develops our business, achieves a revenue base and has sufficient working capital to purchase directors and officers insurance, we do not have any immediate prospects to attract independent directors. Our securities are not quoted on an exchange that has requirements that a majority of our Board members be independent and we are not currently otherwise subject to any law, rule or regulation requiring that all or any portion of our Board of Directors include independent directors, nor are we required to establish or maintain an audit committee or other committee of our Board.
### Director Independence
None of the members of our Board of Directors qualifies as an independent director in accordance with the published listing requirements of the NASDAQ Global Market. The NASDAQ independence definition includes a series of objective tests, such as that the director is not, and has not been for at least three years, one of our employees and that neither the director, nor any of his family members has engaged in various types of business dealings with us. Had our Board of Directors made these determinations, our Board would have reviewed and discussed information provided by the directors and us with regard to each directors business and personal activities and relationships as they may relate to us and our management.
In performing the functions of the audit committee, our board oversees our accounting and financial reporting process. In this function, our board performs several functions. Our board, among other duties, evaluates and assesses the qualifications of the Companys independent auditors; determines whether to retain or terminate the existing independent auditors; meets with the independent auditors and financial management of the Company to review the scope of the proposed audit and audit procedures on an annual basis; reviews and approves the retention of independent auditors for any non-audit services; reviews the independence of the independent auditors; reviews with the independent auditors and with the Companys financial accounting personnel the adequacy and effectiveness of accounting and financial controls and considers recommendations for improvement of such controls; reviews the financial statements to be included in our annual and quarterly reports filed with the Securities and Exchange Commission; and discusses with the Companys management and the independent auditors the results of the annual audit and the results of our quarterly financial statements.
Our board as a whole will consider executive officer compensation, and our entire board participates in the consideration of director compensation. Our board as a whole oversees our compensation policies, plans and programs, reviews and approves corporate performance goals and objectives relevant to the compensation of our executive officers, if any, and administers our equity incentive and stock option plans, if any.
Each of our directors participates in the consideration of director nominees. In addition to nominees recommended by directors, our board will consider nominees recommended by shareholders if submitted in writing to our secretary. Our board believes that any candidate for director, whether recommended by shareholders or by the board, should be considered on the basis of all factors relevant to our needs and the credentials of the candidate at the time the candidate is proposed. Such factors include relevant business and industry experience and demonstrated character and judgment.
### Item 11. Executive Compensation
The following table sets forth the compensation paid by us for the year ended May 31, 2020 and 2019 for our executive officers. The compensation discussed addresses all compensation awarded to, earned by, or paid or named executive officers.
EXECUTIVE COMPENSATION SUMMARY COMPENSATION TABLE
We have no work concurrences with our executive officers. We do not expect going into any occupation understandings until such time as we start gainful operations. Mr. Sudusinghe, Ms. Jensen and Mr. Parrik will not be repaid after the offering and preceding beneficial operations. There is no affirmation that we will ever produce extra incomes from our operations.
The pay examined in this delivers all remuneration recompensed to, earned by, or paid to our named official officers.
There are no other investment opportunity arranges, retirement, annuity, or benefit sharing arrangements for the advantage of our officers and chiefs other than as portrayed in this.
### Long-Term Incentive Plan Awards
We do not have any long-term incentive plans that provide compensation intended to serve as incentive for performance.
Indemnification
Under our Articles of Incorporation and Bylaws of the corporation, we may indemnify an officer or director who is made a party to any proceeding, including a lawsuit, because of his position, if he acted in good faith and in a manner he reasonably believed to be in our best interest. We may advance expenses incurred in defending a proceeding. To the extent that the officer or director is successful on the merits in a proceeding as to which he is to be indemnified, we must indemnify him against all expenses incurred, including attorneys fees. With respect to a derivative action, indemnity may be made only for expenses actually and reasonably incurred in defending the proceeding, and if the officer or director is judged liable, only by a court order. The indemnification is intended to be to the fullest extent permitted by the laws of the State of Nevada. Regarding indemnification for liabilities arising under the Securities Act of 1933, which may be permitted to directors or officers under Nevada law, we are informed that, in the opinion of the Securities and Exchange Commission, indemnification is against public policy, as expressed in the Act and is, therefore, unenforceable.
Item 12.
### Title of class
Name of Beneficial Owner
### Percent of Common Stock
Common Stock
Suneetha Sudusinghe
39.10%
### Common Stock
Cecillia Jensen
22.47%
Item 13.
In addition, the Company s president has agreed to provide production space in Sri Lanka at no charge for the production of goods.
The Company received $359,147 and $200,000 as advances from the Companys secretary, Cecillia Jensen,as of May 31, 2020 and 2019, respectively.
The Company received $3,622 and $3,622 as long-term loan as of May 31, 2020 and 2019, respectively. This loan is interest-free.
The Company's cash in amount of $10,040 as of May 31, 2020, was held by the Company's Secretary.
### Item 14.
Duringfiscal year ended May 31, 2020, we incurredapproximately $21,000 in fees to our principal independent accountants Accell Audit & Compliance, P.A. and $2,000 to our former principal independent accountants Fruci & Associates II, PLLC for professional services rendered in connection with annual audit and quarterly reviews.
Duringfiscal year ended May 31, 2019, we incurredapproximately $11,900 in fees to our former principal independent accountants Audit & Compliance, P.A. for professional services rendered in connection with annual audit and quarterly reviews.
During the fiscal years ended May 31, 2020 and 2019 we incurred no audited related fees, tax related fees, and $0 in all other fees.
### PART IV
Item 15.
(a)
List of documents filed as part of this Report
(1)
### Financial Statements
The financial statements are included under Item 8 of this Annual Report on Form 10-K.
(2)
### Financial Statements Schedules
All schedules have been omitted because the required information is included in the financial statements included under Item 8 of this Annual Report on Form 10-K or the notes thereto, or because it is not required.
(3)
### Exhibits
(b)
Exhibits
31.1
Certification of Chief Executive Officer pursuant to Securities Exchange Act of 1934 Rule 13a-14(a) or 15d-14(a).
31.2
Certification of Chief Financial Officer pursuant to Securities Exchange Act of 1934 Rule 13a-14(a) or 15d-14(a).
### Item 16. Form 10-K Summary
Not applicable.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Mr.Platt on October30, 2020. The principal business address for BCCM and Mr.Platt is Ground Floor, Harbour Reach, La Rue de Carteret, St Helier, Jersey, Channel Islands, JE2 4HR.
(6)
Includes ClassA ordinary shares beneficially held by Sculptor Capital LP, a Delaware limited partnership (SCLP), Sculptor Capital Holding Corp., a Delaware corporation (SCHC), Sculptor Capital Management, Inc., a Delaware corporation (SCM), Sculptor Master Fund, Ltd., a Cayman Islands exempted company (SMF), and Sculptor Special Funding, a Cayman Islands exempted company (SSF), based solely on the Schedule 13G filed by SCLP, SCHC, SCM, SMF, and SSF on January26, 2021. The principal business address for SCLP, SCHC, SCM, SMF, and SSF is 9 West 57th Street, New York, New York 10019.
(7)
Includes ClassA ordinary shares beneficially held by Arena Capital Advisors, LLCCA, a Delaware limited liability corporation (ACA), Arena Short Duration High Yield Fund, LPSeries A, a Delaware limited partnership (AF-A), Arena Short Duration High Yield Fund, LPSeries B, a Delaware limited partnership (AF-B), Arena Short Duration High Yield Fund, LPSeries C, a Delaware limited partnership (AF-C), Arena Short Duration High Yield Fund, LPSeries E, a Delaware limited partnership (AF-E), Arena Capital Fund, LPSeries 8, a Delaware limited partnership (ACF-8), and Arena VII, LLC, a Delaware limited liability company (AVII), based solely on the Schedule 13G filed by ACA, AF-A, AF-B, AF-C, AF-E, ACF-8, and AVII on February4, 2021. The principal business address for CA, AF-A, AF-B, AF-C, AF-E, ACF-8, and AVII is 12121 Wilshire Blvd., Ste. 1010, Los Angeles, CA 90025.
(5)
Includes ClassA ordinary shares beneficially held by Glazer Capital, LLC, a Delaware limited liability company (GC) and Paul J. Glazer, the Managing Member of GC and a United States Citizen (Mr. Glazer), based solely on the Schedule 13G filed by BCCM and Mr.Platt on February16, 2021. The principal business address for GC and Mr.Glazer is 1450 Brickell Avenue, 31st Floor, Miami, FL.
### Changes in Control
None.
Item13.
On September3, 2020, the sponsor paid $25,000, or approximately $0.001 per share, to cover certain of our expenses in consideration of 19,406,250 Class B ordinary shares, par value $0.0001.
These 140,000 shares were not be subject to forfeiture upon the partial exercise of the underwriters overallotment option.
Our sponsor, pursuant to a written agreement, purchased an aggregate of 5,666,667 private placement warrants for a purchase price of $1.50 per whole warrant in a private placement that occurred simultaneously with the closing of our initial public offering. Simultaneously with the closing of the initial public offering, the Company consummated the private placement of 5,666,667 private placement warrants, each exercisable to purchase one ClassA ordinary share at $11.50 per share at a price of $1.50 per private placement warrant, putting our sponsors interest at $8.5 million. On December1, 2020, simultaneously with the issuance and sale of the over-allotment units, the Company consummated the sale of an additional 519,267 private placement warrants to the sponsor, generating gross proceeds of $0.8 million.
As more fully discussed in the section of this Annual Report entitled ManagementConflicts of Interest, if any of our officers or directors becomes aware of a business combination opportunity that falls within the line of business of any entity to which he or she has then-current fiduciary or contractual obligations, he or she will honor his or her fiduciary or contractual obligations to present such opportunity to such entity.
The cost for our use of this space is included in the $10,000 per month fee we pay to an affiliate of our sponsor for office space, administrative and support services, commencing on the date that our securities are first listed on the NYSE.
No compensation of any kind, including finders and consulting fees, has been or will be paid to our sponsor, officers and directors, or their respective affiliates, for services rendered prior to or in connection with the completion of an initial business combination. Our audit committee reviews on a quarterly basis all payments that were made by us to our sponsor, officers, directors or their affiliates and will determine which expenses and the amount of expenses that will be reimbursed.
Prior to the consummation of the initial public offering, our sponsor agreed to loan us up to $300,000 to be used for a portion of the expenses of our initial public offering. These loans are non-interest bearing, unsecured and were due at the earlier of January31, 2021 and the closing of our initial public offering. The loan was fully repaid upon the closing of the initial public offering out of the offering proceeds not held in the trust account.
Up to $4,500,000 of such loans may be convertible into warrants at a price of $1.50 per warrant at the option of the lender. We do not expect to seek loans from parties other than our sponsor, its affiliates, our management team or our board of directors as we do not believe third parties will be willing to loan such funds and provide a waiver against any and all rights to seek access to funds in our trust account.
After our initial business combination, members of our management team and our board of directors who remain with us may be paid consulting, management or other fees from the combined company with any and all amounts being fully disclosed to our shareholders, to the extent then known, in the tender offer or proxy solicitation materials, as applicable, furnished to our shareholders. It is unlikely the amount of such compensation will be known at the time of distribution of such tender offer materials or at the time of a shareholder meeting held to consider our initial business combination, as applicable, as it will be up to the directors of the post- combination business to determine executive and director compensation.
We entered into a registration and shareholder rights agreement pursuant to which our sponsor is entitled to certain registration rights with respect to the private placement warrants, the warrants issuable upon conversion of Working Capital Loans (if any) and the ClassA ordinary shares issuable upon exercise of the foregoing and upon conversion of the founder shares, and, upon consummation of our initial business combination, to nominate three individuals for election to our board of directors, as long as the sponsor holds any securities covered by the registration and shareholder rights agreement.
The audit committee of our board of directors adopted a charter, providing for the review, approval and/or ratification of related party transactions, which are those transactions required to be disclosed pursuant to Item404 of Regulation S-K as promulgated by the SEC, by the audit committee.
Director Independence
Our board of directors has determined that Andreas Beroutsos, William Mitchell, Christopher OConnell and Sidney Taurel are independent directors as defined in the NYSE listing standards.
### Item14.
Audit Fees
Audit fees consist of fees billed for professional services rendered for the audit for the period from September2, 2020 (inception) through December31, 2020 financial statements, reviews of our quarterly financial statements and services that are normally provided by our independent registered public accounting firm in connection with statutory and regulatory filings. The aggregate fees billed by WithumSmith+Brown, PC for audit fees, inclusive of required filings with the SEC for the period from September2, 2020 (inception) through December31, 2020 including the services rendered in connection with our initial public offering, totaled $76,735.
### Audit-Related Fees
Audit-related fees consist of fees billed for assurance and related services that are reasonably related to performance of the audit or review of the period from September2, 2020 (inception) through December31, 2020 financial statements and are not reported under Audit Fees.
Tax Fees
### All Other Fees
For the period from September2, 2020 (inception) through December31, 2020, WithumSmith+Brown, PC did not render any of these other services.
Pre-Approval Policy
Item15.<|endoftext|>In twelve equal monthly installments of $10,000 each with the first installment due on or before June 15, 2020 and continuing thereafter on or before the 15 th day of each succeeding month until paid in full. Shares shall not be issued or deemed purchased until the purchase price has been paid in full. On September 18, 2020 and subsequent to receiving the first $10,000 installment, the Company and the subscriber agreed to terminate the subscription agreement. As a result of this Settlement Agreement and Release, the Company agreed to issue 500,000 shares of common stock at $0.02 per share and release both parties of any further obligations regarding the June 23, 2020 subscription agreement.
On October 15, 2020 we sold 600,000 shares of common stock at a price of $0.03 per share. The sale was conducted through a broker which resulted in net proceeds from the sale of $16,685.
On October 26, 2020 we sold 300,000 shares of common stock to a Director at a price of $.03 per share resulting in total proceeds of $9,000. And on December 31, 2020 we issued an additional 300,000 shares of common stock at $0.045 per share totaling $13,500 to the Director as compensation for Director fees.
On December 11, 2020 we issued 5,000,000 shares of common stock to Nubian Resources, Ltd. under the property option agreement. The shares we valued at $0.03 resulting in a value of $150,000 which has been capitalized as Mineral rights on the accompanying balance sheet.
On December 31, 2020 Mr. John Power, the Companys CEO/CFO agreed to convert advances made to the company totaling $25,000. As a result, we issued 555,556 shares of common stock at a price of $0.045 per share. Also on December 31, 2020, Mr. Power purchased 1,630,000 shares of common stock at a price of $0.03 in the private placement.
On December 31, 2020 Mr. John Gibbs, a related party, purchased 2,470,000 shares at a price of $0.03 in a private placement resulting in proceeds from the sale of $74,100. Also, on December 31, 2020 Mr. Gibbs agreed to a $315,000 reduction of outstanding principal of the Convertible credit facility with the issuance of 7,000,000 of common stock at a price of $0.045.
### Note 9 Commitments and Contingencies
We are subject to various commitments and contingencies as discussed in Note 4 Mineral Rights Excelsior Springs.
Note 10 Share-based Compensation
2004 Equity Incentive Plan
All options previously issued under the 2004 Equity Incentive Plan as well as options issued outside the Plan expired unexercised in 2018.
### Note 11 Related Party Transactions
Conflicts of Interests
Magellan Gold Corporation (Magellan) is a company under common control. Mr. Power is a significant shareholder of both Athena and Magellan and an officer and director of Athena. Mr. Gibbs is a significant shareholder in both Athena and Magellan. Athena and Magellan are both involved in the business of acquisition and exploration of mineral resources.
Silver Saddle Resources, LLC (Silver Saddle) is also a company under common control. Mr. Power and Mr. Gibbs are the owners and managing members of Silver Saddle. Athena and Silver Saddle are both involved in the business of acquisition and exploration of mineral resources.
There exists no arrangement or understanding with respect to the resolution of future conflicts of interest.
### Management Fees Related Parties
The Company is subject to a month-to-month management agreement with Mr. Power requiring a monthly payment of $2,500 as consideration for the day-to-day management of Athena. For each of the years ended December 31, 2020 and 2019, a total of $30,000 was recorded as management fees and are included in general and administrative expenses in the accompanying consolidated statements of operations. At December 31, 2020 and 2019, $96,500 and $76,500, respectively, of management fees due to Mr. Power had not been paid and are included in accrued liabilities related parties on the accompanying consolidated balance sheets.
Accrued Interest Related Parties
At December 31, 2019, Accrued interest - related parties includes accrued interest payable to Mr. Gibbs of $555,872, representing unpaid interest on the convertible credit facility. On December 31, 2020 all accrued and unpaid interest due Mr. Gibbs totaling $668,012 on the convertible credit facility was waived as part of the sale of Athena Minerals transaction discussed in Note 3 Sale of Athena Minerals Inc.
### Interest Expense Related Parties
Total related party interest expense was $112,140 and $106,954 for the years ended December 31, 2020 and 2019, respectively, and is comprised of interest related to the convertible credit facility.
Advances Payable - Related Parties
Mr. Power and Mr. Gibbs have advanced the Company funds generally utilized for day-to-day operating requirements. These advances are non-interest bearing and are generally repaid as cash becomes available. The Company also utilizes credit cards owned by Mr. Power to pay various obligations when an online payment is required, the availability of cash is limited, or the timing of the payments is considered critical.
Power made short-term advances to the Company totaling $59,226 and $41,778 was repaid during the period. In addition, $25,000 was converted to 555,556 shares of common stock leaving an unpaid balance of 21,898 at December 31, 2020 and included in Advances payable related party on the accompanying consolidated balance sheets. During the year ended December 31, 2019, Mr. Power made short-term advances to the Company totaling $31,100 and was repaid $26,650 during the period. At December 31, 2019 a total of $29,450 of advances were outstanding and included in Advances payable related party on the accompanying consolidated balance sheets.
Gibbs made short-term advances to the Company totaling $84,100, of which $10,000 was repaid. The remaining $74,100 was utilized in a private placement of common stock as discussed above in Note 8 Common Stock. At both December 31, 2020 and 2019, no advances from Mr. Gibbs were outstanding.
### Sales of common stock
On December 31, 2020 the Company sold 1,630,000 shares of common stock at $0.03 to Mr. Power under the private placement. In addition, on December 31, 2020 the Company sold 2,470,000 shares of common stock at $0.03 to Mr. Gibbs, also under the private placement. In addition, in October 2020 the Company sold 300,000 shares of common stock to a Director at a price of $0.03 resulting in $9,000 in proceeds.
Common stock issued to a Director
On December 31, 2020 the Company issued 300,000 shares of common stock valued at $0.045 to a Director as compensation for 2020 director fees.
### Note 12 Income Taxes
The Company is current on all its corporate tax filings. Tax year 2020 will be extended if not filed by its due date. Tax returns filed for the years 2017 thru 2019 are open for examination from taxing authorities.
Due to the enactment of the Tax Reform Act of 2018, the corporate tax rate for those tax years beginning with 2018 has been reduced to 21%. Our estimated net operating loss carry forward as of December 31, 2020 is $7,765,477, which may be used to offset future income taxes. Our reconciliation between the expected federal income tax benefit computed by applying the federal statutory rate to our net loss and the actual benefit for taxes on net loss for 2020 and 2019 is as follows:
Our deferred tax assets as of December 31, 2020 and 2019 were as follows:
We have provided a valuation allowance of 100% of our net deferred tax asset due to the uncertainty of generating future profits that would allow us to realize our deferred tax assets.
Due to the change in ownership provisions of the Tax Reform Act of 1986, net operating loss carryover for Federal income tax reporting purposes may be subject to annual limitations. Should a change in ownership occur, use of the net operating loss carryover could be limited in future years.
### Note 13 Subsequent Events
Sales of Common Stock:
In January and February 2020, the Company has completed the sale of 5,000,000 shares of its common stock in this private placement to six third parties including 250,000 shares sold to Mr. John Gibbs, a related party, resulting in total gross proceeds of $150,000.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Recorded. Subsequent to the acquisition date, and not later than one year from the acquisition date, the Company will record any material adjustments to the initial estimate based on new information obtained that would have existed as of the date of the acquisition. Any adjustment that arises from information obtained that did not exist as of the date of acquisition will be recorded in the period the adjustments arise.
Goodwill
Goodwill represents the excess of the purchase price over the estimated fair value of the net assets acquired in a business acquisition. Goodwill is allocated to reporting units and tested for impairment annually as of December 31 each year and when events or changes in circumstances indicate that the carrying value of a reporting unit exceeds its fair value. The Company generally elects to utilize the optional qualitative assessment for goodwill to determine whether it is more likely than not that the carrying value of a reporting unit is higher than its fair value. If it is determined that the fair value is more likely than not to be lower than the carrying value, a quantitative goodwill impairment test is performed by determining the fair value of the reporting unit. The fair value of a reporting unit is determined using either the income approach utilizing estimates of discounted future cash flows or the market approach utilizing recent transaction activity for comparable properties. These approaches are considered level 3 fair value measurements. If the carrying amount of the reporting unit exceeds its fair value, an impairment loss is recognized in an amount equal to that excess, limited to the total amount of goodwill allocated to that reporting unit.
### Revenue Recognition
Following the adoption of ASC 606 on January 1, 2018 using the modified retrospective transition approach the Company now recognizes revenue when control of the promised goods or services is transferred to customers, in an amount that reflects the consideration the Company expects to be entitled to in exchange for those goods or services. In order to achieve this core principle, the Company applies a five-step process. The Company generates its revenue through the sale of grown produce and third-party produce, with standard shipping terms and discounts, and through the production and sale of power. The Companys produce revenue transactions consist of single performance obligations to transfer promised goods at a fixed price. Quantities to be delivered to the customer are determined at a point near the date of delivery through purchase orders they receive from the customer. The Company recognizes revenue when it has fulfilled a performance obligation, which is typically when the customer receives the goods, and their performance obligation is complete. Revenue is measured as the amount of consideration the Company expects to receive in exchange for transferring product. The amount of revenue recognized is reduced for estimated returns and other customer credits, such as discounts and rebates, based on the expected value to be realized. Payment terms are consistent with terms standard to the markets the Company serves. The Company maintains an allowance for doubtful accounts for the loss that would be incurred if a customer were unable to pay amounts due. The Company initially estimates the allowance required at the time of revenue recognition based on historical experience and makes changes to the allowance based on various factors, including changes in the customers financial condition or payment patterns.
Revenue from the sale of cannabis inventories in the course of ordinary activities is measured at the fair value of the consideration received or receivable, net of returns, trade discounts, volume rebates and excise duty. The Company recognizes revenue when it has fulfilled the performance obligation to the customer through the delivery and transfer of control of the promised goods. The amount of revenue recognized is reduced by excise duty, estimated returns and other customer credits, such as discounts and rebates.
Under bill-and-hold arrangements whereby the Company bills a customer for product to be delivered at a later date control typically transfers when the product is still in our physical possession, and title and risk of loss has passed to the customer. Revenue is recognized when all specific requirements for transfer of control under a bill-and-hold arrangement have been met. The Company sells electricity to British Columbia Hydro and Power Authority. Revenues are recognized as the electricity is delivered to/consumed by the customer and is based on contractual usage rates and meter readings that measure electricity consumption. The
Company has elected to exclude taxes collected from its customers assessed by government authorities that are both imposed on and concurrent with a specific revenue-producing transaction from our determination of transaction price.
Revenue received from shipping and handling fees is reflected in net sales. Shipping and handling costs are included in cost of sales as incurred or at the time revenue is recognized for the related goods, whichever comes first.
### Income Taxes
Deferred income taxes are provided to recognize temporary differences between the financial reporting basis and the income tax basis of the Companys assets and liabilities using currently enacted tax rates and laws.
The Company evaluates uncertain income tax positions in a two-step process. The first step is recognition, where the Company evaluates whether an individual tax position has a likelihood of greater than 50% of being sustained upon examination based on the technical merits of the position, including resolution of any related appeals or litigation processes. For tax positions that are currently estimated to have a less than 50% likelihood of being sustained, zero tax benefit is recorded. For tax positions that have met the recognition threshold in the first step, the Company performs the second step of measuring the benefit to be recorded. The actual benefits ultimately realized may differ from the Companys estimates. In future periods, changes in facts and circumstances and new information may require the Company to change the recognition and measurement estimates with regard to individual tax positions. Changes in recognition and measurement estimates are recorded in results of operations and financial position in the period in which such changes occur.
ITEM7A.
QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
### Interest Rate Risk
Interest rate risk is the risk that the fair value or future cash flows of a financial instrument will fluctuate because of changes in market interest rates. The Company is exposed to interest rate risk on its long-term debt, for which the interest rates charged fluctuate based on the 90-day LIBOR rate. If interest rates had been 50 basis points higher, the net income during the years ended December31, 2020 and 2019 would have been lower by $241 and $164, respectively. This represents $241 and $164 in increased interest expense for the years ended December31, 2020 and 2019, respectively.
While we cannot predict our ability to refinance existing debt or the significance of the impact that interest rate movements will have on our existing debt, management evaluates our financial position on an ongoing basis.
### Foreign Exchange Risk
As of December31, 2020 and 2019, the Canadian/U.S. foreign exchange rate was C$1.00 = US$0.7847 and C$1.00 = US$0.7682, respectively. Assuming that all other variables remain constant, an increase of $0.10 in the Canadian dollar would have the following impact on the ending balances of certain statements of financial position items at December31, 2020 and December31, 2019 with the net foreign exchange gain or loss directly impacting net income (loss).
Our exposure to foreign exchange risk and the impact of foreign exchange rates are monitored by the Companys management but generally the Company tries to match its sales (trade receivables) and vendor payments (trade payables) such that the net impact is not material.
ITEM8.
FINANCIAL STATEMEN
The financial statements required by this item are included beginning on page F-1 of this Annual Report on Form 10-K. See also Item 15,<|endoftext|>To ensure that members of our management team maintain their positions with us after the consummation of our Business Combination, although it is possible that some or all of our executive officers and directors may negotiate employment or consulting arrangements to remain with us after our Business Combination.
Item 12.
The following table sets forth information available to us at March 18, 2021 with respect to our ordinary shares held by: each person known by us to be the beneficial owner of more than 5% of our outstanding ordinary shares;
Unless otherwise indicated, we believe that all persons named in the table have shared or sole voting and investment power with respect to all ordinary shares beneficially owned by them. The following table does not reflect record or beneficial ownership of the Private Placement Warrants as they are not exercisable within 60 days of March 18, 2021.
*
Less than 1%.
(1)
This table is based on 43,750,000 ordinary shares outstanding at March 18, 2021, of which 35,000,000 were Class A ordinary shares and 8,750,000 were Class F ordinary shares. Unless otherwise indicated, the business address of each of the entities, directors and executives in this table is 301 Commerce Street, Suite 3300, Fort Worth, Texas, 76102.
(2)
This table does not reflect record or beneficial ownership of the 6,000,000 Private Placement Warrants as they are not exercisable within 60 days of March 18, 2021.
(3)
Our Sponsor holds an aggregate of 8,590,000 Class F ordinary shares.The managing member of our Sponsor is TPG Pace Governance, LLC, a Cayman Islands limited liability company, which is controlled by a committee whose members are David Bonderman, James G. Coulter and Karl Peterson. Messrs. Bonderman, Coulter and Peterson may therefore be deemed to beneficially own the shares held by TPG Pace Beneficial Finance Sponsor, Series LLC. Messrs. Bonderman, Coulter and Peterson disclaim beneficial ownership of the securities held by TPG Pace Beneficial Finance Sponsor, Series LLC except to the extent of their pecuniary interest therein. The address of each of the entities and individuals in this footnote is 301 Commerce St., Suite 3300 Fort Worth, 76102.
Our Initial Shareholders beneficially own 20% of our issued and outstanding ordinary shares and have the right to elect all of our directors prior to our Business Combination as a result of holding all of the Founder Shares. In addition, because of their ownership block, our Shareholders may be able to effectively influence the outcome of all other matters requiring approval by our shareholders, including amendments to our amended and restated memorandum and articles of association and approval of significant corporate transactions.
On the Close Date, we consummated our Public Offering of 35,000,000 Units at a price of $10.00 per Unit generating gross proceeds of $350,000,000 before underwriting discounts and expenses. Each Unit consists of one Class A ordinary share, par value $0.0001 per share, and one-fifth of one Warrant. Prior to the Close Date, we completed the sale of the Private Placement Warrants.
Our
Sponsor and our executive officers and directors are deemed to be our promoters as such term is defined under the federal securities laws. See Item 13.
Item 13.
### Founder Shares
The Founder Shares are identical to the Public Shares included in the Units sold in the Public Offering except that the Founder Shares are subject to certain rights and transfer restrictions, as described in further detail below, and are automatically converted into Class A ordinary shares at the time of our Business Combination on a one-for-one basis, subject to adjustment pursuant to the anti-dilution provisions contained in the Companys amended and restated memorandum and articles of association.
The Shareholders have agreed not to transfer, assign or sell any Founder Shares during the Lock Up Period.
Prior to the Close Date, our Sponsor purchased 6,000,000 Private Placement Warrants at a price of $1.50 per warrant, or $9,000,000. Each Private Placement Warrant entitles the holder to purchase one ClassA ordinary share for $11.50 per share.
If the Company does not complete a Business Combination within 24 months from the Close Date, the proceeds of the sale of the Private Placement Warrants will be used to fund the redemption of the Companys Public Shares, subject to the requirements of applicable law, and the Private Placement Warrants will expire worthless.
### Registration Rights
Holders of the Founder Shares and Private Placement Warrants hold registration rights pursuant to a registration rights agreement. The holders of these securities are entitled to make up to three demands that the Company register under the Securities Act the Private Placement Warrants, and the Class A ordinary shares underlying the Private Placement Warrants and Class F ordinary shares.
Related Party Notes
Between July 11, 2019 and the Close Date, our Sponsor loaned us $300,000 in unsecured promissory notes. The funds were used to pay up front expenses associated with our Public Offering. These notes were non-interest bearing and were repaid in full to our Sponsor at the Close Date.
Our Sponsor, executive officers and directors, or any of their respective affiliates, will be reimbursed for any out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential target businesses and performing due diligence on suitable Business Combination opportunities.
In the event that our Business Combination does not close, we may use a portion of the working capital held outside the Trust Account to repay such loaned amounts but no proceeds from our Trust Account would be used for such repayment. Up to $1,500,000 of such loans may be convertible into warrants of the post Business Combination entity at a price of $0.50 per warrant at the option of the lender.
After our Business Combination, members of our management team who remain with us may be paid consulting, management or other fees from the combined company with any and all amounts being fully disclosed to our shareholders, to the extent then known, in the tender offer or proxy solicitation materials, as applicable, furnished to our shareholders.
### Independent Financial Advisory Services
In connection with our Public Offering, TPG Capital BD, LLC, an affiliate of the Company, acted as our independent financial advisor as defined under FINRA Rule 5110(j)(9), to provide independent financial consulting services, consisting of a review of deal structure and terms and related structuring advice in connection with our Public Offering, for which it received a fee of $647,500, which was paid on the Close Date. TPG Capital BD, LLC was engaged to represent our interests only and is independent of the underwriters.
Policy Review Engagement
In December 2020, the board of directors authorized the Company to engage Y Analytics, an affiliate of the Company, to evaluate the Companys ESG policies.
###
On the Close Date, we entered into an agreement to pay $50,000 a month for office space, administrative and support services to an affiliate of our Sponsor, and will terminate the agreement upon the earlier of a Business Combination or our liquidation.
Director Independence
Our Board of Directors has determined that Chad Leat, Kathleen Philips, Nancy Mahon and Kneeland Youngblood are independent directors under applicable SEC and NYSE rules.
Business Recent Developments.
### Item 14. Principal Accoun ting Fees and Services.
(1)
Audit Fees. Audit fees consist of fees billed for professional services rendered for the audit of our year-end consolidated financial statements and services that are normally provided by our independent registered public accounting firm in connection with statutory and regulatory filings.
(2)
Audit-Related Fees. Audit-related fees consist of fees billed for assurance and related services that are reasonably related to performance of the audit or review of our year-end consolidated financial statements and are not reported under Audit Fees.
(3)
Tax Fees.
(4)
All Other Fees. All other fees consist of fees billed for all other services including permitted due diligence services related to a potential business combination.
### PART IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
AST SpaceMobile, Inc., formerly known as New Providence Acquisition Corp. (the Company, we, our or us), is filing this Amendment No. 1 (this Amendment) to amend our Annual Report on Form 10-K for the year ended December 31, 2020, originally filed with the Securities and Exchange Commission (the SEC), on March 1, 2021, (the Original Filing and, as amended by this Amendment, this Report), to restate our financial statements and related footnote disclosures as of December 31, 2020 and 2019 and for year ended December 31, 2020 and for the period from May 28, 2019 (inception) through December 31, 2019, and the interim periods ended September 30, 2020 and 2019, March 31, 2020, and June 30, 2020, as well as the financial statements as of September 13, 2019 (collectively Affected Periods).
On April 12, 2021, the Acting Chief Accountant and Acting Director of the Division of Corporation Finance of the SEC issued a Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies (SPACs) (the SEC Staff Statement). The SEC Staff Statement sets forth the conclusion of the SECs Office of the Chief Accountant that certain provisions included in the warrant agreements entered into by many special purpose acquisition companies require such warrants to be accounted for as liabilities measured at fair value, rather than as equity securities, with changes in fair value during each financial reporting period reported in earnings. In light of the new SEC Staff Statement, on April 12, 2021, the Companys Chief Executive Officer (the Principal Executive Officer) and Chief Financial Officer (the Principal Financial Officer) reviewed the warrant agreements governing the Companys outstanding warrants, and, after discussion with management and the Companys independent registered public accounting firm, Marcum LLP (Marcum), determined that the following financial statements previously filed with the SEC should no longer be relied upon: (1) the financial statements included in the Original Report, and (2) the condensed financial statements included in our Quarterly Reports for the Affected Periods. Similarly, the related press releases, the Report of Independent Registered Public Accounting Firm on the financial statements as of December 31, 2020 and 2019, for the year ended December 31, 2020 and the stockholder communications describing the relevant portions of our financial statements for these periods that need to be restated should no longer be relied upon.
As discussed in further detail below and in Note 2 Restatement of Financial Statements to the accompanying financial statements, the restatement is the result of a misapplication of the guidance on accounting for our outstanding warrants, which was brought to light by the SEC Staff Statement. Based on Accounting Standards Codification (ASC) 815-40, Contracts in Entitys Own Equity (ASC 815-40), warrant instruments that do not meet the criteria to be considered indexed to an entitys own stock or that provide for net cash settlement that is outside of the control of the entity in which not all of the holders of the shares underlying the contract also would receive cash shall be initially classified as derivative liabilities at their estimated fair values, regardless of the likelihood that such instruments will ever be settled in cash. We evaluated the impact of this misapplication on the financial statements listed above and concluded that the impact was material to those financial statements from a quantitative standpoint. Consequently, we have restated the financial statements identified above. All amounts in this Report affected by the restatement adjustments reflect such amounts as restated.
On September 13, 2019, we consummated an initial public offering (the IPO) in which we issued 20,000,000 units (the Units), each of which consists of one share of Class A Common Stock and one half of one warrant (the Public Warrants) for $10 per Unit for total gross proceeds of $200 million. Simultaneously, with the closing of the IPO, we consummated the sale of 5,500,000 private placement warrants (the Private Warrants and, together with the Public Warrants, the Warrants) at a price of $1.00 per warrant for total gross proceeds of $5.5 million. On September 19, 2019, in connection with the underwriters full exercise of their over-allotment options, we consummated the sale of an additional 3,000,000 Units and the sale of an additional 600,000 Private Warrants for gross proceeds of $30.6 million. In the aggregate, there were 11,500,000 Public Warrants and 6,100,000 Private Warrants issued between the two closings. Each whole Public and Private Warrant is exercisable to purchase one share of Class A Common Stock at a price of $11.50 per share. The cumulative effect of the change in the accounting treatment of the Warrants pursuant to the SEC Staff Statement and the resulting restatement and revision of our financial statements is a $55,689,024 increase in our accumulated deficit as of December 31, 2020. The material terms of the Warrants are more fully described in Note 10 Warrant Liabilities.
The Principal Executive Officer and Principal Financial Officer, together with management, determined that the financial statements in the Affected Periods should be restated to reflect the Warrants issued in September 2019 as a liability, the change in the accounting treatment for the Warrants and the resulting restatement and revision of our financial statements including (i) the reclassification of the Warrants from additional paid-in capital to warrant liabilities recorded at fair value within our balance sheets, (ii) the recognition of the changes in the fair value of the warrant liabilities in our statements of operations and corresponding adjustments to accumulated deficit and retained earnings for each applicable period, and (iii) the recognition of Class A Common Stock subject to possible redemption at its redemption value each period. There was no impact on revenues, operating expenses or operating loss for any period as the change in fair value of the warrant liabilities is presented within other income (expense) and not as a component of operating loss in our statements of operations for each applicable period. The restatement of the financial statements for the Affected Periods had no impact on our liquidity or cash position. An explanation of the impact on our financial statements is contained in Note 2 Restatement of Financial Statements to the accompanying financial statements.
As all material restatement information will be included in this Report, we do not intend to amend our Annual Report on Form 10-K for the year ended December 31, 2019 or any of our previously filed Quarterly Reports on Form 10-Q, or balance sheet on Form 8-K for the Affected Periods. Accordingly, investors and others should rely only on the financial information and other disclosures regarding the periods described above in this Report and in future filings with the SEC (as applicable) and should not rely on any previously issued or filed reports, press releases, corporate presentations or similar communications relating to the Affected Periods.
In connection with the restatement, management has re-evaluated the effectiveness of the Companys disclosure controls and procedures and internal control over financial reporting as of December 31, 2020. As a result of that assessment and in light of the SEC Staff Statement, management has concluded that the Companys disclosure controls and procedures and internal controls over financial reporting were not effective as of December 31, 2020, due to a material weakness in internal control over financial reporting related to the accounting for equity instruments. For a discussion of managements consideration of our disclosure controls and procedures, internal controls over financial reporting, and the material weaknesses identified, see Part II, Item 9A, Controls and Procedures of this Report.
Items Amended in this Amendment
Part I, Item 1A. Risk Factors is amended to add certain additional risk factors. In addition each of the following items are amended and restated in their entirety in this Report: (i) Part II, Item 7. (ii) Part II, Item 8. (iii) Part II, Item 9A. Controls and Procedures; and (iv) Part IV, Item 15.<|endoftext|>Is included as rent expense. At December 31, 2020 and 2019, there were no amounts owed to the related party.
Convertible Promissory Notes and Series B Convertible Preferred Stock Financing
As discussed in Note 7 and Note 8, the convertible promissory notes and Series B were issued to certain existing shareholders. Additionally, those same shareholders participated in the private placement offering as described in Note 8 by purchasing an aggregate of 6,336,666 shares of the Companys common stock at a purchase price of $3.00 per share.
13. Employee Benefit Plan
The Company has a 401(k) plan to provide defined contribution retirement benefits for all eligible employees. Participants may contribute a portion of their compensation to the plan, subject to the limitations under the Internal Revenue Code. The Companys contributions to the plan are at the discretion of the Board of Directors. During the years ended December 31, 2020 and 2019 the Company made contributions of $81,673 and $68,914, respectively, to the plan.
14. Subsequent Events
### Listing on the OTCQX Market
On March 29, 2021, shares of the Companys common stock were approved for trading on the OTCQX Best Market under the symbol AUGX.
Loan and Security Agreement
On March 25, 2021, the Company entered into a Loan and Security Agreement (the Loan Agreement) with Eastward Fund Management, LLC, as the lender (Lender) to establish a loan facility which provides for borrowings in the aggregate principal amount of up to $17.0 million which are available to be drawn in two tranches. The first tranche of $15.0 million will be funded within five business days of the date of the Loan Agreement. The second tranche of $2.0 million is available, at the Companys request, between October 30, 2021 and November 30, 2021, provided the Company achieves certain revenue and EBITDA thresholds. The Company is required to pay only interest during the first eighteen months after funding of the tranche and thereafter, the Company shall repay such loan amount in thirty consecutive monthly installments of principal plus accrued interest. The loan facility bears an annual interest rate of the prime rate as published in the Wall Street Journal, subject to a floor 3.25%, plus 8.75%. On the final repayment date, Company is also obligated to pay a final payment fee equal to seven and one-half percent (7.5%) of the amount of the applicable advance. Outstanding borrowings under the Loan Agreement are secured by a first priority lien on substantially all of the personal property assets of the Company, including the Companys intellectual property.
Proceeds from the Loan Agreement were used to pay off the note payable and subordinated note payable (Note 7). Issuance costs associated with the Loan Agreements are estimated at $0.2 million.
In connection with the Loan Agreement, the Company issued the Lender warrants to purchase up to 346,500 shares (increasing to 392,700 shares upon funding of the second tranche) shares of common stock that were immediately vested with an exercise price of $3.00 per share and a term of the earlier of i) March 24, 2031 and ii) the third anniversary of the Companys listing on Nasdaq. The Warrant also provides that any shares issued pursuant to the Warrant are entitled to the registration rights afforded to holders of the Companys stock, all as set forth in those certain outstanding Registration Rights Agreement dated as of October 5, 2020.
The Company and Lender also entered into a Co-Investment Agreement, which grants to the Lender and its affiliates a right to purchase in the Companys future private equity financings up to a total $3,000,000 (if the Company only draws the first tranche) or $3,400,000 (if the Company draws the second tranche) at the same per share purchase price and terms as other investors in such private equity financings.
### Stock Option Grants
In January and March 2021, the Company granted 540,126 and 1,843,489 stock options, respectively, with a weighted average exercise price of $3.00.
ITEM 9A. CONTROLS AND PROCEDURES
Under the supervision of and with the participation of our management, including our principal executive officer and our principal financial officer, we conducted an evaluation of the effectiveness of our disclosure controls and procedures as of December 31, 2020, the end of the period covered by this Form 10-K. The term disclosure controls and procedures, as set forth in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to provide reasonable assurance that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms promulgated by the SEC.
In designing and evaluating our disclosure controls and procedures, management recognizes that disclosure controls and procedures, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the disclosure controls and procedures are met. Additionally, in designing disclosure controls and procedures, our management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible disclosure controls and procedures. Because of the inherent limitations in a control system, misstatements due to error or fraud may occur and not be detected.
Based on this evaluation, management concluded that our disclosure controls and procedures were effective as of December 31, 2020.
Internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of consolidated financial statements in accordance with GAAP. providing reasonable assurance that receipts and expenditures of company assets are made in accordance with management authorization; and providing reasonable assurance that unauthorized acquisition, use or disposition of company assets that could have a material effect on our consolidated financial statements would be prevented or detected on a timely basis.
As a result of becoming a public company, we are required, under Section 404 of the Sarbanes-Oxley Act, to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting beginning with this Form 10-K. This assessment includes disclosure of any material weaknesses identified by our management in our internal control over financial reporting. The SEC defines a material weakness as a deficiency, or combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of a companys annual or interim consolidated financial statements will not be detected or prevented on a timely basis. Management conducted an evaluation of the effectiveness, as of December 31, 2020, of our internal control over financial reporting based on the framework in
Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013). Based on this evaluation, management concluded that our internal control over financial reporting was effective as of December 31, 2020.
As an emerging growth company under the JOBS Act, we are exempt from the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002. As a result, our independent registered public accounting firm has not audited or issued an attestation report with respect to the effectiveness of our internal control over financial reporting as of December 31, 2020.
During the quarter ended December 31, 2020, there have been no changes in our internal control over financial reporting, as such term is defined in Rules 13a-15(f) and 15(d)-15(f) promulgated under the Exchange Act, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
ITEM 15.
#
This certification is deemed not filed for purposes of section 18 of the Exchange Act, or otherwise subject to the liability of that section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
The lease commenced on July21, 2017 for a
15-year term, and rent payments were approximately $193,460, $25,500, $231,000 and $235,600 for the nine months ended September30, 2020 and the years ended December31, 2017, 2018 and 2019, respectively. Ms.Berger is a principal of WBS Equities, LLC, which is the Manager of Mosaic Real Estate Sparks, LLC. Additionally, Mosaic Real Estate Sparks, LLC is owned in part by Ms.Berger (through a revocable trust) and Mr.Georgiadis (through a wholly-owned entity).
On June12, 2020, Mosaic Real Estate Joliet, LLC sold a building located at 2903 Colorado Avenue, Joliet, Illinois to a wholly-owned subsidiary of the Company, which, until that date it had leased to 3C Compassionate Care Center, LLC, which operates a dispensary in the building. The purchase price was $1,814,000, including transaction costs, and was completed following the Companys exercise of a purchase option for the property. Prior to this purchase, we were party to a lease for this property with Mosaic Real Estate Joliet, LLC that commenced on January23, 2019 for a15-yearterm, and rent payments were approximately $128,700 for the nine months ended September30, 2020 and $200,170 for the year ended December31, 2019. Ms.Berger was a principal of South Creek 15, LLC, which is the Manager of Mosaic Real Estate Joliet, LLC, until she resigned from that position on May20, 2020. Additionally, Mosaic Real Estate Joliet, LLC is owned in part by Ms.Berger (through a revocable trust).
Mosaic Real Estate Ocala, LLC owns a building located at 5401 Northwest 44 th
Avenue, Ocala, Florida and leased to GTI Florida, LLC, to operate a cultivation and processing facility in the building. The lease commenced on March19, 2019 for a
15-year term, and rent payments were approximately $428,200 for the nine months ended September30, 2020 and $393,530 for the year ended December31, 2019. Ms.Berger is a
Co-Manager of Mosaic Real Estate Ocala, LLC. Additionally, Mosaic Real Estate Ocala, LLC is owned in part by Ms.Berger (through a revocable trust).
Durango Teco Partners, LLC owns a building located at 6410 South Durango Drive, Las Vegas, Nevada and leased to Essence Henderson, LLC, a subsidiary of Integral Associates, LLC, to operate an Essence dispensary in the building. The lease commenced on June27, 2020 for a
10-year term, and rent payments were approximately $59,700 for the nine months ended September30, 2020. Our former director, Alejandro Yemenidjian, who resigned from the Board effective December31, 2020, owns 50% of Armenco Capital LLC, which owns 50% of Durango Teco Partners, LLC.
For the three and nine months ended September30, 2020 the Company recorded lease expense of $353,535 and $1,146,246, respectively, associated with these lease arrangements. For the three and nine months ended September30, 2019, we recorded lease expense of $321,793 and $789,783, respectively, associated with these lease arrangements.
### Notes.
On May21, 2019, as amended on November19, 2019, we closed a $105million senior secured non-brokered private placement financing which bears interest of 12% per annum and matures on May22, 2023, which we refer to as the Note Purchase Agreement. Separately, pursuant to the terms of the Note Purchase Agreement, we issued warrants to the Note holders, some of whom were related parties. As of September30, 2020 and December31, 2019:
KP Capital, LLC, which is owned by Mr.Kovler, held $290,334 of the original private placement debt amount, and related warrants valued at $48,017 and $39,894, respectively;
AG Funding Group, LLC, which is owned by Andrew Grossman, our Executive Vice President of Capital Markets, held $289,876 of the original private placement debt amount, and related warrants valued at $47,931 and $39,829, respectively;
ABG, LLC, which is owned jointly by Mr.Georgiadis and our director William Gruver, held $275,000 of the original private placement debt amount, and related warrants valued at $45,475 and $37,788, respectively; and
Three One Four Holdings, LLC, which is owned by Mr.Georgiadis, held $77,300 of the original private placement debt amount, and related warrants valued at $12,779 and $10,620, respectively.
### Springbig, Inc.
In June 2019, GTI Core, LLC entered into an agreement with Springbig, Inc. for Springbig Inc.s loyalty and digital communications platform for retail organization. Payments to Springbig Inc. totaled approximately $378,524, $2,800, $35,400 and $155,300 for the nine months ended September30, 2020 and the years ended December31, 2017, 2018 and 2019, respectively. The parties agreed to expand the services under this arrangement in March 2020. Springbig Inc. is owned in part by Mr.Kovler, Mr.Georgiadis and Mr.Gruver. Mr.Kovler is also a director of Springbig Inc.
### Employmen t.
Alejandro Yemenidjian, a director of the Company from June 2019 to December 2020, is the father of Armen Yemenidjian, who served as our President from June 2019 to April 2020. Alejandro Yemenidjian was also employed as our Managing Director of Integral Associates from June29, 2019 until his resignation from that role on April 6, 2020. In addition to his compensation for his role on our Board, with respect to his employment he received salary of $138,456 in fiscal 2020.
Item14.
MGO has served as our independent registered public accounting firm since October17, 2019. The engagement of MGO was approved by the Audit Committee and the Board. MGO completed an audit of the Company for the year ended December31, 2019 and 2020.
Aggregate fees billed by our independent auditors, MGO, for the years ended December31, 2020 and December31, 2019 are detailed in the table below.
(1)
Fees for audit service on an accrued basis.
(2)
(3)
(4)
Our Audit Committee has established a policy of reviewing, in advance, and either approving or not approving, all audit, audit-related, tax and other non-audit services that our independent registered public accounting firm provides to us. The Audit Committee has delegated pre-approval responsibility to the Chair of the Audit Committee with respect to non-audit related fees and services.
Our Audit Committee has determined that the provision of the services as set out above is compatible with the maintaining of MGOs independence in the conduct of their auditing functions.
### Audit Committee Report
The material in this report is not soliciting material, is not deemed filed with the SEC, and is not to be incorporated by reference into any filing by Green Thumb Industries Inc. under the Securities Act of 1933, as amended, or the Exchange Act.
The primary purpose of the Audit Committee is to assist the Companys Board in fulfilling its responsibilities for oversight of financial, audit and accounting matters. The Audit Committee reviews the financial reports and other financial information provided by the Company to regulatory authorities and its shareholders, as well as reviews the Companys system of internal controls regarding finance and accounting, including auditing, accounting and financial reporting processes.
The Audit Committee has discussed with Macias Gini& OConnell LLP (MGO), the Companys independent registered public accounting firm, the matters required to be discussed under applicable auditing standards, including Auditing Standard No.1301. In addition, the Audit Committee discussed with MGO its independence, and received from MGO the written disclosures and the letter required by applicable requirements of the Public Company Accounting Oversight Board. Finally, the Audit Committee discussed with MGO, with and without management present, the scope and results of MGOs audit of such financial statements.
Based on these reviews and discussions, the Audit Committee recommended to the Board that such audited financial statements be included in the Companys Annual Report on
William Gruver (Chair)
Westley Moore
### Glen Senk
Part IV
Item15.
(a)
The consolidated financial statements and financial statement schedule filed as part of the Original
10-K are listed in the Index accompanying the Consolidated Financial Statements in the Original
10-K.
(b)
The exhibits listed in Part IV, Item 15(b) of the Original
10-K and the exhibits listed below are filed with, or incorporated by reference into, this report.
31.3
13a-14(a) of the Exchange Act
31.4
13a-14(a) of the Exchange Act<|endoftext|>### EXPLANATORY NOTE
3) amends the annual report on Form 10-K of Repay Holdings Corporation for the fiscal year ended December 31, 2020, filed with the Securities and Exchange Commission (the SEC) on March 1, 2021, as amended on April 23, 2021 and May 10, 2021 (as amended, the 2020 Form 10-K). The purpose of Amendment No. 3 is to amend Part II, Item 9A - Controls and Procedures, to clarify the conclusion of management regarding the effectiveness of the Companys internal controls as of December 31, 2020.
In accordance with Rule 12b-15 under the Exchange Act, the Company is including in this Amendment No. 3 an amended Part IV, Item 15 to include currently dated certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 from the Companys principal executive officer and principal financial officer. 3, paragraph 3 of the certifications has been omitted. Similarly, we are not including the certifications under Section 906 of the Sarbanes-Oxley Act of 2002 as no financial statements are being filed with this Amendment No. 3.
This Amendment No. 3 speaks as of the original filing date of the 2020 Form 10-K (unless otherwise noted or as the context otherwise requires) and reflects only the changes to the cover page, Item 9A of Part II and in the exhibit index in Item 15 of Part IV. No other information included in the 2020 Form 10-K has been modified or updated in any way. 3. 3 should be read in conjunction with the 2020 Form 10-K and the Companys other SEC filings.
PART II
### ITEM 9A. CONTROLS AND PROCEDURES
Disclosure controls are procedures that are designed with the objective of ensuring that information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act of 1934, is recorded, processed, summarized, and reported within the time period specified in the SECs rules and forms. Pursuant to Rule 13a-15(b) under the Securities Exchange Act of 1934, we carried out an evaluation, with the participation of our management, including our Chief Executive Officer and Executive Vice President and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures (as defined under Rule 13a-15(e) under the Securities Exchange Act of 1934) as of the end of the period covered by this report. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were not effective as of December 31, 2020, solely as a result of the material weakness in internal controls related to the restatement described below.
Internal control over financial reporting is defined in Rules 13a-15(f) and 15d-15(f) promulgated under the Exchange Act as a process designed by, or under the supervision of, our principal executive and principal financial and accounting officers and effected by our board of directors, management and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP. Our internal control over financial reporting includes those policies and procedures that: pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect our transactions and dispositions of our assets; GAAP, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors;
During the year ended December 31, 2020, the Company identified inappropriate system access controls over the contract maintenance process.These controls were not designed to prevent or detect unauthorized changes to contract information, which ultimately led the Company to conclude that this was a material weakness.The Company remediated this control matter in the fourth quarter of 2020 through the implementation of additional detective, compensating controls over all entries to contract information, and we have tested these enhancements to our internal controls for operating effectiveness.As of December 31, 2020, the aforementioned material weakness was considered to be remediated and did not lead to any adjustments to previously reported or current financial information.
Our management, with the participation of our principal executive and principal financial and accounting officers, assessed the effectiveness of our internal control over financial reporting as of December 31, 2020. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in its 2013 Internal Control Integrated Framework. Based on this assessment, our management concluded that, at the time of the filing of the original 2020 Form 10-K, as of December 31, 2020, our internal control over financial reporting was effective based on those criteria. Subsequently, our management has concluded that our internal controls over financial reporting was not effective as of December 31, 2020 due to a material weakness in our internal controls related to the restatement, as further described below.
Our internal control over financial reporting, specifically the review controls over the evaluation of complex, non-routine transactions, were not sufficient to detect the proper accounting and reporting for the public warrants and private placement warrants previously issued by Thunder Bridge (collectively, the Warrants), which were outstanding and recorded on our consolidated financial statements at the time of the Business Combination. Management identified this error when the Securities and Exchange Commission issued a statement (the Statement) on the accounting and reporting considerations for warrants issued by special purpose acquisition companies on April 12, 2021. The Statement addresses certain accounting and reporting considerations related to warrants of a kind similar to the Warrants. This control deficiency resulted in the Company having to restate certain of our audited consolidated financial statements contained in our Annual Report on Form 10-K for the year ended December 31, 2020 and the quarterly periods included therein, and if not remediated, could result in a material misstatement to future annual or interim consolidated financial statements that would not be prevented or detected. Notwithstanding this material weakness, management has concluded that our audited financial statements included in the 2020 Form 10-K are fairly stated in all material respects in accordance with GAAP for each of the periods presented therein.
The effectiveness of our internal control over financial reporting as of December 31, 2020 has been audited by Grant Thornton LLP, an independent registered public accounting firm, as stated in their Report of Independent Registered Certified Public Accounting Firm on Internal Control Over Financial Reporting which is included with the Financial Statements in Part II, Item 8 of the 2020 Form 10-K and is incorporated herein by reference.
Other than the remediation efforts relating to the system access material weakness described above, during the quarter endedDecember31, 2020, no change in our internal controls over financial reporting (as defined in Rule 13a-15(f) under the Act) occurred that has materially affected, or is reasonably likely to materially affect, our internal controls over financial reporting.
As the circumstances that led to the restatement described in the 2020 Form 10-K had not yet been identified at December 31, 2020, remediation actions relating to the restatement material weakness were not started until after the quarter ended December 31, 2020. Since the restatement, management has implemented remediation steps to address that material weakness and to improve our internal control over financial reporting.
PART IV
ITEM 15.
(1)
### Financial Statements
The following Consolidated Financial Statements of Repay Holdings Corporation and the Report of the Independent Registered Public Accounting Firm are included in Part II, Item 8 of the 2020 Form 10-K.
(2)
All financial statement schedules have been omitted as the information is not required under the related instruction or is not applicable or because the information required is already included in the financial statements or the notes to those financial statements.
(3)
Exhibits
*
Filed herewith.
**
### Previously filed.
+
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
And the Atomic Affiliate for services performed and costs incurred on behalf of Hims. There was no accounts payable balance with Atomic Labs and the Atomic Affiliate as of December 31, 2020 and the accounts payable balance was less than $0.1 million as of December 31, 2019.
During the year ended December 31, 2019, Ms. Dudum had total cash compensation, including base salary, bonus and other compensation, of $139,298. Ms. Dudum resigned from her employment with Hims in January 2020 and, in exchange for executing a general release and waiver of claims against Hims, received a lump-sum cash payment of $200. In connection with the commencement of her employment, in April 2018 Ms. Dudum was granted an option to purchase 175,000 shares of Hims Class A Common Stock, of which she had vested into 72,916 shares as of her resignation date, all of which she exercised.
(together, Cherubic Ventures). purchased 3,971,405 shares of Hims Series A preferred stock, par value $0.000001 per share (Series A Preferred Stock) in a transaction with another stockholder of Hims. This stockholder purchased 1,190,901 shares of Hims Series B preferred stock, par value $0.000001 per share (Series B Preferred Stock) for aggregate consideration equal to approximately $1.0 million. Cherubic Ventures SSG VII Ltd. Purchased from Hims 720,460 shares of Series C Preferred Stock and a warrant to purchase 72,046 shares of Series C Preferred Stock at $0.01 per share for consideration equal to approximately $2.5 million. Mr. Dudum is also an advisor to Cherubic Ventures.
Hims & Hers entered into, and expects to continue to enter into, indemnification agreements with its directors, executive officers and other employees as determined by the Board.
Each indemnification agreement provides for indemnification and advancements by Hims & Hers of certain expenses and costs, if the basis of the indemnitees involvement was by reason of the fact that the indemnitee is or was a director, officer, employee or agent of Hims & Hers or any of its subsidiaries or was serving at Hims & Hers request in an official capacity for another entity, to the fullest extent permitted by the laws of the state of Delaware.
### Miscellaneous
### Class B Ordinary Shares
OAC consummated its Initial Public Offering on July 22, 2019. In April 2019, prior to OACs Initial Public Offering, OAC issued 4,312,500 Class B ordinary shares to its Sponsor, in exchange for a capital contribution of $25,000, or approximately $0.006 per share. On June 26, 2019, OAC effected a pro rata share capitalization, resulting in an increase in the total number of outstanding Class B ordinary sharesfrom 4,312,500 to 5,031,250.
Concurrently with the execution of the Merger Agreement, OAC, the Sponsor and Hims entered into a sponsor agreement (the Sponsor Agreement), pursuant to which the Sponsor, among other things, surrendered and forfeited for no consideration 25.0% of the Class B ordinary shares for no consideration in connection with the consummation of the Business Combination. A number of securities equal to such surrendered and forfeited Class B ordinary shares was issued to Hims Equityholders as Class A Common Stock (or equivalent equity awards in respect thereof) in the Business Combination.
A number of securities equal to such surrendered and forfeited private placement warrants was issued to Hims Equityholders as warrants to acquire shares of Class A Common Stock (or equivalent equity awards in respect thereof) in the Business Combination.
### Related Party Loans
On March 2, 2019, Sponsor agreed to loan OAC an aggregate of up to $300,000 to cover expenses related to OACs Initial Public Offering pursuant to an expense reimbursement agreement (the Expense Reimbursement Agreement). On November 18, 2019, OAC repaid this advance in full.
Effective June 4, 2020, OAC entered into an agreement to pay monthly expenses of $10,000 for office space, administrative services, and support services to an affiliate of the Sponsor.
OAC has previously entered into a registration and shareholder rights agreement pursuant to which its initial shareholders and their permitted transferees, if any, are entitled to certain registration rights with respect to the private placement warrants, the securities issuable upon conversion of working capital loans (if any), and the Class A ordinary shares issuable upon exercise of the foregoing and upon conversion of the Class B ordinary shares.
At closing of the Business Combination, we entered into the Sponsor Registration Rights Agreement, pursuant to which, among other things, the Sponsor was granted certain registration rights with respect to its shares of Class A Common Stock.
Demand registration rights.
At any time after January 20, 2021, we are required, upon the written request of the Sponsor, to file a registration statement and use reasonable best efforts to effect the registration of all or part of their registrable securities. We are not obligated to effect (i)more than one demand registration during anysix-monthperiod or (ii)any demand registration if a registration statement on FormS-3or its successor form, or, if we are ineligible to use FormS-3,a registration statement on FormS-1,for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time pursuant to any method or combination of methods legally available to, and requested by, the Investors of all of the registrable securities then held by such Investors that are not covered by an effective resale registration statement (the Resale Shelf Registration Statement).
### Shelf registration rights.
Following the closing of the Business Combination, we filed a Resale Shelf Registration Statement with the SEC on February 5, 2021.
Piggyback registration rights.
At any time after January 20, 2021, if we propose to file a registration statement to register any of its equity securities under the Securities Act or to conduct a public offering, either for its own account or for the account of any other person, subject to certain exceptions, the Sponsor is entitled to include its registrable securities in such registration statement.
### Expenses and indemnification.
Registrable securities
Securities of Hims & Hers shall cease to be registrable securities when a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, such securities shall have been transferred pursuant to Rule 144 or such securities shall have ceased to be outstanding.
### Lock-up.
Notwithstanding the foregoing, the Sponsor, Hims & Hers and the officers and directors of Hims & Hers shall, if requested, deliver a customarylock-upagreement in connection with any underwritten public offering, subject to certain customary exceptions.
Based upon information requested from and provided by each director concerning his or her background, employment and affiliations, including family relationships, our Board has determined that none of Mr. Bard, Mr. Bhattacharyya, Dr. Cosgrove, Ms. Green, Mr. Maltz, Ms. OKeefe, Ms. Perez and Mr. Wells, representing eight of our nine directors, has a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors qualifies as independent as that term is defined under the rules of the NYSE. In making these determinations, our Board considered the relationships that each non-employee director has with us and all other facts and circumstances the Board deemed relevant in determining their independence, including the directors beneficial ownership of our common stock and the relationships of our non-employee directors with certain of our significant stockholders.
Item 14.
(1)
### Approval Policies and Procedures
The formal written charter for our audit committee requires that the audit committee (i) review and approve, in advance, the scope and plans for the audits and the audit fees and (ii) approve in advance (or, where permitted under the rules and regulations of the SEC, subsequently) all non-audit and tax services to be performed by the independent auditor that are not otherwise prohibited by law or regulations and any associated fees.
### PART IV
Item 15.<|endoftext|>Certificate of Incorporation of (incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form
10-Q for the quarterly period ended June30, 2003).
3.2
### Amended and Restated
By-laws
(as amended through July23, 2018) of (incorporated by reference to Exhibit 3.1 to our Current Report on Form
8-K filed July24, 2018).
4.1
Indenture, dated as of February4, 1997, between (successor to The Bank of New York Mellon which was previously known as The Bank of New York) (as successor to The Chase Manhattan Bank), as Trustee (incorporated by reference to Exhibit 4.1 to our Annual Report on Form
10-K for the fiscal year ended December31, 2001).
4.2
Seventh Supplemental Indenture, dated as of October8, 2009, between
8-K filed October8, 2009).
4.3
Eighth Supplemental Indenture, dated as of November5, 2013, between
8-K filed November5, 2013).
4.4
Ninth Supplemental Indenture, dated as of August15, 2017, between , as Trustee (incorporated by reference to Exhibit 4.2 to our Current Report on Form
8-K filed August16, 2017).
10.1+
Amended and Restated Diamond Offshore Management Company Supplemental Executive Retirement Plan effective as of January1, 2007 (incorporated by reference to Exhibit 10.4 to our Annual Report on Form
10-K for the fiscal year ended December31, 2006).
10.2+
Diamond Offshore Management Bonus Program, as amended and restated, and dated as of December31, 1997 (incorporated by reference to Exhibit 10.6 to our Annual Report on Form
10-K for the fiscal year ended December31, 1997).
10.3+
Equity Incentive Compensation Plan (incorporated by reference to Exhibit B attached to our definitive proxy statement on Schedule 14A filed April1, 2014).
### Exhibit
No.
Description
10.4+
Form of Stock Option Certificate for grants to executive officers, other employees and consultants pursuant to the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.1 to our Current Report on Form
8-K filed October1, 2004).
10.5+
Form of Stock Option Certificate for grants to non-employee directors pursuant to the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.2 to our Current Report on Form
8-K filed October1, 2004).
10.6+
Form of Award Certificate for stock appreciation right grants to the Companys executive officers, other employees and consultants pursuant to the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.1 to our Current Report on Form
8-K filed April28, 2006).
10.7+
Form of Award Certificate for stock appreciation right grants to non-employee directors pursuant to the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form
10-Q for the quarterly period ended March31, 2007).
10.8+
Form of Award Certificate for grants of Performance Restricted Stock Units under the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.5 to our Quarterly Report Form
10-Q for the quarterly period ended March31, 2014).
10.9+
Specimen Agreement for grants of restricted stock units to officers under the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.1 to our Current Report on Form
8-K filed March30, 2015).
10.10+
Specimen Agreement for grants of restricted stock units to the Chief Executive Officer under the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.2 to our Current Report on Form
8-K filed March30, 2015).
10.11+
Specimen agreement for grants of restricted stock units to executive officers under the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.4 to our Current Report on Form
8-K filed March14, 2018).
10.12+
Specimen agreement for grants of restricted stock units to the Chief Executive Officer under the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.5 to our Current Report on Form
8-K filed March14, 2018).
10.13+
The Incentive Compensation Plan (Amended and Restated as of January1, 2018, as amended June28, 2018) (incorporated by reference to Exhibit 10.1 to our Quarterly Report Form
10-Q for the quarterly period ended June30, 2018).
10.14+
Specimen agreement for cash incentive awards to executive officers under the Incentive Compensation Plan (incorporated by reference to Exhibit 10.2 to our Current Report on Form
8-K filed March14, 2018).
10.15+
Specimen agreement for performance cash incentive awards to the Chief Executive Officer under the Incentive Compensation Plan (incorporated by reference to Exhibit 10.3 to our Current Report on Form
8-K filed March14, 2018).
10.16
5-Year
Revolving Credit Agreement, dated as of October2, 2018, among , as the U.S. borrower, Diamond Foreign Asset Company, as the foreign borrower, Wells Fargo Bank, National Association, as administrative agent and swingline lender, the issuing banks named therein and the lenders named therein (incorporated by reference to Exhibit 10.1 to our Current Report on Form
8-K filed October4, 2018).
10.17+
Specimen Cash Incentive Award Agreement for executive officers under the Incentive Compensation Plan (Amended and Restated as of January1, 2018, as amended on June28, 2018) (incorporated by reference to Exhibit 10.1 to our Current Report on Form
8-K filed March20, 2019).
### Exhibit
No.
Description
10.18+
Specimen Cash Incentive Award Agreement for the Chief Executive Officer under the Incentive Compensation Plan (Amended and Restated as of January1, 2018, as amended on June28, 2018) (incorporated by reference to Exhibit 10.2 to our Current Report on Form
8-K filed March20, 2019).
10.19+
Specimen Restricted Stock Unit Award Agreement for executive officers under the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.3 to our Current Report on Form
8-K filed March20, 2019).
10.20+
Specimen Restricted Stock Unit Award Agreement for the Chief Executive Officer under the Equity Incentive Compensation Plan (incorporated by reference to Exhibit 10.4 to our Current Report on Form
8-K filed March20, 2019).
10.21+
Employment Agreement, dated as of March20, 2020, between and Marc Edwards (incorporated by reference to Exhibit 10.1 to our Current Report on Form
8-K filed March23, 2020).
10.22+
2020 Key Employee Incentive Plan, effective as of April21, 2020, and amended and restated as of June23, 2020 (incorporated by reference to Exhibit 10.1 to our Current Report on Form
8-K filed June26, 2020).
10.23
Plan Support Agreement, dated as of January22, 2021, by and among the Debtors and the Consenting Stakeholders (incorporated by reference to Exhibit 10.1 to our Current Report on Form
8-K filed January25, 2021).
21.1
List of Subsidiaries of (incorporated by reference to Exhibit 21.1 to the Original Filing).
23.1
Consent of Deloitte& Touche LLP (incorporated by reference to Exhibit 23.1 to the Original Filing).
24.1
Power of Attorney (incorporated by reference to Exhibit 24.1 to the Original Filing).
31.1*
### Rule
15d-14(a)
Certification of the Chief Executive Officer dated as of April30, 2021.
31.2*
### Rule
15d-14(a)
Certification of the Chief Financial Officer dated as of April30, 2021.
32.1
Section1350 Certification of the Chief Executive Officer and Chief Financial Officer (previously furnished as Exhibit 32.1 to the Original Filing).
101.INS
XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document (incorporated by reference to Exhibit 101.INS to the Original Filing).
101.SCH
Inline XBRL Taxonomy Extension Schema Document (incorporated by reference to Exhibit 101.SCH to the Original Filing).
101.CAL
Inline XBRL Taxonomy Calculation Linkbase Document (incorporated by reference to Exhibit 101.CAL to the Original Filing).
101.LAB
Inline XBRL Taxonomy Label Linkbase Document (incorporated by reference to Exhibit 101.LAB to the Original Filing).
101.PRE
Inline XBRL Presentation Linkbase Document (incorporated by reference to Exhibit 101.PRE to the Original Filing).
101.DEF
Inline XBRL Definition Linkbase Document (incorporated by reference to Exhibit 101.DEF to the Original Filing).
### Exhibit
No.
Description
104*
The cover page of this Annual Report on Form
10-K/A
(Amendment No.1) for the fiscal year ended December31, 2020, formatted in Inline XBRL.
*
Filed or furnished herewith.
+
Management contracts or compensatory plans or arrangements.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
8-K filed with the SEC on April7, 2010)
### Exhibit
Number
Exhibit Title
10.16
and BGC Brokers L.P. Administrative Services Agreement dated January9, 2012 (incorporated by reference to Exhibit 10.60 to the Registrants Annual Report on Form
10.17
and Cantor Fitzgerald Europe Administrative Services Agreement dated January9, 2012 (incorporated by reference to Exhibit 10.61 to the Registrants Annual Report on Form
10.18
and Cantor Index Limited Administrative Services Agreement dated January9, 2012 (incorporated by reference to Exhibit 10.62 to the Registrants Annual Report on Form
10.19
and BGC International Administrative Services Agreement dated January9, 2012 (incorporated by reference to Exhibit 10.63 to the Registrants Annual Report on Form
10.20
and eSpeed International Limited Administrative Services Agreement dated January9, 2012 (incorporated by reference to Exhibit 10.64 to the Registrants Annual Report on Form
10.21
and eSpeed Support Services Limited Administrative Services Agreement dated January9, 2012 (incorporated by reference to Exhibit 10.65 to the Registrants Annual Report on Form
10.22
Amended and Restated Change in Control Agreement dated August3, 2011 between Howard W. Lutnick and BGC Partners, Inc.
10.23
Amended and Restated Change in Control Agreement dated August3, 2011 between Stephen M. Merkel and BGC Partners, Inc.
10.24
Deed of Amendment, dated August14, 2020, between Shaun D. Lynn and BGC Services (Holdings) LLP
8-K filed with the SEC on August14, 2020)*
10.25
Amended and Restated Deed of Adherence, dated as of January22, 2014, between Sean Windeatt and BGC Services (Holdings) LLP
8-K filed with the SEC on January28, 2014)*
10.26
Deed of Amendment, dated February24, 2017, to the Amended and Restated Deed of Adherence, between Sean A. Windeatt and BGC Services (Holdings) LLP (incorporated by reference to Exhibit 10.86 to the Registrants Annual Report on Form
10.27
Deed of Amendment, dated November5, 2020, to the Amended and Restated Deed of Adherence, between Sean A. Windeatt and BGC Services (Holdings) LLP
10-Q filed with the SEC on November6, 2020)
*
10.28
Consultancy Agreement, dated February24, 2017, between Sean A. Windeatt and BGC Services (Holdings) LLP (incorporated by reference to Exhibit 10.87 to the Registrants Annual Report on Form
### Exhibit
Number
Exhibit Title
10.29
Amendment, dated November5, 2020, to the Consultancy Agreement, dated February24, 2017, between Sean A. Windeatt and BGC Services (Holdings) LLP (incorporated by reference to Exhibit 10.3 to the Registrants Quarterly Report on Form
10-Q filed with the SEC on November6, 2020)*
10.30
Letter Agreement, dated as of August24, 2015, among BGC Partners, Inc., BGC Partners, L.P. and GFI Group Inc., relating to shareholder litigation and the Tender Offer Agreement
10-Q filed with the SEC on November9, 2015)
10.31
Seventh Amended and Restated Long Term Incentive Plan, dated as of June22, 2016
8-K filed with the SEC on June24, 2016)*
10.32
Second Amended and Restated BGC Partners, Inc. Incentive Bonus Compensation Plan
8-K filed with the SEC on June9, 2017)*
10.33
Amended and Restated Agreement of Limited Partnership of CF Real Estate Finance Holdings, L.P., dated as of September8, 2017
8-K filed with the SEC on September8, 2017)
10.34
Second Amended and Restated Agreement of Limited Partnership of BGC Holdings, L.P., dated as of December13, 2017
10.35
Amendment No.1, dated November8, 2018, to the Second Amended and Restated Agreement of Limited Partnership of BGC Holdings, L.P (incorporated by reference to Exhibit 10.6 to the Registrants Current Report on Form
8-K filed with the SEC on November8, 2018).
10.36
Second Amended and Restated Agreement of Limited Partnership of BGC Partners, L.P., dated as of December13, 2017 (incorporated by reference to Exhibit 10.4 to the Registrants Current Report on Form
10.37
Second Amended and Restated Agreement of Limited Partnership of BGC Global Holdings, L.P., dated as of December13, 2017 (incorporated by reference to Exhibit 10.5 to the Registrants Current Report on Form
10.38
Registration Rights Agreement, dated as of December13, 2017, by and among Cantor Fitzgerald, L.P., BGC Partners, Inc. and Newmark Group, Inc. (incorporated by reference to Exhibit 10.6 to the Registrants Current Report on Form
10.39
Tax Matters Agreement, dated as of December13, 2017, by and among BGC Partners, Inc., BGC Holdings, L.P., BGC Partners, L.P., Newmark Group, Inc., Newmark Holdings, L.P. and Newmark Partners, L.P. (incorporated by reference to Exhibit 10.8 to the Registrants Current Report on Form
10.40
Amended and Restated Tax Receivable Agreement, dated as of December13, 2017, by and between Cantor Fitzgerald, L.P. and BGC Partners, Inc. (incorporated by reference to Exhibit 10.9 to the Registrants Current Report on Form
10.41
Registration Rights Agreement, dated as of July10, 2020, between BGC Partners, Inc. and the parties named therein
### Exhibit
Number
Exhibit Title
10.42
Credit Agreement, dated as of March19, 2018, by and between BGC Partners, Inc. and Cantor Fitzgerald, L.P.
10.43
Amendment, dated August6, 2018, to the Credit Agreement, dated as of March19, 2018, by and between BGC Partners, Inc. and Cantor Fitzgerald, L.P
8-K filed with the SEC on August7, 2018)
10.44
Amended and Restated Credit Agreement, dated as of March19, 2018, by and between BGC Partners, Inc. and Newmark Group, Inc. (incorporated by reference to Exhibit 10.2 to the Registrants Current Report on Form
10.45
Credit Agreement, dated as of November28, 2018, by and among BGC Partners, Inc., as the Borrower, certain subsidiaries of the Borrower, as Guarantors, the several financial institutions from time to time as parties thereto, as Lenders, and Bank of America, N.A., as Administrative Agent
8-K filed with the SEC on November27, 2018)
10.46
First Amendment, dated December11, 2019, to the Credit Agreement, dated as of November28, 2018, by and among BGC Partners, Inc., as the Borrower, certain subsidiaries of the Borrower, as Guarantors, the several financial institutions from time to time as parties thereto, as Lenders, and Bank of America, N.A., as Administrative Agent
8-K filed with the SEC on December13, 2019)
10.47
Second Amendment, dated February26, 2020, to the Credit Agreement, dated as of November28, 2018, by and among BGC Partners, Inc., as the Borrower, certain subsidiaries of the Borrower, as Guarantors, the several financial institutions from time to time as parties thereto, as Lenders, and Bank of America, N.A., as the Administrative Agent. (incorporated by reference to Exhibit 10.47 to the Registrants Annual Report on Form
21.1
List of subsidiaries of BGC Partners, Inc. (included as Exhibit 21.1 to the Registrants Annual Report on Form
23.1
Consent of Ernst& Young LLP (included as Exhibit 23.1 to the Registrants Annual Report on Form
31.1
Certification by the Chief Executive Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002 (included as Exhibit 31.1 to the Registrants Annual Report on Form
31.2
Certification by the Principal Financial Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002 (included as Exhibit 31.2 to the Registrants Annual Report on Form
31.3
Certification by the Principal Executive Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002
31.4
Certification by the Principal Financial Officer Pursuant to Section302 of the Sarbanes-Oxley Act of 2002
32.1
Certification by the Chief Executive Officer and Principal Financial Officer Pursuant to Section906 of the Sarbanes-Oxley Act of 2002 (included as Exhibit 32.1 to the Registrants Annual Report on Form
### Exhibit
Number
Exhibit Title
The following materials from BGC Partners Annual Report on Form
10-K for the period ended December31, 2020 are formatted in inline eXtensible Business Reporting Language (iXBRL): (i)the Consolidated Statements of Financial Condition, (ii)the Consolidated Statements of Operations, (iii)the Consolidated Statements of Comprehensive Income (Loss), (iv) the Consolidated Statements of Cash Flows, (v)the Consolidated Statements of Changes in Equity, (vi)Notes to the Consolidated Financial Statements, and (vii)Schedule I, Parent Company Only Financial Statements. The XBRL Instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the iXBRL document.
The cover page from this Amendment No. 1 to Annual Report on Form
10-K/A, formatted in inline XBRL.<|endoftext|>This Amendment No. 1 on Form 10-K/A (this Amendment) amends the Annual Report on Form 10-K of Microbot Medical Inc. (the Company) for the year ended December 31, 2020, as filed with the Securities and Exchange Commission on March 31, 2021 (the Form 10-K).
In the Form 10-K, the Company inadvertently omitted (a) /s/ Brightman Almagor Zohar & Co. on the signature line in the document titled Report of Independent Registered Public Accounting Firm (the Audit Report), (b) We have served as the Companys auditor since 2013. from the Audit Report and (c) /s/ Brightman Almagor Zohar & Co. on the signature line in the document titled in Exhibit 23.1 filed with the Form 10-K (the Consent).
The Audit Report and Consent were each signed by Brightman Almagor Zohar & Co. and delivered to the Company, and Brightman Almagor Zohar & Co. provided their consent to the Company to release the Audit Report and the Consent and file the Form 10-K prior to the original filing of the Form 10-K, but the conformed signature lines and the other disclosure was inadvertently omitted from the versions of the Audit Report and Consent included in or accompanying the filing.
This Amendment consists solely of the preceding cover page, this explanatory note, the information required by Item 15 of Form 10-K, a signature page, a replacement Exhibit 23.1, and certifications required to be filed as exhibits hereto.
Item 15.
(a) The following documents are filed as part of this Annual Report on Form 10-K:
(1) Financial Statements:
The financial statements are filed as part of this Annual Report on Form 10-K commencing on page F-1 and are hereby incorporated by reference
The financial statement schedules are omitted as they are either not applicable or the information required is presented in the financial statements and notes thereto.
(3) Exhibits:
The documents set forth below are filed herewith or incorporated by reference to the location indicated.
### Exhibit Number
Description of Document
2.1
Agreement and Plan of Merger and Reorganization, dated as of August 15, 2016, by and among StemCells, Inc., C&RD Israel Ltd. and Microbot Medical Ltd. (incorporated by reference to the Companys Current Report on Form 8-K filed on August 15, 2016).
3.1
Restated Certificate of Incorporation of the Company (incorporated by reference to the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2006 and filed on March 15, 2007).
3.2
Certificate of Amendment to the Restated Certificate of Incorporation of the Company (incorporated by reference to the Companys Current Report on Form 8-K filed on November 29, 2016).
3.3
Certificate of Amendment to the Restated Certificate of Incorporation (incorporated by reference to the Companys Current Report on Form 8-K filed on September 4, 2018).
3.4
Amended and Restated By-Laws of the Company (incorporated by reference to the Companys Current Report on Form 8-K filed on May 3, 2016).
3.5
Certificate of Elimination (incorporated by reference to the Companys Current Report on Form 8-K filed on December 12, 2018).
3.6
Certificate of Amendment to the Restated Certificate of Incorporation (incorporated by reference to the Companys Current Report on Form 8-K filed on September 11, 2019).
4.1
Form of Series A Warrant (incorporated by reference to the Registrants Current Report on Form 8-K filed on December 16, 2016).
4.2
Form of Series B Warrant (incorporated by reference to the Companys Current Report on Form 8-K filed on December 16, 2016).
4.3
Form of Wainwright Warrant (incorporated by reference to the Registrants Current Report on Form 8-K filed on January 16, 2019)
4.4
Form of Wainwright Warrant (incorporated by reference to the Registrants Current Report on Form 8-K filed on January 17, 2019).
4.5
Form of Warrant (incorporated by reference to the Registrants Current Report on Form 8-K filed on January 25, 2019).
4.6
Form of Warrant (incorporated by reference to the Registrants Current Report on Form 8-K filed on December 27, 2019).
4.7
Form of Wainwright Warrants (incorporated by reference to the Registrants Current Report on Form 8-K filed on January 25, 2019).
4.8
Form of Warrant (incorporated by reference to the Registrants Current Report on Form 8-K filed on December 30, 2019).
4.9
Form of Warrant (incorporated by reference to the Registrants Current Report on Form 8-K filed on December 31, 2019).
4.10
Description of the Companys Securities (incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2019).
10.1
Form of Indemnification Agreement, between the Company and each of its Directors and Officers (incorporated by reference to the Companys Current Report on Form 8-K filed on November 29, 2016).
10.2*
Employment Agreement with Harel Gadot (incorporated by reference to the Companys Current Report on Form 8-K filed on November 29, 2016).
10.3*
Services Agreement with DBN Finance Services Ltd. (incorporated by reference to the Companys Current Report on Form 8-K filed on November 29, 2016).
10.4
License Agreement, dated June 20, 2012, by and between Technion Research and Development Foundation, and Microbot Medical Ltd. (incorporated by reference to the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2016 and filed on March 21, 2017).
10.5*
Form of Stock Option Agreement under the Microbot Medical Inc. 2017 Equity Incentive Plan (incorporated by reference to the Companys Quarterly Report on Form 10-Q for the Quarter ended September 30, 2017, filed on November 14, 2017).
10.6
Agreement, dated January 4, 2018, by and between CardioSert Ltd. and Microbot Medical Ltd. (incorporated by reference to the Companys Current Report on Form 8-K filed on January 8, 2018).
10.7*
Employment Agreement with Dr. Eyal Morag (incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed on April 14, 2020).
10.8*
Microbot Medical Inc. 2017 Equity Incentive Plan (incorporated by reference to Exhibit A of the Companys Definitive Proxy Statement on Schedule 14A filed on August 11, 2017).
10.9*
Microbot Medical Inc. 2020 Omnibus Performance Award Plan (incorporated by reference to Exhibit A of the Companys definitive Proxy Statement on Schedule 14A filed on July 31, 2020)
10.10*
Form of Restricted Stock Unit Award Agreement under the Microbot Medical Inc. 2020 Omnibus Performance Award Plan (incorporated by reference to Exhibit 4.2 of the registration Statement on Form S-8 of the Company filed on November 25, 2020)
10.11*
Form of NQO Award Agreement under the Microbot Medical Ltd. 2020 Omnibus Performance Award Plan (incorporated by reference to Exhibit 4.3 of the registration Statement on Form S-8 of the Company filed on November 25, 2020)
10.12*
Form of Restricted Stock Award Agreement under the Microbot Medical Ltd. 2020 Omnibus Performance Award Plan (incorporated by reference to Exhibit 4.4 of the registration Statement on Form S-8 of the Company filed on November 25, 2020)
10.13*
Form of SAR Award Agreement under the Microbot Medical Ltd. 2020 Omnibus Performance Award Plan (incorporated by reference to Exhibit 4.5 of the registration Statement on Form S-8 of the Company filed on November 25, 2020)
10.14*
Form of ISO Award Agreement under the Microbot Medical Ltd. 2020 Omnibus Performance Award Plan (incorporated by reference to Exhibit 4.6 of the registration Statement on Form S-8 of the Company filed on November 25, 2020)
21.1
Subsidiaries of the Company (incorporated by reference to the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2016 and filed on March 21, 2017).
23.1
31.1
Certification Pursuant to Securities Exchange Act Rule 13(a)-14(a), as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Harel Gadot, Chief Executive Officer)
31.2
Certification Pursuant to Securities Exchange Act Rule 13(a)-14(a), as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (David Ben Naim, Chief Financial Officer)
32.1
Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Harel Gadot, Chief Executive Officer)
32.2
Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (David Ben Naim, Chief Financial Officer)
101.INS**
XBRL Instance.
101.SCH**
101.CAL
**
XBRL Taxonomy Extension Calculation.
101.DEF
**
101.LAB
**
XBRL Taxonomy Extension Labels.
101.PRE
**
### XBRL Taxonomy Extension Presentation.
**
Previously filed.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Details the purpose and responsibilities of the nominating and corporate governance committee, including: identifying, screening and reviewing individuals qualified to serve as directors, consistent with criteria approved by the board, and recommending to the board of directors candidates for nomination for election at the annual general meeting or to fill vacancies on the board of directors;
### Compensation Committee
We have a compensation committee comprised of Messrs. Langhammer and Lundgren, and Mr. Lundgren is the chair of the compensation committee. All members of our compensation committee are independent of and unaffiliated with our sponsor and our underwriters.
Our compensation committee charter details the principal functions of the compensation committee, including: reviewing and approving on an annual basis the corporate goals and objectives relevant to our chief executive officers compensation, evaluating our chief executive officers performance in light of such goals and objectives and determining and approving the remuneration (if any) of our chief executive officers based on such evaluation;
Notwithstanding the foregoing, as indicated above, other than the payment of customary fees we may elect to make to members of our board of directors for director service and payment to an affiliate of our sponsor of $10,000 per month, for up to July 17, 2022, for office space, utilities and secretarial and administrative support and reimbursement of expenses, no compensation of any kind, including finders, consulting or other similar fees, will be paid to any of our existing shareholders, officers, directors or any of their respective affiliates, prior to, or for any services they render in order to effectuate the consummation of an initial business combination.
Code of Business Condcut and Ethics and Committee Charters
We have adopted a Code of Business Conduct and Ethics that applies to our directors, officers and employees. We have filed copies of our Code of Business Conduct and Ethics and our audit committee and compensation committee charters as exhibits to our registration statement in connection with the Public Offering. In addition, a copy of the Code of Business Conduct and Ethics will be provided without charge upon request from us in writing at Unit 1008, 10/F, Champion Tower, 3 Garden Road, Central Hong Kong or by telephone at +852 3973 5500. The information included on our website is not incorporated by reference into the Form S-1 or in any other report or document we file with the SEC, and any references to our website are intended to be inactive textual references only.
Section 16(a) of the Exchange Act requires our officers, directors and persons who own more than ten percent of a registered class of our equity securities to file reports of ownership and changes in ownership with the SEC. Officers, directors and ten percent shareholders are required by regulation to furnish us with copies of all Section 16(a) forms they file. Based solely on review of the copies of such forms furnished to us, or written representations that no Forms 5 were required, we believe that, during the fiscal year ended December 31, 2020, all Section 16(a) filing requirements applicable to our officers and directors were complied with.
### ITEM 11. EXECUTIVE COMPENSATION.
ITEM 12.
The following table sets forth information regarding the beneficial ownership of our ordinary shares as of March 25, 2021, by: each person known by us to be a beneficial owner of more than 5% of our outstanding ordinary shares, on an as-converted basis;
The following table is based on 43,125,000 ordinary shares outstanding at March 25, 2021, of which 34,500,000 were Class A shares and 8,625,000 were Class B shares.
*
Less than one percent.
(1)
Unless otherwise noted, the business address of each of the following is Unit 1008, 10/F, Champion Tower, 3 Garden Road, Central, Hong Kong.
(2)
Such shares will automatically convert into Class A ordinary shares concurrently with or immediately following the consummation of our initial business combination on a one-for-one basis, subject to adjustment.
(3)
D8 Sponsor LLC, our sponsor, is the record holder of such shares. Messrs. Chu and Tang are the managers of D8 Sponsor LLC and share voting and investment discretion with respect to the ordinary shares held of record by D8 Sponsor LLC. Each of the Messrs. Chu and Tang disclaims any beneficial ownership of the securities held by D8 Sponsor LLC other than to the extent of any pecuniary interest he may have therein, directly or indirectly.
(5)
Pursuant to a Schedule 13G filed by such persons as a group with the SEC on February 16, 2021, each of Glazer Capital, LLC and Mr. Glazer may be deemed the beneficial owner of 2,970,452 Class A ordinary shares, as a result of holding directly or indirectly, 2,970,452 Class A ordinary shares, with shared voting power and shared dispositive power with respect to such Class A ordinary shares.
ITEM 13.
### Founder Shares
On May 14, 2020, the Sponsor paid $25,000, or approximately $0.003 per share, to cover certain of our offering costs in exchange for 7,187,500 Founder Shares. On June 25, 2020, the Sponsor transferred 15,000 Founder Shares to Robert Kirby and 25,000 Founder Shares to each of Michael Kives, Fred Langhammer and Terry Lundgren, resulting in the Sponsor holding 7,097,500 Founder Shares.
The Founder Shares are identical to the Public Shares except that the Founder Shares are subject to certain transfer restrictions, as described in more detail below.
On July 17, 2020, simultaneously with the closing of the Public Offering, the Company consummated the private placement of 8,000,000 Private Placement Warrants to the Sponsor, each exercisable to purchase one ClassA ordinary share at $11.50 per share, at a price of $1.00 per Private Placement Warrant, generating gross proceeds to the Company of $8,000,000. On July 24, 2020, simultaneously with the sale of the over-allotment units, the Company consummated a private sale of an additional 900,000 Private Placement Warrants to the Sponsor, generating additional gross proceeds of $900,000.
A portion of the proceeds from the Private Placement Warrants were added to the proceeds from the Public Offering held in the Trust Account.
### Sponsor Loan
On May 14, 2020, the Sponsor agreed to loan the Company up to $300,000 to cover expenses related to the Public Offering pursuant to a promissory note.
Working Capital Loans
In addition, in order to finance transaction costs in connection with a Business Combination, the Sponsor or an affiliate of the Sponsor, or certain of the Companys officers and directors may, but are not obligated to, loan the Company funds as may be required (the Working Capital Loans). The Working Capital Loans would either be repaid upon consummation of a Business Combination or, at the lenders discretion, up to $1.5 million of such Working Capital Loans may be convertible into private placement warrants at a price of $1.00 per warrant.
For the three months ended December 31, 2020 and for the period from May 6, 2020 (inception) through December 31, 2020, the Company incurred and paid approximately $55,000 in such administrative fees.
Registration Rights
The holders of Founder Shares, Private Placement Warrants, and securities that may be issued upon conversion of Working Capital Loans, if any, are entitled to registration rights pursuant to a registration rights agreement signed upon consummation of the Public Offering.
### ITEM 14.
Audit Fees
The aggregate fees billed by WithumSmith+Brown, PC for audit fees, inclusive of required filings with the SEC for the period from May 6, 2020 (inception) to December 31, 2020 and of services rendered in connection with our initial public offering, totaled $88,065.
### Audit-Related Fees
Audit-related fees are fees billed for assurance and related services that are reasonably related to performance of the audit or review of our year-end financial statements and are not reported under Audit Fees. During the period from May 6, 2020 (inception) to December 31, 2020, we did not pay WithumSmith+Brown, PC any audit-related fees.
Tax Fees.
During the period from May 6, 2020 (inception) to December 31, 2020, we did not pay WithumSmith+Brown, PC any tax fees.
### All Other Fees.
During the period from May 6, 2020 (inception) to December 31, 2020, we did not pay WithumSmith+Brown, PC any other fees.
PART IV
### ITEM 15.
(a)The following documents are filed as part of this report:
(1)
### Financial Statements
(2)
(3)
### Exhibits
* Previously filed.<|endoftext|>Of 6,941 shares.
Based on the Vanguard13G, the address of The Vanguard Group is 100 Vanguard Blvd., Malvern, PA 19355.
Our Incentive Plan, which was approved by shareholders on May 17, 2012, provides for the granting of restricted stock, restricted stock units and stock options to team members, officers, and directors.
The following table sets forth (1) the number of shares of common stock to be issued upon the exercise of outstanding stock options or restricted stock units, (2) the weighted average exercise price of outstanding options, if applicable, and (3) the number of shares remaining available for future issuance, as of December31, 2020, disregarding the stock option grant described below which is subject to shareholder approval of an amendment to the Incentive Plan:
(1)The weighted average exercise price in this column does not take into account restricted stock units that are outstanding under the Incentive Plan, which have no exercise price.
(2)For additional information regarding our equity compensation plans, including grants of restricted stock units, see Note 14 to the consolidated financial statements contained in Item 8 of the Original 10-K Filing, which is incorporated herein by reference.
(3)Excludes 122,718 unvested shares of restricted stock because these shares, while unvested, are already considered outstanding at December 31, 2020.
The foregoing table does not reflect the December 30, 2020 grant, subject to shareholder approval of an amendment to the Incentive Plan at our next annual meeting of shareholders, of 622,000 nonqualified stock options to team members. See Note 14 to the consolidated financial statements contained in Item 8 of the Original 10-K Filing.
### Certain Relationships and Transactions
In the normal course of our business, affiliated dealers assign consumer loans to us under the portfolio and purchase programs. Dealer loans and purchased loans with affiliated dealers are on the same terms as those with non-affiliated dealers. Affiliated dealers are comprised of dealers owned or controlled by: (1) Mr. Foss, our founder, significant shareholder and former Chairman of the Board; and (2) a member of Mr. Fosss immediate family.
On January 3, 2017, Mr. Foss agreed, until the final adjournment of the tenth annual meeting of shareholders held by the Company after the date of the shareholder agreement, to cause all shares of the Company beneficially owned by him or any of his affiliates or associates to be voted in accordance with the recommendation of the Companys Board of Directors with respect to election and removal of directors, certain routine matters and any other proposal to be submitted to the Companys shareholders with respect to any extraordinary transaction providing for the acquisition of all of the Companys outstanding common stock. As a result, we no longer consider the remaining dealers owned or controlled by Mr. Foss or a member of Mr. Fosss immediate family to be affiliated with us for financial statement disclosure purposes while Mr. Fosss voting interests in the Company are subject to the voting restrictions under the shareholder agreement. However, we continue to report his activity below as Mr. Foss remains a beneficial owner of more than five percent of the Company's voting securities.
The affiliated dealer loan balance was $36.5 million as of December 31, 2020, which is 0.6% of our total consolidated dealer loan balance. A summary of related party loan activity is as follows:
(a) Represents advances paid to dealers on consumer loans assigned under our portfolio program and one-time payments made to dealers to purchase consumer loans assigned under our purchase program.
In accordance with its written charter, the Audit Committee reviews and approves all of our transactions with directors and executive officers and with firms that employ directors, as well as any other material related party transactions. Any such transactions would be reviewed by the Audit Committee in light of whether it resulted in a conflict of interest for the individual and whether such transaction is fair to us and in our best interests. The terms of the transactions described above were previously approved by the Audit Committee; therefore, the Audit Committee does not intend to re-approve these transactions and relationships unless they no longer occur in the ordinary course of our business and the terms change such that the transactions no longer occur on the same terms as transactions with non-affiliated dealers.
### Director Independence
Messrs. Flanagan were determined to be independent directors as defined in Rule 5605(a)(2) of The Nasdaq Stock Market LLC (Nasdaq). In connection with electing Mr. Hegde to the Board effective May 3, 2021, the Board determined that Mr. Hegde would be an independent director as defined in Rule 5605(a)(2) of Nasdaq.
### INDEPENDENT ACCOUNTANTS
General
The Audit Committee has appointed Grant Thornton as our independent accountants to perform an integrated audit of our consolidated financial statements and the effectiveness of our internal control over financial reporting for 2021. Grant Thornton has served as our independent accountants since their appointment by the Audit Committee on July 20, 2005, and acted as our independent accountant in 2020 to audit the financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2020. Representatives of Grant Thornton are expected to be present at the meeting to respond to questions from the shareholders and will be given the opportunity to make a statement.
### Fees Paid to Independent Accountants
The following table provides a summary of the aggregate fees billed by Grant Thornton for 2020 and 2019.
(a)
Includes fees for the audit of our annual consolidated financial statements, the audit of the effectiveness of our internal control over financial reporting, and the review of our interim consolidated financial statements.
(b)
Includes fees for agreed-upon procedures for our debt, the audit of our employee benefit plan and comfort letter procedures.
The Audit Committee has considered whether the provision of these services is compatible with maintaining the independence of Grant Thornton and satisfied itself as to the maintenance of the auditors independence.
Policy for Pre-Approval of Audit and Non-Audit Services
The Audit Committees policy is to pre-approve all audit services and all non-audit services that our independent accountants are permitted to perform for us under applicable federal securities regulations. The Audit Committees policy utilizes an annual review and general pre-approval of certain categories of specified services that may be provided by the independent accountants, up to predetermined fee levels. Any proposed services not qualifying as a pre-approved specified service, and pre-approved services exceeding the predetermined fee levels, require further specific pre-approval by the Audit Committee. The Audit Committee has delegated to the Chairman of the Audit Committee the authority to pre-approve audit and non-audit services proposed to be performed by the independent accountants. All services provided by our independent auditors were pre-approved by the Audit Committee. The policy has not been waived in any instance.
PART IV
(a)(1)The following consolidated financial statements of the Company and notes thereto and the are contained in Item8 Financial Statements and Supplementary Data in the Original 10-K Filing.
Consolidated Statements of Shareholders Equity for the years ended December 31, 2020, 2019 and 2018
(2)Financial Statement Schedules have been omitted because they are not applicable or are not required or the information required to be set forth therein is included in the Consolidated Financial Statements or notes thereto.
(3)The exhibits filed in response to Item 601 of Regulation S-K are listed in the Exhibit Index below.
### EXHIBIT INDEX
Other instruments, notes or extracts from agreements defining the rights of holders of long-term debt of the Company or its subsidiaries have not been filed because (i) in each case the total amount of long-term debt permitted thereunder does not exceed 10% of the Companys consolidated assets and (ii) the Company hereby agrees that it will furnish such instruments, notes and extracts to the Securities and Exchange Commission upon its request.
Amendments and modifications to other exhibits previously filed have been omitted when in the opinion of the registrant such exhibits as amended or modified are no longer material or, in certain instances, are no longer required to be filed as exhibits.
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
The Initial Public Offering.
As of December31, 2020 and 2019, we had no compensation plans (including individual compensation arrangements) under which equity securities of the registrant were authorized for issuance.
Item 13.
In August2020, we issued an aggregate of 8,625,000 founder shares to our sponsor for an aggregate purchase price of $25,000 in cash, or approximately $0.003 per share. On November13, 2020, our sponsor effected a surrender of 1,437,500 founder shares to the company for no consideration and on November16, 2020, our sponsor effected a surrender of 1,437,500 founder shares to the company for no consideration, resulting in our sponsor holding an aggregate of 5,750,000 founder shares. Prior to the initial investment in our company of $25,000 by our sponsor, we had no assets, tangible or intangible. The per-share price of the founder shares was determined by dividing the amount contributed to us by the number of founder shares issued.
On November24, 2020, the underwriters partially exercised the over-allotment option to purchase an additional 1,838,800 Units and did not exercise the remaining over-allotment option; thus, 290,300 shares of ClassB common stock were forfeited by the sponsor.
Our sponsor purchased 4,245,173 private placement warrants, each exercisable to purchase one share of ClassA common stock at $11.50per share, at a price of $1.50per warrant ($6,367,760), in private placements that closed simultaneously with the closing of the Initial Public Offering and the closing of the underwriters option to purchase additional units. The private placement warrants (including the ClassA common stock issuable upon exercise of the private placement warrants) may not, subject to certain limited exceptions, be transferred, assigned or sold until30days after the completion of our initial business combination.
2455 E. Sunrise Blvd.
We may pay salaries or consulting fees to our sponsors, officers, directors or their affiliates. We may also pay success fees to such individuals upon consummation of our initial business combination.
Other than the monthly administrative fees and salaries, consulting fees or success fees described above, no compensation of any kind, including finders fees, will be paid by us to our sponsors, CEO, CFO and directors, or any of their respective affiliates, for services rendered prior to or in connection with the completion of an initial business combination. Our audit committee will review on a quarterly basis all payments that were made to our sponsors, officers, directors or our or their affiliates.
Our sponsors previously loaned to us $300,000. These loans were non-interest bearing, unsecured and were due at the earliest of August24, 2021, the closing of the Initial Public Offering and if we determined to abandon the Initial Public Offering. The loans were repaid upon the closing of the Initial Public Offering.
In addition, in order to finance transaction costs in connection with an intended initial business combination, our sponsors, officers, directors or their respective affiliates may, but are not obligated to, loan us funds as may be required on a non-interest basis. Up to $1,500,000 of such loans may be convertible into warrants of the post-business combination entity at a price of $1.50per warrant at the option of the lender. Prior to the completion of our initial business combination, we do not expect to seek loans from other third parties as we do not believe third parties will be willing to loan such funds and provide a waiver against any and all rights to seek access to funds in our trust account.
### Related Party Policy
Our Code of Ethics requires us to avoid, wherever possible, all related party transactions that could result in actual or potential conflicts of interests, except under guidelines or resolutions approved by the board of directors (or the audit committee) or as disclosed in our public filings with the SEC.
To further minimize conflicts of interest, we have agreed not to consummate an initial business combination with an entity that is affiliated with any of our sponsor, officers or directors unless we, or a committee of independent directors, have obtained an opinion from an independent investment banking firm or an independent accounting firm that our initial business combination is fair to our company from a financial point of view.
### Director Independence
Our board of directors has determined that each of Stuart W. Holliday, Capricia P. Marshall and Michael E. Roemerare independent directors as defined in the NYSE listing standards and applicable SEC rules.
Item14.
Audit Fees
The aggregate fees billed by Marcum for professional services rendered for the audit of our annual financial statements, review of the financial information included in our Forms 10-Q for the respective periods and other required filings with the SEC for the year ended December31, 2020, including services in connection with our initial public offering totaled $61,800.
### Audit-Related Fees
During the year ended December31, 2020, we did not pay Marcum for consultations concerning financial accounting and reporting standards.
Tax Fees
We did not pay Marcum for tax planning and tax advice during the year ended December31, 2020.
### All Other Fees
We did not pay Marcum for other services during the year ended December31, 2020.
Audit Committee Approval
### PARTIV
Item15.
Exhibits, Financial StatementSchedules.
(a)
(1)
Financial Statements:
(2)
### Financial StatementSchedules:
None.
(3)
The following exhibits are filed as part of this Form10-K:
### Exhibit
Number
Description
3.1
Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit3.1 to the Companys Current Report on Form8-K filed on November20, 2020).
3.2
Bylaws (incorporated by reference to Exhibit3.3 to the Companys Registration Statement on FormS-1 filed on September23, 2020).
4.1
Specimen Unit Certificate (incorporated by reference to Exhibit4.1 to the Companys Registration Statement on FormS-1/A filed on September30, 2020).
4.2
Specimen ClassA Common Stock Certificate (incorporated by reference to Exhibit4.2 to the Companys Registration Statement on FormS-1 filed on September30, 2020).
4.3
Specimen Warrant Certificate (incorporated by reference to Exhibit4.3 to the Companys Registration Statement on FormS-1 filed on September30, 2020).
4.4
Warrant Agreement, dated November16, 2020, between Continental Stock Transfer& Trust Company and the Company (incorporated by reference to Exhibit4.1 to the Companys Current Report on Form8-K filed on November20, 2020).
4.5
10.1
Warrant Purchase Agreement, dated November16, 2020, between the Company and Pine Island Sponsor LLC (incorporated by reference to Exhibit10.1 to the Companys Current Report on Form8-K filed on November20, 2020).
10.2
Investment Management Trust Account Agreement, dated November16, 2020, between Continental Stock Transfer& Trust Company and the Company (incorporated by reference to Exhibit10.2 to the Companys Current Report on Form8-K filed on November20, 2020).
10.3
Registration and Stockholder Rights Agreement, dated November16, 2020, among the Company, the Sponsor and the other Holders (as defined therein) signatory thereto (incorporated by reference to Exhibit10.3 to the Companys Current Report on Form8-K filed on November20, 2020).
10.4
Letter Agreement, dated November16, 2020, among the Company, the Sponsor, certain investors in the Sponsor and each of the initial stockholders, directors and officers of the Company (incorporated by reference to Exhibit10.4 to the Companys Current Report on Form8-K filed on November20, 2020).
10.5
Formof Indemnification Agreement, dated November16, 2020, between the Company and each of the officers and directors of the Company (incorporated by reference to Exhibit10.5 to the Companys Current Report on Form8-K filed on November20, 2020).
10.6
Securities Subscription Agreement, dated August24, 2020, between the Registrant and Pine Island Sponsor LLC (incorporated by reference to Exhibit10.3 to the Companys Registration Statement on FormS-1 filed on September23, 2020).
31.1
Certification of Chief Executive OfficerPursuanttoRules13a-14(a)and15d-14(a)undertheSecurities Exchange Act of 1934, as Adopted Pursuant to Section302 of the Sarbanes-Oxley Act of 2002.
31.2
Certification of Chief Financial OfficerPursuanttoRules13a-14(a)and15d-14(a)undertheSecurities Exchange Act of 1934, as Adopted Pursuant to Section302 of the Sarbanes-Oxley Act of 2002.
32.1
32.2
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
Item16.
### Form10-K Summary
None.<|endoftext|>December 31, 2020 and 2019, $0 was paid.
On June 28, 2017, we issued to two of our former executive officers a promissory note in the principal amount up to $100,000, which amount may be drawn upon by the Company as bridge financing for general working capital purposes. The promissory note accrues interest at a rate of 8.0% per annum and matures on the earlier of (i) one (1) year from the date of the promissory note, and (ii) the closing the sale of our securities in a single transaction or a series of related transactions from which at least $500,000 of gross proceeds are raised.
On July 5, 2018, we issued our officer 15 shares of Series D Preferred shares in exchange for the forgiveness of $200,000 worth of accrued debt owed to the officer by the us.
On January 8, 2019, the Company entered into a Master Product Development and Supply Agreement with C2M (see note 12). At December 31, 2019, accounts payable to C2M related to purchase of finish products amounted to $8,342. Ceed2Med is our largest stockholder.
On March 29, 2019, we retired a note payable owing to our former officer in the amount of $30,616. To retire the note, we issued the officer shares of common stock valued at $0.20 per share, for a total of 153,080 shares issued to retire the debt.
On March 1, 2019, we, through our majority-owned subsidiary, EOW, entered into a farm lease agreement for a lease term of one year. The lease premise is located in Cave Junction, Oregon and consists of approximately 100 acres. The lease requires us to pay 5% of the net income realized by us from the operation of the lease farm. Accordingly, we recognized $0 Right-of-use asset and lease liabilities on this farm lease as we have not determined when it will generate net income from this lease.
The lease premise is located in Glendale, Oregon and consists of approximately 100 acres.
On April 30, 2019, we through our majority-owned subsidiary, EOW, entered into a farm lease agreement for a lease term of one year. The lease requires the Company to pay $76,000 per year, whereby $38,000 was payable upon execution and $38,000 shall be payable on September 15, 2019 and 2% of the net income realized by us from the operation of the lease farm. We have paid the initial payment of $26,000 and the remaining $12,000 was paid directly to the landlord by an affiliated company who is renting the portion of the lease property from us.
-43-
On July 9, 2019, the Company entered into a Commercial Lease Agreement with Skybar Holdings, LLC, a Florida limited liability company. Pursuant to the lease, the Company will rent the entire first floor (consisting of approximately 4,000 square feet) of a property located in Delray Beach, Florida. The lessor of the premises is a limited liability company owned or controlled byBobby Yampolsky, a member of the Board and the founder, manager and controlling member ofCeed2Med, the Companys largest stockholder.
On July 31, 2019, we granted 10,000 Series E Preferred in connection with a Management and Services Agreement with Ceed2Med, our largest stockholder. We valued the 10,000 Series E Preferred shares which is equivalent into 6,250,000 common shares at a fair value of $0.54 per common share or $3,375,000 based on the sales of common stock on recent private placements on the dates of grant.
On September 13, 2019, we issued 2,000,000 shares of restricted common stock to officers and directors of the Company subject to vesting periods. As of March 31, 2020, 287,501 have vested and been issued. The remaining shares are not eligible for vesting, have been cancelled, and the awardees are no longer with the company.
During the nine months ended September 30, 2019, we reimbursed a managing member of EOW and an affiliated company which is owned by two managing members of EOW, for operating expenses paid on behalf of EOW for the following:
During October 2019, we entered into two short-term promissory notes for a total net proceeds of $85,000 with an officer and an investor. As of March 31, 2021 only the note with the officer remains with a balance.
During October 2019, we entered into a short-term promissory note for a total net proceeds of $50,000 and a principal amount of $55,556 with an officer (See Note 12 to financial statements).
We recognized revenues from a related party customer of $37,446 during the year ended December 31, 2019.
-44-
The affiliated company provided advances to the Company for working capital purposes for a total of $242,500 and the Company paid back these advances. The Company also advanced $127,500 to these related parties which resulted to a receivable or due from related parties of $127,500 as of December 31, 2019. These advances are short-term in nature, non-interest bearing and due on demand.
From January 31, 2020 through April 10, 2020, our Interim Executive Chairman, Bobby Yampolsky, made a series of advances to us in the approximate total amount of $97,000. O n January 21, 2021, the Company entered into a Settlement Agreement with Ceed2Med, LLC, Skybar Holding, LLC, and their principals cancelling all agreements, obligations and claims and providing full mutual releases of the Company and such persons.
On February 4, 2020, we entered into a Supply and Distribution Agreement with HTO Holdings Inc (dba Hemptown, USA). On March 28, 2020, we amended the Supply and Distribution Agreement. Ceed2Med, LLC, our largest shareholder, is also a significant investor in Hemptown USA and is party to a distribution agreement.
### Director Independence
We are not a listed issuer within the meaning of Item 407 of Regulation S-K and there are no applicable listing standards for determining the independence of our directors. Applying the definition of independence set forth in Rule 4200(a)(15) of The Nasdaq Stock Market, Inc., we believe that Julian Pittam and Larry Wert, are independent directors.
Item 14.
### P r incipal Accountant Fees and Services
The following table presents the aggregate fees billed for each of the last two fiscal years by the Companys independent registered public accounting firm, RBSM LLP, in connection with the audit of the Companys consolidated financial statements and other professional services rendered.
Audit fees represent the professional services rendered for the audit of the Companys annual consolidated financial statements and the review of the Companys consolidated financial statements included in quarterly reports, along with services normally provided by the accounting firm in connection with statutory and regulatory filings or other engagements. Audit-related fees represent professional services rendered for assurance and related services by the accounting firm that are reasonably related to the performance of the audit or review of the Companys consolidated financial statements that are not reported under audit fees.
All other fees represent fees billed for products and services provided by the accounting firm, other than the services reported for the other categories.
PreApproval Policy of Services Performed by Independent Registered Public Accounting Firm
The Audit Committees policy is to preapprove all audit and nonaudit related services, tax services and other services. Preapproval is generally provided for up to one year, and any preapproval is detailed as to the particular service or category of services and is generally subject to a specific budget. The Audit Committee has delegated the preapproval authority to its chairperson when expedition of services is necessary. The independent registered public accounting firm and management are required to periodically report to the full Audit Committee regarding the extent of services provided by the independent registered public accounting firm in accordance with this preapproval and the fees for the services performed to date.
-45-
PA
### RT IV
Item 15.
### E xhibits, Financial Statements Schedules
(a) Financial Statements and Schedules
(b)
Exhibits
101**
The following materials from the Companys Annual Report on Form 10-K for the year ended December 31, 2019 formatted in Extensible Business Reporting Language (XBRL).
101.INS
XBRL Instance Document
101.PRE
101.LAB
101.DEF
101.CAL
101.SCH
* Filed herewith.
Item 16. Form 10-K
S ummary.
Not Applicable.
-47-
S
IGN
### ATURES
Exactus, Inc.
By:
/s/ Alvaro Alberttis
### Alvaro Alberttis
### April 23, 2021
By:
/s/ Lawrence Wert
### Lawrence Wert
Executive Chairman and Director
April 23, 2021
By:
/s Jullian Pittam
### Julian Pittam
Director
April 23, 2021
By:
/s/ John Price
### John Price
Director
April 23, 2021
By:
/s/
### Alvaro Daniel Alberttis
Alvaro Daniel Alberttis
Director
April 23, 2021
-48-
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
The CEO to help develop the overall long-term strategy for the company. Until October of 2014, Ms. Tellem was President of Xbox Entertainment Studios where she oversaw Microsofts TV strategy and created a studio focused on the development and production of interactive programming. From 1997 to 2012, Ms. Tellem was President of the CBS Network Television Entertainment Group. She oversaw both CBS Entertainment Network and CBS Studios. Before CBS, Ms. Tellem was the Executive Vice President of Business and Financial Affairs for Warner Bros. Entertainment Inc. where she shepherded in such hits as ER and Friends. In 2006, Ms. Tellem was inducted into the Broadcasting & Cable Hall of Fame for her contributions to the electronic arts. Ms. Tellem is also expected to serve as a member of the board of directors of Gores Guggenheim, Inc. Ms. Tellem holds board and advisory positions at numerous digital and media-related companies, including Eko, Metro-Goldwyn-Mayer, Nielsen Holdings plc, LeagueApps, Inc., KODE Labs, Inc. and is a board member of Rocket Companies, Inc., Cranbrook Art Academy and Museum, and Seeds of Peace, Inc. She earned her B.A. from the University of California Berkeley, and received her J.D. from University of California, Hastings College of Law. Ms. Tellems significant business and management expertise make her well qualified to serve as a member of our board of directors.
The term of office of the second class of directors, consisting of Elizabeth Marcellino and Nancy Tellem, expires at the second annual meeting of stockholders.
### Director Independence
Our board of directors has determined that Randall Bort, Elizabeth Marcellino and Nancy Tellem are independent directors as defined in the
Nasdaq listing standards and applicable SEC rules.
### Officer and Director Compensation
### Audit Committee
Randall Bort, Elizabeth Marcellino and Nancy Tellem serve as members of our audit committee.
### Compensation Committee
Randall Bort, Elizabeth Marcellino and Nancy Tellem serve as members of our compensation committee. Randall Bort, Elizabeth Marcellino and Nancy Tellem are independent.
### Director Nominations
### Code of Ethics
Conflicts of Interest
Our amended and restated certificate of incorporation will contain a waiver of the corporate opportunity doctrine, which will provide that we renounce our interest in any corporate opportunity offered to any director or officer unless (i)such opportunity is expressly offered to such person solely in his or her capacity as a director or officer of our company, (ii)such opportunity is one we are legally and contractually permitted to undertake and would otherwise be reasonable for us to pursue and (iii)the director or officer is permitted to refer the opportunity to us without violating another legal obligation.
Further, Mr. Mr. Ted Fike and Mr. Technology II, two of the four directors on our board are not directors of Gores Metropoulos II, Gores Holdings V, Gores Holdings VII or Gores Guggenheim and (d) our management team has significant experience in identifying and executing multiple acquisition opportunities simultaneously, and we are not limited by industry or geography in terms of the acquisition opportunities we can pursue.
Additionally, our Initial Stockholders have agreed to waive their redemption rights with respect to any founder shares held by them if fail to consummate our initial business combination within 24 months after the IPO Closing Date.
Additionally, our Initial Stockholders have agreed to waive their redemption rights with respect to any founder shares held by them if we fail to consummate our initial business combination within 24 months after the IPO Closing Date. Since our Sponsor and officers and directors may directly or indirectly own common stock and warrants following the Public Offering, our officers and directors may have a conflict of interest in determining whether a particular target business is an appropriate business with which to effectuate our initial business combination because of their financial interest in completing an initial business combination within 24 months after the IPO Closing Date.
Furthermore, our amended and restated certificate of incorporation will provide that the doctrine of corporate opportunity will not apply with respect to any of our officers or directors in circumstances where the application of the doctrine would conflict with any fiduciary duties or contractual obligations they may have, and none of our directors or officers will be required to offer any such corporate opportunity of which he may become aware to us.
*
We are not prohibited from pursuing an initial business combination with a company that is affiliated with our Sponsor
, officers or directors.
Our amended and restated certificate of incorporation will provide that our officers and directors will be indemnified by us to the fullest extent authorized by Delaware law, as it now exists or may in the future be amended. In addition, our amended and restated certificate of incorporation will provide that our directors will not be personally liable for monetary damages to us or our stockholders for breaches of their fiduciary duty as directors, unless they violated their duty of loyalty to us or our stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived an improper personal benefit from their actions as directors.
Commencing on December 10, 2020, we have agreed to pay monthly recurring expenses of $20,000 to The Gores Group for office space, administrative and secretarial and administrative support. Our audit committee will review on a quarterly basis all payments that were made to our Sponsor, officers, directors and our or their affiliates and will determine which fees and expenses and the amount of expenses that will be reimbursed.
each of our officers and directors that beneficially own shares of our Common Stock; and all officers and directors as a group.
The following table does not reflect record or beneficial ownership of the Private Placement Warrants, as they are not exercisable within 60 days of May 18, 2021.
*
Less than one percent.
(1)
This table is based on 34,500,000 shares of Common Stock outstanding as of March 12, 2021.
(2)
(3)
Gores. Mr.
(4)
According to Schedule 13G filed on January 11, 2021. The business address of Guggenheim Capital, LLC is 227 West Monroe Street, Chicago, IL 60606.
(5) According to Schedule 13G filed on February 16, 2021. The business address of Suvretta Capital Management, LLC is 540 Madison Avenue, 7th Floor, New York, New York 10022.
Our
Initial Stockholders will beneficially own 20% of the then-issued and outstanding shares of our common stock (assuming they do not purchase any units in the Public Offering) and will have the right to appoint all of our directors prior to our initial business combination by reason of their ownership of founder shares. Because of this ownership block, our Initial Stockholders may be able to effectively influence the outcome of all matters requiring approval by our stockholders, including the election of directors, amendments to our amended and restated certificate of incorporation and approval of significant corporate transactions, including approval of our initial business combination.
Our Sponsor and our officers and directors are deemed to be our promoters as such term is defined under the federal securities laws.
ITEM 13.
### Founder Shares
On the IPO Closing Date, our Sponsor purchased 4,450,000 Private Placement Warrants at a price of $2.00 per warrant, or $8,900,000.
The Initial Stockholders have agreed, subject to certain limited exceptions, not to transfer, assign or sell any
Private Placement Warrants and the Common Stock underlying such
Private Placement Warrants until 30 days after the completion of our Business Combination (such period, together with the Founder Shares Lock-Up Period, the Lock-Up Periods).
### Registration Rights
Related Party Notes
On
December 10
, the Company entered into an agreement to pay monthly recurring expenses to The Gores Group of $20,000 for office space, utilities and secretarial support.
### Director Independence
Bort, Ms. Marcellino and Ms. Tellem are independent directors as defined in the Nasdaq listing standards and applicable SEC rules.
Fees for professional services provided by our independent registered public accounting firm since June 29, 2020 include:
(1)
Audit Fees.
(2)
Audit-Related Fees.
(3)
Tax Fees.
(4)
All Other Fees.
*Filed herewith.<|endoftext|>Committee meeting attended telephonically and a cash payment of $500 per Board or committee meeting attended in person. In January, 2021, the Governance, Compensation and Nominating Committee eliminated the payment of meeting attendance fees by granting stock. For the 2021 attendance fees, the Committee provide each Board member with shares representing of $4,000 of value per director, or 1,300 shares. In addition, each non-employee director is initially granted an option exercisable for 10,000 shares of the Companys common stock, which vests quarterly over two years subject to continuing service to the Company. Board members also receive discretionary annual equity compensation awards in the form of stock options, based upon the Governance, Compensation and Nominating Committees evaluation of the contribution of the director to the overall functioning of the Board. In addition, a quarterly cash retainer of $6,000 is paid to the Lead Independent Director, an annual retainer of $10,000 is paid to the chairman of the Governance, Compensation and Nominating Committee and an annual cash retainer of $20,000 is paid to the chairman of the Audit Committee.
The following table shows all outstanding equity awards held by each person serving as a director of the Company at the end of 2020.
(1)
(2)
50% vested immediately on the date of grant and one-twelfth (1/12) of the remaining 50% shares subject to the option vest every three months following the date of grant.
(3)
Warrants fully vested on the date of grant.
(4)
One-twelfth (1/8) of the shares subject to the warrant vest every three months following the date of grant.
Item 12.
Security Ownership by Certain Beneficial Owners and Management
The following table sets forth information as of April 5, 2021, regarding the beneficial ownership of each class of our voting stock, including (a) each stockholder who is known by the Company to own beneficially in excess of 5% of each class of our voting stock; (b) each director; (c) the Companys named executive officers; and (d) the Companys executive officers and directors as a group. Except as otherwise indicated, all persons listed below have (i) sole voting power and investment power with respect to their shares of stock, except to the extent that authority is shared by spouses under applicable law, and (ii) record and beneficial ownership with respect to their shares of stock. The percentage of beneficial ownership of common stock is based upon 30,030,300 shares of common stock outstanding as of April 5, 2021. The percentage of beneficial ownership of Series B preferred stock is based upon 1,323,394 shares of Series B preferred stock outstanding as of April 5, 2021. Unless otherwise identified, the address of the directors and officers of the Company is 20400 Stevens Creek Blvd., Suite 700, Cupertino, CA 95014.
The information required regarding equity compensation plans is incorporated herein by reference from the Item. 11 to this Amendment No. 1 on Form 10-K/A.
Item 13.
The following are transactions entered into in fiscal years 2020 and 2019 and any currently proposed transaction, (i) in which the Company was or is to be a participant, (ii) the amount involved exceeds $120,000, and (iii) in which any director, executive officer, five percent stockholder or any member of the immediate family of any of the foregoing persons had or will have a direct or indirect material interest.
The Audit Committee is responsible for reviewing and approving in advance any proposed related person transactions. The Governance, Compensation and Nominating Committee is also responsible for reviewing the Companys policies with respect to related person transactions and overseeing compliance with such policies.
The Company owes Eric McAfee, the Companys Chairman and CEO, and McAfee Capital LLC (McAfee Capital), owned by Eric McAfee, $1.1 million in connection with employment agreements and expense reimbursements previously accrued as salaries expense and accrued liabilities. The balance accrued related to these employment agreements was $0.4 million as of December 31, 2019. For the years ended December 31, 2020 and 2019, the Company expensed $23 thousand and $36 thousand, respectively, to reimburse actual expenses incurred by McAfee Capital and related entities. The Company previously prepaid $0.2 million to Redwood Capital, a company controlled by Eric McAfee, for the Companys use of flight time on a corporate jet. As of December 31, 2020, $0.1 million remained as a prepaid expense.
As consideration for the reaffirmation of guaranties required by Amendment No. 13 and 14 to the Note Purchase Agreement which the Company entered into with Third Eye Capital on March 1, 2017 and March 27, 2018 respectively, the Company also agreed to pay $0.2 million annually as consideration to McAfee Capital in exchange for its willingness to provide the guaranties. On May 7, 2020 the Audit Committee of the Company approved a guarantee fee of 0.4% on the outstanding balance of Third Eye Capital Notes annually. The balance of $0.8 million and $0.3 million remained as an accrued liability for guaranty fees as of December 31, 2020 and December 31, 2019, respectively.
The Company owes various members of the Board amounts totaling $1.2 million as of December 31, 2020 and December 31, 2019, for each period, in connection with board compensation fees, which are included in accounts payable on the balance sheet. For the years ended December 31, 2020 and 2019, the Company expensed $0.4 million and $0.3 million, respectively, in connection with board compensation fees.
We employ Mr. Adam McAfee as Vice President, Finance at the base salary of $180,000. Mr. Adam McAfee is the brother of Mr. Eric McAfee, our Chief Executive Officer and Chairman of the Board. Mr. Adam McAfee received compensation, including stock option of $33,448 during the fiscal year 2020 and, $30,546 during the fiscal year 2019.
### Board Independence
The Board of Directors has determined that all of its current directors except Eric A. McAfee, who currently serves as Aemetis Chief Executive Officer, are independent directors within the meaning set forth in the applicable rules and regulations of the SEC and The NASDAQ Stock Market LLC, as currently in effect
Item 14.
Auditor Fee and Services in Fiscal Years 2019 and 2020
RSM US LLP was appointed as our registered independent public accountant on May 21, 2012. The fees billed by RSM US LLP for the audits of the 2019 and 2020 financial statements are as follows:
Audit Fees consist of fees billed for professional services rendered for the audit of the Companys consolidated annual financial statements, and review of the interim consolidated financial statements included in quarterly reports and services that normally provided by RSM US LLP in connection with statutory and regulatory filings or engagements.
Audit-Related Fees consist of assistance provided with respect to the Form S-8, Prospectus Supplement and Comfort Letters.
Audit Committees Pre-Approval Policies and Procedures
Consistent with policies of the SEC regarding auditor independence and the Audit Committee charter, the Audit Committee has the responsibility for appointing, setting compensation and overseeing the work of the registered independent public accounting firm (the Firm). The Audit Committees policy is to pre-approve all audit and permissible non-audit services provided by the Firm. Pre-approval is detailed as to the particular service to category of services and is generally subject to a specific budget. The Audit Committee may also pre-approve particular services on a case-by-case basis. In assessing request for services by the Firm, the Audit Committee considers whether such services are consistent with the Firms independence, whether the Firm is likely to provide the most effective and efficient service based upon their familiarity with the Company, and whether the service could enhance the Companys ability to manage or control risk or improve audit quality.
In fiscal years 2019 and 2020, all fees identified above under the captions Audit Fees and Audit-Related Fees that were billed by RSM US LLP were approved by the Audit Committee in accordance with SEC requirements.
### PART IV
Item 15.
(a) The following documents are filed as a part of this Form 10-K/A:
1. Financial Statements:
All financial statements are omitted for the reason that they are not required or the information is otherwise supplied in Item 8. Financial Statements and Supplementary Data in the 2020 10-K filed on March 15, 2021.
2. Financial Statement Schedules:
### None
3. Exhibits:
The exhibits listed on the accompanying Exhibit Index are filed or incorporated by reference as part of this report.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
### EXPLANATORY NOTE
This Amendment No. 1) is being filed to amend the Federal Home Loan Bank of Atlantas (Bank) Annual Report on Form 10-K for the fiscal year ended December 31, 2020 (Original Filing), filed with the U.S. Securities and Exchange Commission on March 4, 2021 (Original Filing Date). 1 is to reflect the final delivered and signed (Report) of PricewaterhouseCoopers LLP (PwC)
The Report was timely provided by PwC and received by the Bank at the time of the Original Filing.
Except as described above, no changes have been made to the Original Filing and this Amendment No. This Amendment No.
1 also contains new certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, which are attached hereto. 1 and this Amendment No.
Item 8.
To the Board of Directors and Shareholders of the Federal Home Loan Bank of Atlanta
We have audited the accompanying statements of condition of the Federal Home Loan Bank of Atlanta (the FHLBank) as of December 31, 2020 and 2019, and the related statements of income, of comprehensive income, of capital and of cash flows for each of the three years in the period ended December 31, 2020, including the related notes (collectively referred to as the financial statements). We also have audited the FHLBank's internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of the FHLBank as of December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2020 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the FHLBank maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO.
### Basis for Opinions
The FHLBank's management is responsible for these financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Managements Report on Internal Control Over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on the FHLBanks financial statements and on the FHLBank's internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the FHLBank in accordance with the U.S.
Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.
Our audits of the financial statements included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks.
### Critical Audit Matters
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be communicated to the audit committee and that (i) relates to accounts or disclosures that are material to the financial statements and (ii) involved our especially challenging, subjective, or complex judgments.
Valuation of Interest-Rate Related Derivatives and Hedged Items
As described in Notes 15 and 16 to the financial statements, the FHLBank uses derivatives to reduce funding costs and to manage its exposure to interest-rate risks, among other objectives. The total notional amount of derivatives as of December 31, 2020 was $35 billion, of which 80% were designated as hedging instruments, and the fair value of derivative assets and liabilities as of December 31, 2020 was $391 million and $11 million, respectively. The fair values of interest-rate related derivatives and hedged items are calculated using a discounted cash flow analysis, which utilizes market-observable inputs. The significant assumptions used in the model include discount rates, market indices, and market volatility.
The principal considerations for our determination that performing procedures relating to the valuation of interest-rate related derivatives and hedged items is a critical audit matter are the significant audit effort in evaluating the discount rates, market indices, and market volatility assumptions used to fair value these derivatives and hedged items, and the audit effort involved the use of professionals with specialized skill and knowledge.
These procedures included testing the effectiveness of controls relating to the valuation of interest-rate related derivatives and hedged items, including controls over the model, data and assumptions. These procedures also included, among others, the involvement of professionals with specialized skill and knowledge to assist in developing an independent range of prices for a sample of interest-rate related derivatives and hedged items and comparison of managements estimate to the independently developed ranges. Developing the independent range of prices involved testing the completeness and accuracy of data provided by management and independently developing the discount rates, market indices, and market volatility assumptions.
### Atlanta, Georgia
March 4, 2021
We have served as the FHLBanks auditor since 1990.
Item 15.
Exhibit No.
### Exhibit Description
Form
Exhibit
Dated Filed
3.1
Amended and Restated Organization Certificate of the Federal Home Loan Bank of Atlanta.
8-K
3.1
10/26/12
3.2
Bylaws of the Federal Home Loan Bank of Atlanta (Revised and Restated through October 31, 2019).
8-K
3.1
10/31/19
4.1
Capital Plan of the Federal Home Loan Bank of Atlanta.
8-K
99.2
8/5/11
4.2
Description of the Banks Capital Stock.
10-K
4.2
3/5/20
10.1
Federal Home Loan Bank of Atlanta Benefit Equalization Plan (2018 restatement).*
10-K
10.1
3/8/18
10.2
Amendment One to the Federal Home Loan Bank of Atlanta Benefit Equalization Plan.*
8-K
10.1
1/28/20
10.3
Federal Home Loan Bank of Atlanta Deferred Compensation Plan (2009 revision).*
8-K
10.1
1/9/09
10.4
Form of Officer and Director Indemnification Agreement.*
10-12G
10.5
3/17/06
10.5
Federal Home Loan Bank of Atlanta 2021 Directors Compensation Policy.*++
10.6
Federal Home Loan Bank of Atlanta Omnibus Annual Incentive Compensation Plan (as amended January 26, 2012).*
10-K
10.8
3/23/12
10.7
Employment Agreement, effective as of January 1, 2014, between the Bank and W. Wesley McMullan.*
10-K
10.6
3/14/14
10.8
Federal Home Loan Bank of Atlanta Executive Change in Control Severance Plan, effective January 1, 2017.
10-K
10.7
3/9/17
10.9
Amended and Restated Federal Home Loan Banks P&I Funding and Contingency Plan Agreement, effective as of January 1, 2017, by and among the Office of Finance and each of the Federal Home Loan Banks.
10-K
10.8
3/9/17
10.10
Amended Joint Capital Enhancement Agreement by and among each of the Federal Home Loan Banks.
8-K
99.1
8/5/11
31.1
Certification of the President and Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.2
Certification of the Senior Vice President and Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1
Certification of the President and Chief Executive Officer and Senior Vice President and Chief Financial Officer pursuant to 18 U.S.C. Section 135, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.+
99.1
Audit Committee Report.+
101.INS
+
101.SCH
XBRL Taxonomy Extension Schema Document.**
101.CAL
XBRL Taxonomy Extension Calculation Linkbase Document.+
101.DEF
XBRL Taxonomy Extension Definition Linkbase Document.+
101.LAB
XBRL Taxonomy Extension Label Linkbase Document.**
101.PRE
XBRL Taxonomy Extension Presentation Linkbase Document.**
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101)**
* Denotes management contract or compensatory plan.
** Filed herewith.
+ Previously furnished with the Banks Annual Report on Form 10-K filed with the Commission on March 4, 2021.
++ Previously filed with the Banks Annual Report on Form 10-K filed with the Commission on March 4, 2021.<|endoftext|>UNITED STATES
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(MarkOne)
### ANNUAL REPORT
PURSUANT TO SECTION13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF1934
OR
### TRANSITION REPORT
PURSUANT TO SECTION13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF1934 FOR THE TRANSITION PERIOD FROM TO
Commission File Number001-39403
### East Resources Acquisition Company
Delaware
85-1210472
(I.R.S. Employer
### Identification No.)
7777 NW Beacon Square Boulevard
Boca Raton, Florida
(Zip Code)
Registrants telephone number, including area code: (561) 826-3620
### Title of each class
Trading
Symbol(s)
### Name of each exchange on which registered
Units
, each consisting of one share of Class A common stock and one-half of one warrant
### ERESU
The NASDAQ Stock Market LLC
Class A common stock, par value $0.0001 per share
### ERES
The NASDAQ Stock Market LLC
Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share
### ERESW
The NASDAQ Stock Market LLC
Securities registered pursuant to Section12(g) of the Act:
### None
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule405 of the Securities Act.YES
NO
Indicate by check mark if the Registrant is not required to file reports pursuant to Section13 or 15(d) of the Act. YES
NO
### Indicate by check mark whether the Registrant
: (1)has filed all reports required to be filed by Section13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12months (or for such shorter period that the Registrant was required to file such reports), and (2)has been subject to such filing requirements for the past 90days. YES
NO
Indicate by check mark whether the Registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule405 of Re gulationS-T (232.405 of this chapter) during the preceding 12months (or for such shorter period that the Registrant was required to submit such files). YES
NO
Indicate by check mark whether the registrant is a large accelerated filer, an accelerate d filer, a non-accelerated filer
, smaller reporting company
, or an emerging growth company
### See the definitions of large accelerated filer
, accelerated filer, smaller reporting company
, and emerging growth company in Rule 12b-2 of the Exchange Act.
### Largeacceleratedfiler
Acceleratedfiler
Non-accelerated filer
### Smaller reportingcompany
Emerging growth company
If an emerging growth company
, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Indicate by check mark whether the Registrant is a shell company
(as defined in Rule12b-2 of the Exchange Act). YES
NO
The registrant was not a public company as of June 30, 2020 and therefore it cannot calculate the aggregate market value of its voting and non-voting common equity held by non-affiliates as of such date.
As of July 16, 2021, there were 34,500,000 shares of the Companys Class A common stock, par value $0.0001 per share, and 8,625,000 shares of the Companys Class B Common Stock, par value $0.0001 per share, issued and outstanding.
i
CERTAIN TERMS
U nless otherwise stated in this Annual Report on Form 10-K/A, references to: we, us, company or our company are to East Resources Acquisition Company;
Board refers to our board of directors; equity-linked securities are to any securities of our company which are convertible into or exchangeable or exercisable for, common stock of our company; founder shares are to shares of our Class B common stock initially purchased by our sponsor in private placements prior to our initial public offering
, and the shares of our Class A common stock issued upon the conversion thereof as provided herein; initial stockholders are to our sponsor and any other holders of our founder shares prior to our initial public offering; public shares are to shares of our Class A common stock sold as part of the units in our initial public offering (whether they were purchased in the initial public offering or thereafter in the open market); public stockholders are to the holders of our public shares, including our initial stockholders and members of our management team, Board to the extent any of them purchases public shares, provided that each such initial stockholders and individuals status as a public stockholder shall only exist with respect to such public shares; public warrants are to our warrants sold as part of the units in our initial public offering (whether they were purchased in our initial public offering or thereafter in the open market) and to any private placement warrants or warrants issued upon conversion of working capital loans that are sold to third parties that are not initial purchasers or officers or directors (or permitted transferees) following the consummation of our initial business combination; specified future issuance are to an issuance of a class of equity or equity-linked securities to specified purchasers that we may determine to make in connection with financing our initial business combination; sponsor are to East Sponsor, LLC, a Del aware limited liability company; and warrants are to our warrants, which includes the public warrants as well as the private placement warrants.
### EXPLANATORY NOTE
East Resources Acquisition Company (the Company, we, our or us) is filing this Annual Report on Form 10-K/A (Amendment No. 1 or this Amendment), to amend our Annual Report on Form 10-K for the year ended December 31, 2020, originally filed with the Securities and Exchange Commission, or the SEC, on March 26, 2021 (the Original Filing), to restate our financial statements as of and for the period ended December 31, 2020. We are also restating the financial statements as of July 27, 2020 and as of and for the period ended September 30, 2020 in the accompanying financial statements included in this Annual Report (collectively, the Original Financial Statements).
In the process of evaluating its financial statements we also reassessed the accounting for our forward purchase agreement and determined that the obligation to issue FPA Shares and FPA Warrants represents a forward contract that meets the definition of derivative liability in accordance with ASC 815-40. Based on this reassessment, we determined that the forward contract should be classified as a liability measured at fair value upon issuance, with subsequent changes in fair value reported in our Statement of Operations each reporting period.
The Company also restated its financial statements to classify all Class A common stock in temporary equity. In accordance with the SEC and its staffs guidance on redeemable equity instruments, which has been codified in ASC 480-10-S99, Distinguishing Liabilities from Equity SEC Materials (ASC 480-10-S99), redemption provisions not solely within the control of the Company require common stock subject to redemption to be classified outside of permanent equity. The Company had previously classified 1,636,578 shares in permanent equity. Although the Company did not specify a maximum redemption threshold, its charter provides that currently, the Company will not redeem its public shares in an amount that would cause its net tangible assets to be less than $5,000,001. The Company restated its financial statements to classify all Class A common stock as temporary equity and any related impact, as the threshold in its charter would not change the nature of the underlying shares as redeemable and thus would be required to be disclosed outside of permanent equity.
As a result, on May 18, 2021, after consultation with the Companys board of directors, management concluded that the Original Financial Statements should no longer be relied upon and are to be restated in order to correct the classification error.
The Company has not amended its Current Report on Form 8-K filed on July 31, 2020 for the period affected by the restatement.
Except as described above, this Amendment does not amend, update or change any other items or disclosures contained in the Original Filing, and accordingly, this Amendment does not reflect or purport to reflect any in formation or events occurring after the original filing date or modify or update those disclosures affected by subsequent events. Accordingly, this Amendment should be read in conjunction with the Original Filing and the Companys other filings with the SE
C.
### Restatement Background
Part I Item 1A. Risk Factors.
Part II Item 7.
Part II Item 8.
Part II Item 9A. Controls and Procedures.
Part IV Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
### Explanatory Note
This amended annual report on Form 10-K/A amends the annual report on Form 10-K of Bank of Marin Bancorp ("Registrant") for the year ended December 31, 2020, which was initially filed with the Securities and Exchange Commission on March 15, 2021 (the "Original Filing") for the sole purpose of including the signature of Moss Adams LLP, the Registrant's independent registered public accounting firm, in one place where the signature was inadvertently omitted in the Original Filing. The signature was timely provided by Moss Adams LLP and received by the Registrant at the time of the Original Filing. We have not modified or updated disclosures presented in the Original Filing except by amending the - Opinions on the Consolidated Financial Statements and Internal Control over Financial Reporting to include the signature of Moss Adams LLP, the Registrant's independent registered public accounting firm.
Three pages of the Form 10-K have been corrected as a result of this Amendment solely to add "/s/ Moss Adams LLP":
1.
Item 8. Financial Statements and Supplementary Data, pp 46-48 of the annual report on Form 10-K.
These three pages, as amended, read as follows:
PART II
Bank of Marin Bancorp
We have audited the accompanying consolidated statements of condition of Bank of Marin Bancorp and subsidiary (the Company) as of December 31, 2020 and 2019, the related consolidated statements of comprehensive income, changes in stockholders equity, and cash flows for each of the three years in the period ended December 31, 2020, and the related notes (collectively referred to as the consolidated financial statements). We also have audited the Companys internal control over financial reporting as of December 31, 2020, based on criteria established in
Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of the Company as of December 31, 2020 and 2019, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2020, in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020, based on criteria established in
Internal Control - Integrated Framework (2013) issued by COSO.
As discussed in Note 1 to the consolidated financial statements, the Company changed its method of accounting for credit losses effective December 31, 2020, due to the adoption of Accounting Standards Codification Topic 326:
Financial Instruments Credit Losses
(Topic 326). The Company adopted the new credit loss standard using the modified retrospective approach such that prior period amounts are not adjusted and continue to be reported in accordance with previously applicable generally accepted accounting principles. The adoption of the new credit loss standard and it subsequent application is also communicated as a critical audit matter below.
### Basis for Opinions
The Companys management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management Report on Internal Control over Financial Reporting.
### Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was communicated or required to be communicated to the audit committee and that (1) relates to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgments.
Allowance for Credit Losses - Loans
As discussed in Notes 1 and 3 to the consolidated financial statements, the allowance for credit losses on loans at December 31, 2020, was $22.9 million on a total loan portfolio of $2.1 billion. The Company adopted the current expected credit losses standard, and all related amendments as of December 31, 2020, and has an established process to determine the appropriateness of the allowance for credit losses on loans receivable.
The allowance for credit losses provides an estimate of lifetime expected losses in the loan portfolio. The measurement of expected credit losses is based on relevant available information, from internal and external sources, relating to past events, current conditions, and reasonable and supportable forecasts that affect the collectability of the financial assets.
We identified the allowance for credit losses on loans as a critical audit matter. The principal considerations for our determination of allowance for credit losses on loans as a critical audit matter are subjectivity of the estimation and application of forecasted economic conditions, probabilities of default, loss given default, prepayments and curtailments over the contractual terms of the loan, and qualitative internal and external risk factors used in the calculation of the allowance for credit losses.
The economic forecast component of the allowance for credit losses on loans is used to compare the conditions that existed during the historical period to current conditions and future expectations. The probabilities of default and loss given default are used to establish estimated losses at the loan portfolio segment level. Prepayments and curtailments over the contractual terms of the loans are used to estimate future cash flows. The qualitative internal and external risk factors are used to adjust for differences in segment-specific risk characteristics or to reflect the extent to which expected current conditions and reasonable and supportable forecasts of economic conditions differ from conditions that existed during the historical period included in the probability of default and loss given default development. Auditing managements judgements regarding forecasted economic conditions, probabilities of default, loss given default, prepayments and curtailments over the contractual terms of the loan, and qualitative internal and external risk factors applied to the allowance for credit losses involved a high degree of subjectivity.
The primary procedures we performed to address this critical audit matter included: a.
Test the design, implementation, and operating effectiveness of controls related to managements calculation of the allowance for credit losses on loans, including controls over the forecasted economic conditions used, probabilities of default, loss given default, prepayments and curtailments, and qualitative internal and external risk factors used.
b.
Obtaining managements analysis and supporting documentation related to the forecasted economic conditions, and testing whether the forecasts used in the calculation of the allowance for credit losses on loans are reasonable and supportable based on the analysis provided by management.
c.
Obtaining managements analysis and supporting documentation related to the probabilities of default, and loss given default, and testing whether factors used in the calculation of the allowance for credit losses on loans are reasonable and supportable based on the analysis provided by management.
d.
Obtaining managements analysis and supporting documentation related to prepayments and curtailments, and testing whether factors used in the calculation of the allowance for credit losses on loans are reasonable and supportable based on the analysis provided by management.
e.
Obtaining managements analysis and supporting documentation related to the qualitative factors, and testing whether the environmental and qualitative factors used in the calculation of the allowance for credit losses on loans are supported by the analysis provided by management.
f.
Testing the appropriateness of the methodology and assumptions used in the calculation of the allowance for credit losses on loans, as well as testing completeness and accuracy of the data used in the calculation, application of the forecasted economic conditions, probabilities of default, loss given default, prepayments and curtailments over the contractual terms of the loan, and factors determined by management and used in the calculation, and verifying calculations in the allowance for credit losses on loans.
/s/ Moss Adams LLP
### Los Angeles, California
March 15, 2021
We have served as the Companys auditor since 2004.
PART IV
ITEM 15.<|endoftext|>ShiftPixy, Inc. 1) to its annual report on
Form 10-K for the fiscal year ended August 31, 2020 (the Original Report), as filed with the Securities and Exchange Commission on November 30, 2020, in order to amend Item 13. The revisions to Item 13 are made to provide disclosure for certain related party transactions that were erroneously omitted and to eliminate disclosure for certain related party transactions that occurred prior to September 1, 2018.
As required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the Exchange Act), certifications by the Companys principal executive officer and principal financial officer are filed as exhibits to this Amendment No. Additionally, this Amendment No. 1 does not include the certifications under Section 906 of the Sarbanes-Oxley Act of 2002, as no financial statements are being filed with this Amendment No. 1.
1 does not modify or update disclosure in, or exhibits to, the Original Report. 1 does not change any previously reported financial results, nor does it reflect events occurring after the date of the Original Report. Information not affected by this Amendment No. 1 remains unchanged and reflects the disclosures made at the time the Original Report was made. 1 should be read in conjunction with the Original Report and the Company's other filings with the Securities and Exchange Commission.
Item 13.
The following is a summary of transactions since September 1, 2018 to which we have been a participant in which the amount involved exceeded or will exceed $120,000, and in which any of our then directors, executive officers or holders of more than 5% of any class of our capital stock at the time of such transaction, or any members of their immediate family, had or will have a direct or indirect material interest, other than compensation arrangements which are described in Item 11. Executive Compensation. For purposes of this Item 13, Fiscal 2020 refers to the fiscal year ended August 31, 2020 and Fiscal 2019 refers to the fiscal year ended August 31, 2019.
### Director Compensation
On August 9, 2018, Kenneth Weaver, our Audit Committee chair and independent director, was granted 12,296 shares of our common stock at a fair value at the time of issuance of $37,500 or $3.05 per share. The shares in connection with such issuance were deemed to have been purchased and immediately vested on August 9, 2018, as a consequence of Mr. An additional 12,296 shares were also committed on August 9, 2018, to issue through the 2017 Plan to Mr. Weaver, at a fair value of $37,500 or $3.05 per share, and deemed to have been purchased and immediately vested on November 30, 2018, as a consequence of Mr.
On April 16, 2019, Whitney White, one of our independent directors, was issued 16,448 shares of our common stock for services rendered valued at $37,500 at a fair value at the time of issuance of $2.28 per share.
On August 19, 2019, Mr. Weaver was issued 79,788 shares of our common stock for services rendered valued at $37,500 at a fair value of $0.47 per share.
On December 23, 2019, pursuant to the terms of his director agreement, we issued to Mr. White 428 shares of our common stock, valued at $37,500 or $87.62 per share.
On February 10, 2020, Amanda Murphy was appointed to our Board of Directors. Ms. Murphy is our Director of Operations and received approximately $240,000 and $218,000 in salaried compensation in Fiscal 2020 and Fiscal 2019, respectively. During the first quarter of Fiscal 2021, in connection with her relocation to Miami, Florida as part of the relocation of our principal executive offices, Ms. Murphy received a one-time incentive payment of approximately $80,000 in addition to reimbursement of her expenses associated with her relocation.
During the first quarter of Fiscal 2021, Scott Absher, our CEO and Board Chair, received a one-time incentive payment of approximately $160,000 in connection with his relocation to Miami, Florida as part of the relocation of our principal executive offices, in addition to reimbursement of his expenses associated with his relocation.
### J. Stephen Holmes
On June 6, 2019, J. Stephen Holmes, our non-employee Sales Manager and one of our founders and a significant shareholder (after giving effect to unexercised Preferred Options, as defined below), was advanced $325,000 in cash. On July 18, 2019, Mr. Holmes repaid the advance by returning 558,132 shares of common stock to the Company at a fair value of $0.58 per share. We classified these shares as treasury stock, which were retired in Fiscal 2020. In addition, we incurred $750,000 in professional fees for services provided by Mr. Holmes in each of Fiscal 2020 and Fiscal 2019.
### Preferred Options
On January 3, 2020, effective January 1, 2020, we entered intoan asset purchase agreement with Shiftable HR Acquisition, LLC, part of Vensure Employer Services, Inc. (the Vensure Asset Sale). Upon the consummation of the Vensure Asset Sale, the holders of our options to acquire our preferred stock (the Preferred Options) obtained the right to exercise each Preferred Option to purchase one share of our preferred stock for $0.0001 per share. Each share of preferred stock is convertible into common stock on a one-for-one basis. As of the date of this Amendment, there are outstanding Preferred Options exercisable to purchase up to
11,840,070 shares of preferred stock which are convertible into an equal number of shares of common stock. Scott W. Absher, our Chief Executive Officer and director, exercised all of his 12,500,000 Preferred Options on June 4, 2020. Mr. Holmes owns 11,790,000 Preferred Options which are outstanding as of the date of this Amendment. The Preferred Options held by Mr. Holmes became exercisable to purchase preferred stock upon the occurrence of the Vensure Asset Sale. Additionally, at some point in the future we intend to adopt a second grant of options granting an additional 12,500,000 Preferred Options to each of Messrs. Absher and Holmes whereby each option will permit the holder to acquire one share of our preferred stock for $0.0001 per share.
### Related Persons to Scott Absher
Mark Absher, the brother of Scott Absher, was previously employed as our Registered In-House Counsel, Director and Secretary. Mr. Absher resigned from his positions with the Company on February 6, 2019 and received compensation of $276,951 in Fiscal 2019.
David May, a member of our business development team, is the son-in-law of Scott Absher. Mr. May received compensation, including sales commissions, of approximately $132,000 and $107,728 in Fiscal 2020 and Fiscal 2019, respectively. Mr. Mays compensation package for Fiscal 2021 is $125,000 in salary plus commissions earned. In addition, in connection with his relocation to Miami, Florida, as part of the relocation of our principal executive offices, Mr. May received a one-time incentive payment of approximately $80,000 during the first quarter of Fiscal 2021, in addition to reimbursement for expenses associated with his relocation.
Phil Eastvold, the Executive Producer of ShiftPixy Labs, is the son-in-law of Scott Absher. Mr. Eastvold was hired on September 1, 2020 and therefore did not receive any compensation in Fiscal 2020 or Fiscal 2019. Mr. Eastvolds salary for Fiscal 2021 is $200,000. In addition, in connection with his relocation to Miami, Florida as part of the relocation of our principal executive offices, Mr. Eastvold received a one-time incentive payment of approximately $88,000 during the first quarter of Fiscal 2021, in addition to reimbursement for expenses associated with his relocation.
Connie Absher, (the spouse of Scott Absher), Elizabeth Eastvold, (the daughter of Scott Absher and spouse of Mr. Eastvold), and Hannah Absher, (the daughter of Scott Absher), are also employed by the Company. Andrew Absher, the nephew of Scott Absher and the son of Mark Absher, was employed by the Company through May 29, 2019. These individuals, as a group, received aggregate compensation of $182,500 and $185,744 in Fiscal 2020 and Fiscal 2019, respectively. In addition, in connection with her relocation to Miami, Florida as part of the relocation of our principal executive offices, Hannah Absher received a one-time incentive payment of approximately $18,000 during the first quarter of Fiscal 2021, in addition to reimbursement for expenses associated with her relocation.
### Director Independence
Our board of directors has determined that three of our board members, Kenneth Weaver, Whitney White, and Christopher Sebes, qualify as independent as the term is used in Item 7(d)(3)(iv)(B) of Schedule 14A under the Securities Exchange Act of 1934, as amended, and as defined by Rule 4200(a)(15) of the NASDAQ Marketplace Rules.
PART IV
Item 15.Exhibits
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
To be pre-approved by the audit committee in accordance with its charter. In fiscal 2020 and 2019, Freed Maxick had no direct or indirect financial interest in Corning in the capacity of promoter, underwriter, voting director, officer or employee.
ITEM 15.
### Exhibit
No.
Description
3.1
The Holding Companys Certificate of Incorporation, (included as Exhibit B to the Proxy Statement/Prospectus forming portion of the Form S-4)
3.2
Second Amended and Restated By-laws of Corning Natural Gas Holding Corporation, effective February 6, 2018 (incorporated by reference to Exhibit 3.2 of the Companys Current Report on Form 8-K dated February 6, 2018)
3.7
Certificate of Amendment to the Certificate of Incorporation with respect to the number of shares of common stock and preferred stock filed with the Department of State of the State of New York on May 1, 2018 (incorporated by reference to Exhibit 3.1 of the Companys Current Report on Form 8-K dated May 1, 2018)
3.8
Certificate of Amendment of the Certificate of Incorporation of Corning Natural Gas Holding Corporation authorizing 261,500 Shares of 6% Series A Cumulative Preferred Stock Filed with the Department of State of the State of New York on June 29, 2020 (incorporated by reference to Exhibit 3.1 of the Companys Current Report on Form 8-K dated June 29, 2020)
4.4*
Corning Natural Gas Holding Corporation 2018 Employee Long-Term Incentive Plan (incorporated by reference to Appendix 1 of the Companys definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on March 22, 2018)
10.1*
Employment Agreement dated November 30, 2006 between Michael German and the Company (incorporated by reference to Exhibit 10.2 of the Companys Current Report on Form 8-K dated November 30, 2006)
10.2*
Amended and Restated Severance Agreement effective August 18, 2006 between the Company and Kenneth J. Robinson (incorporated by reference to Exhibit 10.18 of the Companys Current Report on Form 8-K dated August 14, 2006)
10.3*
First Amendment to Employment Agreement between Michael I. German and the Company dated December 31, 2008 (incorporated by reference to Exhibit 10.1 of the Companys Current Report on Form 10-Q dated August 12, 2009)
10. 4
Amended and Restated 2007 Stock Plan (incorporated by reference to Exhibit 10.2 of the Companys Current Report on Form 10-Q dated August 12, 2009)
10.14*
Settlement and Release Agreement between the Company and Thomas K. Barry dated December 30, 2011 (incorporated by reference to Exhibit 10.30 of the Companys Registration Statement on Form S-1 (No.
10.16
Operating Agreement of the Leatherstocking Gas Company, LLC (incorporated by reference to Exhibit 10.32 of the Companys Registration Statement on Form S-1 (No.
10.21*
Form of Restricted Stock Agreement Officers under the Corning Natural Gas Corporations Amended and Restated 2007 Stock Plan (incorporated by reference to Exhibit 10.1 of the Companys Current Report on Form 8-K dated December 11, 2012)
10.22*
Form of Restricted Stock Agreement - Non-employee Directors under the Corning Natural Gas Corporations Amended and Restated 2007 Stock Plan (incorporated by reference to Exhibit 10.2 of the Companys Current Report on Form 8-K dated December 11, 2012)
10.32
Stock Purchase Agreement between the Holding Company and Article 6 Marital Trust under the First Amended and Restated Jerry Zucker Revocable Trust Dated April 2, 2007, dated April 7, 2014
10.33
Stock Purchase Agreement between the Holding Company and the Retirement Plan for the L.S. Starret Company with QCI Management, Inc., as Registered Investment Advisor dated April 14, 2014
10.34
Stock Purchase Agreement between the Holding Company and DBH, LLC with QCI Asset Management, Inc., as Registered Investment Advisor dated April 14, 2014
10.35
Stock Purchase Agreement between the Holding Company and Cold Spring Construction Profit Sharing Plan with QCI Asset Management, Inc., as Registered Investment Advisor dated April 14, 2014
10.37
Stock Purchase Agreement between the Holding Company and Timothy E. Delaney with QCI Asset Management, Inc., as Registered Investment Advisor dated April 14, 2014
10.38
Stock Purchase Agreement between the Holding Company and Robert B. Johnston dated April 16, 2014
10.48
Pledge and Security Agreement between Corning Natural Gas Holding Corporation and Mirabito Regulated Industries, LLC with Wayne Bank dated January 31, 2019 (incorporated by reference to Exhibit 10.6 on Form 8-K dated September 4, 2014)
10.49
Pledge and Security Agreement between Corning Natural Gas Holding Corporation and Mirabito Regulated Industries, LLC with Wayne dated January 31, 2019 (incorporated by reference to Exhibit 10.7 on Form 8-K dated September 4, 2014)
10.72
Loan Agreement between Leatherstocking Gas (Borrower) and Leatherstocking Pipeline (Guarantor) and Five Star Bank, dated July 11, 2016 (incorporated by reference to Exhibit 10.2 of the June 2016 10-Q)
10.73
General Security Agreement between Leatherstocking Gas and Five Star Bank dated July 11, 2016 (incorporated by reference to Exhibit 10.3 of the June 2016 10-Q)
10.74
General Security Agreement between Leatherstocking Pipeline and Five Star Bank dated July 11, 2016 (incorporated by reference to Exhibit 10.4 of the June 2016 10-Q)
10.79
Continuing Guaranty, dated August 31, 2016, from Corning Natural Gas Holding Corporation to M&T Bank with respect to the obligations of Pike County Light & Power Company to M&T Bank (incorporated by reference to Exhibit 10.5 on the September 2016 8-K)
10.87
Credit Agreement, dated August 31, 2020, between Corning Natural Gas Company and M&T Bank (incorporated by reference to Exhibit 10.1 of the Companys Current Report on Form 8-K dated August 31, 2020)
10.88
Multiple Disbursement Term Note, dated August 15, 2018, from Corning Natural Gas Corporation to M&T Bank in the maximum principal amount of $3,600,000 (incorporated by reference to Exhibit 10.2 of the Companys Current Report on Form 8-K dated August 31, 2020)
10.89
General Security Agreement, dated August 31, 2020, from Corning Natural Gas Corporation to M&T Bank (incorporated by reference to Exhibit 10.3 of the Companys Current Report on Form 8-K dated August 31, 2020)
10.90
Replacement Credit Agreement, dated June 27, 2019, between Pike Light & Power Company and M&T Bank (incorporated by reference to Exhibit 10.1 of the Companys Current Report on Form 8-K dated May 23, 2018)
10.91
Replacement Term Note, dated May 23, 2018, from Pike Light & Power Company to M&T Bank in the initial principal amount of $11,200,000 (incorporated by reference to Exhibit 10.2 of the Companys Current Report on Form 8-K dated May 23, 2018)
10.92
Continuing Guaranty, dated June 27, 2019, between Pike Light & Power Company and M&T Bank (incorporated by reference to Exhibit 10.3 of the Companys Current Report on Form 8-K dated May 23, 2018)
10.93
General Security Agreement, dated June 27, 2019, between Pike Light & Power Company and M&T Bank (incorporated by reference to Exhibit 10.4 of the Companys Current Report on Form 8-K dated May 23, 2018)
10.94
Multiple Disbursement Term Note, dated June 27, 2019, from Corning Natural Gas Corporation to M&T Bank in the maximum principal amount of $3,127,000, with Prepayment Premium Rider. (incorporated by reference to Exhibit 10.1 on the December, 31 2019 10-Q)
10.95
Multiple Disbursement Term Note, dated June 27, 2019 from Pike Light & Power Company to M&T Bank in the maximum principal amount of $2,072,000, with Prepayment Premium Rider. (incorporated by reference to Exhibit 10.2 on the December, 31 2019 10-Q)
10.96
Form of Series C Preferred Stock Purchase Agreement dated March 27, 2020 between Corning Natural Gas Holding Corporation and the Series C Preferred Stock Purchasers (incorporated by reference to Exhibit 10.1 on the March, 31 2020 10-Q)
10.97
Term Note under the U.S. Small Business Administration Paycheck Protection Program issued by Corning Natural Gas Holding Corporation on April 17, 2020 to M&T Bank in the principal amount of $970,900 (incorporated by reference to Exhibit 10.2 on the March, 31 2020 10-Q)
10.98
Term Note under the U.S. Small Business Administration Paycheck Protection Program issued by Pike County Light & Power Company on April 22, 2020 to M&T Bank in the principal amount of $137,200 (incorporated by reference to Exhibit 10.3 on the March, 31 2020 10-Q)
Power of Attorney
31.1**
Certification Pursuant to Section 302 of the Sarbanes-Oxley Act - Michael I. German
31.2**
Certification Pursuant to Section 302 of the Sarbanes-Oxley Act - Charles A. Lenns
32.1***
Certification Pursuant to Section 906 of the Sarbanes-Oxley Act
*
Indicates management contract or compensatory plan or arrangement
**
Filed herewith
***
Furnished herewith<|endoftext|>Receive remuneration for serving as a director of the Company. Accordingly, Mr. Nagakura received no compensation as a Director during 2020.
(9)
Mr. Beatson received $7,500 in additional compensation for the value of certain options that expired.
For 2020, each non-employee Director received a quarterly retainer (Retainer) equal to $30,000. Each quarterly Retainer is effected through the issuance of Deferred Stock Units (each, a DSU) under the Plan. Each DSU represents the right to receive a number of shares of Common Stock equal to the Retainer divided by the closing price of the Common Stock immediately preceding the DSU grant date. Shares are not issuable under the DSU until the Director no longer serves on the Board. In addition, the Chairman of the Board and the chairpersons of the Audit, Compensation and Technology and Cybersecurity committees are entitled to receive an annual cash payment of $7,500.
Directors who are also employees of the Company or any of its subsidiaries receive no remuneration for serving as directors or Committee members.
The following table sets forth as of April27, 2021, certain information regarding the beneficial ownership of the Companys Common Stock by (i)each person who is known to the Company to beneficially own more than 5% of the Common Stock, (ii)each of the Directors and Named Executive Officers of the Company individually and (iii)the Directors and executive officers of the Company as a group. The information contained in this table reflects beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the Exchange Act) and, as such, also includes shares acquirable within 60 days. Unless otherwise indicated, the stockholders identified in this table have sole voting and investment power with respect to the shares owned of record by them
*Represents less than 1%
(1)
This table is based on 21,100,119 shares of Common Stock outstanding on April27, 2021. To calculate a stockholder's percentage of beneficial ownership, we include in the numerator and denominator those shares underlying options, stock awards and deferred stock units beneficially owned by that stockholder that are vested or that will vest within 60 days. Options, stock awards and deferred stock units held by other stockholders, however, are disregarded in the calculation of beneficial ownership.
(2)
Based on a March25, 2014 Form SC 13 D/A filing by transcosmos, inc.
(3)
Based on a December 31, 2020 Form SC 13 G/A filing by AWM Investment Company, Inc.
(4)
Based on a December 31, 2020 Form SC 13 G/A filing by Wellington Management Group, LLP.
(5)
Based on a December 31, 2020 Form SC 13 G/A filing by Portolan Capital Management, LLC.
(6)
Includes the following shares issuable under outstanding vested options, vested stock awards, and deferred stock units: David I. Beatson - 181,582; Benjamin Rosenzweig - 161,582; Monica Luechtefeld - 148,807; James Butler - 100,000; R. Zach Thomann - 2,500; Robert Frankfurt - 81,044, and G. Mercedes De Luca - 75,285.
(7)
Includes 780,800 shares of Common Stock issuable under outstanding vested options, vested stock awards, and deferred stock units.
The following table summarizes information with respect to equity compensation plans under which equity securities of the registrant are authorized for issuance as of December31, 2020. For additional information about our equity compensation plans, see Note 8 to and Item12 in the Companys consolidated financial statements included in its Annual Report on Form 10-K for the year ended December31, 2020:
(1)
Excludes 639,688 service-based restricted stock units, 1,297,510 performance-based and market-based restricted stock units, and 433,785 deferred stock units.
### Item13.
Director Independence
The Board of Directors evaluate the independence of each director in accordance with applicable laws and regulations and the Nasdaq Listing Rules. The Board of Directors consider all relevant facts and circumstances in making an independence determination, including among other things, making an affirmative determination that the director has no material relationship with the Company directly or as an officer, stockholder, or partner of an entity that has a material relationship with the Company. The Board of Directors has determined that, other than Mr.Willoughby, each director, and each member of each committee of the Board of Directors, is independent within the meaning of applicable SEC rules and Nasdaq Listing Rules. The independent directors are able to and generally meet in executive session without the Companys management at each regularly scheduled Board meeting.
### Relationships with Related Persons
We have entered into, and intend to enter into, separate indemnification agreements with our directors and certain qualifying officers, in addition to the indemnification provided for in our Amended and Restated Bylaws. These agreements, among other things, require us to indemnify our directors and officers for certain expenses, including attorneys fees, judgments, fines and settlement amounts incurred by a director or officer or any other company to which the director or officer provides services at our request. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers.
Purchase Agreement with transcosmos, inc.
In 2013 we entered into a Securities Purchase Agreement (the Purchase Agreement) with transcosmos inc., a Japanese business processing outsourcing company (TCI), pursuant to which the Company sold shares of the Companys common stock to TCI in a private placement transaction. TCI is currently the Companys largest shareholder. Pursuant to the Purchase Agreement, the Company agreed to nominate a representative of TCI to the Companys board of directors, or a replacement designated by TCI, so long as TCI owns 10% of the Companys issued and outstanding shares of common stock. Mr. Nagakura currently serves as the director designated by TCI. The Purchase Agreement also provides TCI with certain preemptive rights and subjects TCI to certain share transfer restrictions and standstill provisions.
### Other Transactions
We entered into various employment related agreements and compensatory arrangements with our executive officers and directors that provide for compensatory and certain severance and change of control benefits. For a description of these see sections above in Item 11 Executive Compensation tilted Employment, Change of Control and Termination Arrangements for Executives and Director Compensation.
Item14.
Fees billed to the Company by BDO USA, LLP for the years 2020 and 2019
The following table sets forth (i)the aggregate fees billed by BDO USA, LLP relating to the audit of the 2020 and 2019 consolidated financial statements and (ii)the fees for other professional services billed by BDO USA, LLP in connection with services rendered during 2020 and 2019.
(a)
Includes fees for professional services rendered in connection with the audits of the annual financial statements and the effectiveness of internal control over financial reporting, reviews of the quarterly financial statements, and services provided in connection with other regulatory filings.
(b)
Consists of aggregate fees billed for assurance services provided in connection with reports on certain internal controls under Statement on Standards for Attestation Engagements (SSAE) No.18.
(c)
Consists of fees billed related to tax compliance related services.
All of the fees listed in the chart above were pre-approved by the Audit Committee, which concluded that the provisions of such services by BDO USA, LLP was compatible with the maintenance of that firms independence in the conduct of its audit.
Policy on Audit Committee Pre-Approval of Audit and Permissible Non Audit Services of Independent Registered Public Accountants
The Audit Committee pre-approves all audit and permissible non-audit services provided by the Companys independent auditors. These services may include audit services, audit related services, tax and other services. Pre-approval is generally provided for up to one year, and any pre-approval is detailed as to the particular service or category of services and is generally subject to a specific budget. The independent auditors and management are required to periodically report to the Audit Committee regarding the extent of services provided by the independent auditors in accordance with this pre-approval and the fees for the services performed to date. The Audit Committee may also pre-approve particular services on a case by case basis. During 2020 all audit, non-audit and tax services provided by BDO USA, LLP were pre-approved by the Audit Committee in accordance with this policy.
### PART IV
Item15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Fees received by the Advisor and offset against base management fees. As of December31, 2020, $10,156 in base management fees were payable to the Advisor. See above for a discussion of the Advisors previous election to defer payment of a portion of the base management fee to which it was entitled.
(2)
During the year ended December31, 2020, $3,821 of the accrued administrative services expenses related to the allocation of costs of administrative personnel for services rendered to the Company by the Advisor and the remainder related to other reimbursable expenses. The Company paid $5,316 in administrative services expenses to the Advisor, or its affiliates, during the year ended December31, 2020.
### Exemptive Relief
As a BDC, the Company is subject to certain regulatory restrictions in making its investments. For example, BDCs generally are not permitted to co-invest with certain affiliated entities in transactions originated by the BDC or its affiliates in the absence of an exemptive order from the SEC. However, BDCs are permitted to, and may, simultaneously co-invest in transactions where price is the only negotiated term. In an order dated June4, 2013 (the Order), the SEC granted exemptive relief permitting the Company, subject to the satisfaction of certain conditions, to co-invest in certain privately negotiated investment transactions with certain affiliates of the Companys former investment adviser, FSK, FSKR and any future BDCs that are advised by the Companys former investment adviser or its affiliated investment advisers. Effective April9, 2018 (the JV Effective Date), and in connection with the transition of advisory services to a joint advisory relationship with EIG, the Companys board of trustees has authorized and directed that the Company (i)withdraw from the Order, except with respect to any transaction in which the Company participated in reliance on the Order prior to the JV Effective Date, and (ii)rely on an exemptive relief order dated April10, 2018, granted to EIG and its affiliates which permits the Company to participate in co-investment transactions with certain other EIG advised funds (the EIG Order).
The members of the senior management and investment teams of the Advisor serve or may serve as officers, directors or principals of entities that operate in the same or a related line of business as the Company does, or of investment vehicles managed by the same personnel, including in similar or other capacities for the investment advisers to future investment vehicles affiliated with FS Investments or EIG. In serving in these multiple and other capacities, they may have obligations to other clients or investors in those entities, the fulfillment of which may not be in the Companys best interests or in the best interest of the Companys shareholders. The Companys investment objectives may overlap with the investment objectives of such investment funds, accounts or other investment vehicles. For example, the Company relies on the Advisor to manage its day-to-day activities and to implement its investment strategy. The Advisor, FS Investments, EIG and certain of their respective affiliates are presently, and plan in the future to continue to be, involved with activities which are unrelated to the Company. As a result of these activities, the Advisor, FS Investments, EIG, their employees and certain of their affiliates will have conflicts of interest in allocating their time between the Company and other activities in which they are or may become involved, including the management of other entities affiliated with FS Investments or EIG. The Advisor and its employees will devote only as much of its or their time to the Companys business as the Advisor and its employees, in their judgment, determine is reasonably required, which may be substantially less than their full time.
The Advisors affiliates and its personnel are simultaneously providing investment advisory services to other affiliated entities. The Advisor may determine that it is appropriate for the Company and one or more other investment accounts managed by the Advisors affiliates to participate in an investment opportunity. To the extent the Company is able to make co-investments with investment accounts managed by the Advisor or its affiliates, these co-investment opportunities may give rise to conflicts of interest or perceived conflicts of interest among the Company and the other participating accounts. In addition, conflicts of interest or perceived conflicts of interest may also arise in determining which investment opportunities should be presented to the Company and other participating accounts. To mitigate these conflicts, the Advisor will seek to execute such transactions on a fair and equitable basis and in accordance with its allocation policies, taking into account various factors, which may include: the source of origination of the investment opportunity; investment objectives and strategies; tax considerations; risk, diversification or investment concentration parameters; characteristics of the security; size of available investment; available liquidity and liquidity requirements; regulatory restrictions; and/or such other factors as may be relevant to a particular transaction. As affiliates of FS Investments and EIG currently serve as the investment adviser to other entities and accounts, it is possible that some investment opportunities will be provided to such other entities and accounts rather than to the Company.
### Trustee Independence
A majority of the members of the Board are not interested persons, as defined in Section2(a)(19) of the 1940 Act, of the Company or the Advisor, and are independent as defined in Rule5605(a)(2) of The NASDAQ Stock Market LLC.
The Board is currently comprised of eight trustees, six of whom are Independent Trustees. The Board has determined that the following trustees are Independent Trustees: Ms.McGinty and Messrs. Based upon information requested from each trustee concerning his or her background, employment and affiliations, the Board has affirmatively determined that none of the Independent Trustees has, or within the last twoyears had, a material business or professional relationship with the Company, other than in his or her capacity as a member of the Board or any Board committee or as a shareholder.
Item14.Principal Accountant Fees and Services.
### Fees to Auditors
Set forth in the table below are audit fees, audit related fees, tax fees and all other fees billed to the Company by RSM, LLP for professional services performed for the fiscalyears ended December31, 2020 and 2019:
(1)
Audit-Related Fees are those fees billed to the Company by RSM, LLP for services provided by RSM, LLP or fees billed for expenses relating to the review by RSM, LLP of the Companys registration statements filed with the SEC pursuant to the Securities Act.
(2)
All Other Fees are those fees, if any, billed to the Company by RSM, LLP in connection with permitted non-audit services.
The Companys Audit Committee reviews, negotiates and approves in advance the scope of work, any related engagement letter and the fees to be charged by the Companys independent registered public accounting firm for audit services and permitted non-audit services for the Company and for permitted non-audit services for the Advisor and any affiliates thereof that provide services to the Company if such non-audit services have a direct impact on the operations or financial reporting of the Company. Any requests for audit, audit-related, tax and other services that have not received general pre-approval must be submitted to the Audit Committee for specific pre-approval in accordance with its pre-approval policy, irrespective of the amount, and cannot commence until such approval has been granted. Normally, pre-approval is considered at regularly scheduled meetings of the Audit Committee. However, the Audit Committee may delegate pre-approval authority to one or more of its members. The member or members to whom such authority is delegated must report any pre-approval decisions to the Audit Committee at its next scheduled meeting. The Audit Committee does not delegate its responsibilities to pre-approve services performed by RSM US LLP to management. All of the audit and non-audit services described above for which RSM US LLP invoiced the Company for the fiscalyears ended December31, 2020 and 2019 were pre-approved by the Audit Committee.
### PART IV
Item15.Exhibits and Financial Statement Schedules.
Exhibits
The following exhibits are filed as part of this Amendment:
31.1*
Certification of Chief Executive Officer pursuant to Rule13a-14 under the Securities Exchange Act of 1934, as amended.
31.2*
Certification of Chief Financial Officer pursuant to Rule13a-14 under the Securities Exchange Act of 1934, as amended.
*
Filed herewith.
Item16.Form 10-K Summary.
None.<|endoftext|>And responsibilities governing ethical conduct for all Company directors, officers, employees and principal stockholders.
A copy of the Code of Ethics will be provided free of charge, upon written request made to the Companys secretary at 1 West Mellen Street, Hampton, Virginia 23663 or by calling (757) 728-1200. The Code of Ethics is also posted on the Companys website at www.oldpoint.com in the Community section, under Investor Relations and then Governance Documents. The Company intends to satisfy the disclosure requirements of Form 8-K with respect to waivers of or amendments to the Code of Ethics with respect to certain officers of the Company by posting such disclosures on its website under Waivers of or amendments to the Code of Ethics. The Company may, however, elect to disclose any such amendment or waiver in a report on Form 8-K filed with the SEC either in addition to or in lieu of the website disclosure.
Item 11.
### Executive Compensation
The information set forth under the captions Executive Compensation in the 2021 Proxy Statement is incorporated herein by reference.
Item 12.
The information set forth under the caption Securities Authorized for Issuance Under Equity Compensation Plans in the 2021 Proxy Statement is incorporated herein by reference.
The information set forth under the caption Security Ownership of Certain Beneficial Owners and Management in the 2021 Proxy Statement is incorporated herein by reference.
### Item 13.
The information set forth under the caption Interest of Management in Certain Transactions in the 2021 Proxy Statement is incorporated herein by reference.
The information regarding director independence set forth under the caption Board Committees and Attendance in the 2021 Proxy Statement is incorporated herein by reference.
Item 14.
The information set forth under the captions Principal Accountant Fees and Audit Committee Pre-Approval Policy in the 2021 Proxy Statement is incorporated herein by reference.
Part IV
Item 15.
(a)(1)
The following and reports are included in Part II, Item 8, of this report on Form 10-K.
Report of Independent Registered Public Accounting Firm (Yount, Hyde & Barbour, P.C.)
(a)(2)
Consolidated Financial Statement Schedules
All schedules are omitted since they are not required, are not applicable, or the required information is shown in the or notes thereto.
### Index
(a)(3)
Exhibits
Exhibit No.
Description
2.1
Agreement and Plan of Reorganization, dated as of October 27, 2017, by and among Old Point Financial Corporation, The Old Point National Bank of Phoebus, and Citizens National Bank (incorporated by reference to Exhibit 2.1 to Form 8-K filed November 2, 2017)
3.1
Articles of Incorporation of Old Point Financial Corporation, as amended June 22, 2000 (incorporated by reference to Exhibit 3.1 to Form 10-K filed on March 12, 2009)
3.1.1
Articles of Amendment to Articles of Incorporation of Old Point Financial Corporation, effective May 26, 2016 (incorporated by reference to Exhibit 3.1.1 to Form 8-K filed May 31, 2016)
3.2
Bylaws of Old Point Financial Corporation, as amended and restated August 9, 2016 (incorporated by reference to Exhibit 3.2 to Form 10-Q filed August 10, 2016)
4.0
Description of the Companys Common Stock (incorporated by reference to Exhibit 4.0 to Form 10-K filed March 16, 2020)
10.4*
Form of Life Insurance Endorsement Method Split Dollar Plan Agreement with The Northwestern Mutual Life Insurance Company entered into with each of Robert F. Shuford, Sr. and Eugene M. Jordan, II (incorporated by reference to Exhibit 10.4 to Form 10-K filed March 30, 2005)
10.5*
Directors Compensation (incorporated by reference to Exhibit 10.5 to Form 10-K filed March 16, 2020)
10.7*
Summary of Incentive Plan (incorporated by reference to Exhibit 10.7 to Form 10-K filed March 30, 2015)
10.8*
Form of Life Insurance Endorsement Method Split Dollar Plan Agreement with Ohio National Life Assurance Corporation entered into with Eugene M. Jordan, II (incorporated by reference to Exhibit 10.8 to Form 10-K filed March 14, 2008)
10.9
Memorandum of Understanding between The Old Point National Bank of Phoebus and Tidewater Mortgage Services, Inc., dated September 10, 2007 (incorporated by reference to Exhibit 10.8 to Form 10-Q filed November 9, 2007)
10.10*
Form of 162 Insurance Plan (incorporated by reference to Exhibit 10.10 to Form 10-K filed March 12, 2009)
10.11*
Form of Life Insurance Endorsement Method Split Dollar Plan Agreement with Ohio National Life Assurance Corporation entered into with Joseph R. Witt (incorporated by reference to Exhibit 10.11 to Form 10-K filed March 12, 2010)
10.12*
Form of Life Insurance Endorsement Method Split Dollar Plan Agreement with New York Life Insurance and Annuity Corporation entered into with Eugene M. Jordan, II, Robert F. Shuford, Jr., and Joseph R. Witt (incorporated by reference to Exhibit 10.12 to Form 10-K filed March 30, 2012)
10.14
Settlement Agreement dated March 16, 2016 among Old Point Financial Corporation, Financial Edge Fund, L.P., Financial Edge-Strategic Fund, L.P., PL Capital/Focused Fund, L.P., PL Capital, LLC, PL Capital Advisors, LLC, Goodbody/PL Capital, L.P., Goodbody/PL Capital, LLC, Mr. John W. Palmer and Mr. Richard J. Lashley, as Managing Members of PL Capital, LLC, PL Capital Advisors, LLC and Goodbody/PL Capital, LLC and Mr. William F. Keefe (incorporated by reference to Exhibit 10.1 to Form 8-K filed March 17, 2016)
10.15*
2016 Incentive Stock Plan (incorporated by reference to Exhibit 10.15 to Form 8-K filed May 31, 2016)
10.16
Membership Interest Purchase Agreement dated January 13, 2017 between Tidewater Mortgage Services, Inc. and The Old Point National Bank of Phoebus (incorporated by reference to Exhibit 10.1 to Form 8-K filed January 20, 2017)
Index
10.22*
Employment Agreement, dated as of February 22, 2018, by and between and The Old Point National Bank of Phoebus and Robert F. Shuford, Jr. (incorporated by reference to Exhibit 10.22 to Form 8-K filed February 28, 2018)
10.24*
Employment Agreement, dated as of February 22, 2018, by and between and The Old Point National Bank of Phoebus and Joseph R. Witt (incorporated by reference to Exhibit 10.24 to Form 8-K filed February 28, 2018)
10.25*
Employment Agreement, dated as of February 22, 2018, by and between and Old Point Trust & Financial Services, N.A. and Eugene M. Jordan, II (incorporated by reference to Exhibit 10.25 to Form 8-K filed February 28, 2018)
10.26*
Change of Control Severance Agreement, dated as of February 22, 2018, by and between The Old Point National Bank of Phoebus and Donald S. Buckless (incorporated by reference to Exhibit 10.26 to Form 10-K filed March 16, 2018)
10.27*
Form of Time-Based Restricted Stock Agreement (installment vesting) (approved March 29, 2018) for awards to certain employees under the 2016 Incentive Stock Plan (incorporated by reference to Exhibit 10.27 to Form 8-K filed April 3, 2018)
10.28*
Form of Time-Based Restricted Stock Agreement (cliff vesting) (approved March 29, 2018) for awards to certain employees under the 2016 Incentive Stock Plan (incorporated by reference to Exhibit 10.28 to Form 8-K filed April 3, 2018)
10.29*
Form of Time-Based Restricted Stock Agreement (cliff vesting) (approved March 29, 2018) for awards to certain non-employee directors under the 2016 Incentive Stock Plan (incorporated by reference to Exhibit 10.29 to Form 8-K filed April 3, 2018)
10.30*
Change of Control Severance Agreement, dated as of October 30, 2019, by and between The Old Point National Bank of Phoebus and Elizabeth T. Beale (incorporated by reference to Exhibit 10.30 to Form 10-K filed on March 16, 2020)
10.31*
Change of Control Severance Agreement, dated as of October 30, 2019, by and between The Old Point National Bank of Phoebus and Thomas Hotchkiss (incorporated by reference to Exhibit 10.31 to Form 10-K filed on March 16, 2020)
10.32*
Change of Control Severance Agreement, dated as of December 31, 2019, by and between The Old Point National Bank of Phoebus and Susan R. Ralston (incorporated by reference to Exhibit 10.32 to Form 10-K filed on March 16, 2020)
Subsidiaries of the Registrant (incorporated by reference to Exhibit 21 to Form 10-K filed March 30, 2005)
Consent of Yount, Hyde & Barbour, P.C.
31.1
31.2
32.1
The following materials from Old Point Financial Corporations annual report on Form 10-K for the year ended December 31, 2020, formatted in iXBRL (Inline Extensible Business Reporting Language), filed herewith: (i) Consolidated Balance Sheets, (ii) Consolidated Statements of Income, (iii) Consolidated Statements of Comprehensive Income, (iv) Consolidated Statements of Changes in Stockholders Equity, (v) Consolidated Statements of Cash Flows, and (vi) Notes to
* Denotes management contract
Item 16.
### Form 10-K Summary
Not applicable.
Index
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Or past executive officers of the Company serve on the Compensation Committee.
Risk Analysis of Compensation Policies and Practices
The Compensation Committee assessed, with the assistance of management, the Companys compensation policies and practices to determine whether these policies and practices create risks that are reasonably likely to have a material adverse effect on the Company.
This assessment included a review of the Companys executive and broad-based employee compensation programs, the identification of potential risks that could result from such policies and practices, the identification of factors and controls that mitigate those risks, and an analysis of the potential risks against mitigating factors and controls and the Companys business strategies and objectives. Based on this assessment, the Compensation Committee concluded that our compensation policies and practices do not create risks that are reasonably likely to have a material adverse effect on the Company. In its assessment and conclusion, the Compensation Committee considered the following design features, among others:
Overall compensation levels competitive with the market.
The use of financial performance measures that are quantifiable and measurable.
The use of performance goals that are appropriate in light of past performance and market conditions.
Oversight by a Compensation Committee comprised of independent, non-employee directors with the ability to use discretion in determining compensation levels, supported by guidance from the Compensation Committees independent compensation consultant, FW Cook.
The use of long-term equity-based incentive awards, which comprise a significant portion of total annual incentive compensation and typically vest over a four-year period, and stock ownership requirements that align the long-term interests of our executive officers with those of our stockholders.
The ability of management to exercise discretion to reduce payouts, including in connection with extraordinary or unanticipated events.
Multiple internal controls and approval processes intended to prevent manipulation of performance.
Item 12.
The following table provides information as of December31, 2020 with respect to Shares that may be issued under our existing equity compensation plans.
(1)
Represents Shares available for future issuance from the Stock Incentive Plan.
The following table reflects information regarding beneficial ownership of Shares by each director and named executive officer set forth in the Summary Compensation Table, as well as by all directors and executive officers as a group, as of April 15, 2021.
*
Denotes less than 1%.
(1)
Includes unvested shares of restricted Class A common stock granted under the Companys Stock Incentive Plan, as amended and restated (the Stock Incentive Plan), for Messrs. Bloss (144,642), Clouse (57,079), Hanson (204,005), Mihal (51,461), and Sanders (272,034).
(2)
For Messrs. Clouse and Hanson, indirect beneficial ownership reflects shares of Class A common stock owned by their spouse.
The following table reflects all persons known to be the beneficial owner of more than 5% of the Companys Shares as of April 15, 2021.
(1)
Burgundy Asset Management Ltd. on behalf of clients for whom it acts as investment adviser.
The reporting stockholder reports sole voting power with respect to 2,362,531 shares and sole investment power with respect to 3,344,677 shares
Information relating to these stockholders is based on the stockholder's Schedule13G filed with the SEC on February 12, 2021.
(2)
### The Vanguard Group
The reporting stockholder reports shared voting power with respect to 62,095 shares, sole investment power with respect to 6,587,480 shares and shared investment power with respect to 115,481 shares. Information relating to this stockholder is based on the stockholders Schedule13G/A filed with the SEC on February 10, 2021.
(3)
### Blackrock,Inc.
The reporting stockholder reports sole voting power with respect to 9,457,272 shares and sole investment power with respect to 9,564,315 shares. Information relating to this stockholder is based on the stockholders Schedule13G/A filed with the SEC on January 26, 2021.
Item 13.
The Audit Committee is charged with the responsibility of reviewing and pre-approving all related-person transactions (as defined in SEC regulations), and periodically reassessing any related-person transaction entered into by the Company to ensure its continued appropriateness. This responsibility is set forth in the Companys Corporate Code of Business Conduct and Ethics. See footnote 16 to the Original Form 10-K for a description of the Companys investment management and services agreements with the Companys affiliated mutual funds that are approved or renewed on an annual basis by each funds board of trustees, including a majority of the disinterested members.
Director Independence
The Board is composed of a majority of directors who satisfy the criteria for independence under the NYSE corporate governance listing standards. In determining independence, each year the Board affirmatively determines, among other items, whether the directors have any direct or indirect material relationship with the Company or any of its subsidiaries pursuant to the NYSE corporate governance listing standards. When assessing the materiality of a directors relationship with the Company, if any, the Board considers all relevant facts and circumstances, not merely from the directors standpoint, but from that of the persons or organizations with which the director has an affiliation. The Board also considers any other relationship that could interfere with the exercise of independence or judgment in carrying out the duties of a director.
Applying these independence standards, the Board determined that Kathie J. Andrade, Sharilyn S. Gasaway, Thomas C. Godlasky, James A. Jessee, Katherine M.A. (Allie) Kline, Dennis E. Logue, Michael F. Morrissey, and Jerry W. Walton are all independent directors. Additionally, during their time on the Board, Constance K. Weaver and Alan W. Kosloff were also independent directors.
After due consideration, the Board has determined that no non-employee director has a material relationship with the Company or any of its subsidiaries (either directly or indirectly as a partner, stockholder or officer of an organization that has a relationship with the Company or any of its subsidiaries) and they all meet the criteria for independence under the NYSE corporate governance listing standards.
### Item 14.
The Audit Committee or its Chair pre-approves audit and non-audit services to be rendered to the Company and establishes a dollar limit on the amount of fees the Company will pay for each category of services. Generally, management will submit to the Audit Committee a detailed list of services that it recommends the Audit Committee engage the independent registered public accounting firm to provide for the fiscal year. During the year, the Audit Committee periodically reviews the types of services and dollar amounts approved and adjusts such amounts, as it deems appropriate. Unless a service to be provided by the independent registered public accounting firm has received general pre-approval, it will require specific pre-approval by the Audit Committee or its Chair. Any audit or non-audit services pre-approved by the Chair are presented to the full Audit Committee at its next scheduled meeting. The Audit Committee also periodically reviews all non-audit services to ensure such services do not impair the independence of the Company's independent registered public accounting firm. The Audit Committee approved all services provided by KPMG for the 2019 and 2020 fiscal years. These services included the audit of the Company's annual financial statements, audit of the Company's internal control over financial reporting, review of the Company's quarterly financial statements, tax consultation services, preparation of corporate tax returns, auditing of employee benefits plans and certain agreed upon procedures.
The following table shows the fees billed by KPMG for audit and other services provided to the Company for the 2020 and 2019 fiscal years, respectively:
(1)
Audit fees consist of fees for the audit of the Companys annual financial statements, the audit of its internal control over financial reporting, reviews of the financial statements included in quarterly reports on Form10-Q and professional services rendered in connection with the audit of the Companys annual financial statements.
(2)
Audit-related fees primarily relate to financial statement audits of employee benefit plans, certain agreed upon procedures and the issuance of SSAE 16 reports.
(3)
Tax fees consist of fees for income tax consultation, including tax compliance, preparation and review of corporate tax returns, and other general tax consultation.
PART IV
ITEM 15.<|endoftext|>Was a material weakness in its internal control over financial reporting. Specifically, through the investigation discussed above, management identified a lack of segregation of duties as well as errors in financial statement presentation and disclosure.
### Lack of Segregation of Duties
Management is aware that there is a lack of segregation of duties at the Company due to the lack of employees dealing with general administrative and financial matters. However, at this time management has decided that considering the abilities of the employees now involved and the control procedures in place, the risks associated with such lack of segregation are low and the potential benefits of hiring employees to clearly segregate duties do not justify the substantial expenses associated with such increases. Management will periodically reevaluate this situation.
In order to mitigate the foregoing material weakness, we have engaged an outside accounting consultant with significant experience in the preparation of financial statements in conformity with U.S. GAAP to assist us in the preparation of our financial statements to ensure that these financial statements are prepared in conformity to U.S. GAAP. Management believes that this will lessen the possibility that a material misstatement of our annual or interim financial statements will be prevented or detected on a timely basis, and we will continue to monitor the effectiveness of this action and make any changes that our management deems appropriate.
There have been no changes in our internal control over financial reporting that occurred during our last fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information.
None.
### PART III
Item 10.
All Directors of the Company hold office until the next annual meeting of the security holders or until their successors have been elected and qualified. The officers of the Company are appointed by the Board of Directors and hold office until their death, resignation or removal from office. The Directors and Executive Officers, their ages, positions held, and duration as such, are as follows:
### Business Experience
The following is a brief account of the education and business experience during at least the past five years of each current Director, Executive Officer and key employee of the Company, indicating the persons principal occupation during that period, and the name and principal business of the organization in which such occupation and employment were carried out.
Mr. David Lazar
, 29, is a private investor with business experience. Mr. Lazar has been a partner at Zenith Partners International since 2013, where he specializes in research and development, sales and marketing. Since February of 2018, Mr. David has a diverse knowledge of financial, legal and operations management, public company management, accounting, audit preparation, due diligence reviews and SEC regulations. David Lazar is also the sole officer and director of Melt, Inc. and Zhongchai Machinery, Inc., both of which are blank check companies. His expertise includes early-stage company capital restructuring, debt financing, capital introductions, and mergers and acquisitions. Mr. Lazar was selected to serve as a director due to his knowledge of the capital markets, his judgment in assessing business strategies and accompanying risks, and his expertise with smaller reporting companies. Mr. Lazar and his affiliates have not, within the past five years, filed any bankruptcy petition, been convicted in or been the subject of any pending criminal proceedings, or is any such person the subject or any order, judgment or decree involving the violation of any state or federal securities laws.
### Employment Agreements
We have no formal employment agreement with David Lazar who is our sole employee, Directors or officer.
Family Relationships
None.
None of our Directors, Executive Officers, promoters or control persons has been involved in any of the following events during the past 10 years:
1.
2. Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses;
3.
Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, Director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity ii.
or iii.
4.
5.
6.
7.
or ii.
or iii.
or
8.
### Code of Ethics
As of the date of filing, the Company has not adopted a corporate code of ethics. The Company has never adopted a corporate code of ethics, and the new management of the Company has not yet made plans to formulate such a code.
Board and Committee Meetings
Our Board of Directors currently consists of one member, Mr. David Lazar. The Board of Directors held no formal meetings during the year ended December 31, 2020. Until the Company develops a more comprehensive Board of Directors, all proceedings will be conducted by resolutions consented to in writing by all the Directors and filed with the minutes of the proceedings of the Directors.
### Nomination Process
During the year ended December 31, 2006, we did not effect any material changes to the procedures by which our shareholders may recommend nominees to our Board of Directors. Our Board of Directors has determined that it is in the best position to evaluate our companys requirements as well as the qualifications of each candidate when the Board of Directors considers a nominee for a position on our Board of Directors. If shareholders wish to recommend candidates directly to our Board of Directors, they may do so by sending communications to the President of our Company at the address on the cover of this Comprehensive Annual Report on Form 10-K.
Audit Committee
Currently the Company does not have an Audit Committee.
Our Board of Directors does not have a member that qualifies as an audit committee financial expert as defined in Item 407(d)(5)(ii) of Regulation S-K.
Item 11.
### Executive Compensation
No executive compensation was paid during the fiscal years ended December 31, 2006 and 2005. The Company has no employment agreement with any of its officers and directors.
None of our executive officers received any equity awards, including, options, restricted stock or other equity incentives during the fiscal year ended December 31, 2006 and 2005.
During the year ended December 31, 2006 and 2005, no officer received any compensation solely for service as a director.
During the fiscal years of 2006 and 2005, we did not have a standing compensation committee. The sole director conducted deliberations concerning executive officer compensation, including directors who were also executive officers. David Lazar, as our sole director, has authority and discretion to determine his own compensation for serving as the Companys President and Chief Executive Officer.
Item 12.
The following table sets forth, as of March, 2020 certain information with respect to the beneficial ownership of our common shares by each shareholder known by us to be the beneficial owner of more than 5% of our common shares, as well as by each of our current Directors and Executive Officers as a group.
As a result, the percentage of outstanding shares of any person as shown in this table does not necessarily reflect the persons actual ownership or voting power with respect to the number of shares of Common Stock actually outstanding on June 30, 2020. As of June 30, 2020, there were 492,404,893 shas of our companys Common Stock issued and outstanding.
(1)
Percentages are calculated based on 2,486,076,963 shares of the Companys Common Stock issued and outstanding on December 31, 2020.
(2)
### Address at 1185 Avenue of the Americas, 3 rd
Floor, New York, NY 10036. The shares are held by Custodian Ventures, LLC, which is controlled by David Lazar
(3)
### TMI Tower 22 nd
, F#A6, Chan Wan, Hong Kong
Item 13.
Mr. Lazar, the Companys Court-appointed custodian is considered a related party. As of July 1, 2020, he had extended $25,686 in interest free demand loans to the Company.
### Director Independence
The Company does not have a separately designated nominating committee of our Board of Directors. None of our directors is deemed to be independent, as such term is defined in the listing standards of The Nasdaq Stock Market, Inc. (Nasdaq).
Item 14.
### PART IV
Item 15. Exhibits. Financial Statement Schedules.
Exhibits
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Of 2020, we had drawn the full $700,000 under the LOC Agreement with DKBK. On October 6, 2020, in connection with the closing of our underwritten public offering, DKBK converted the $700,000 principal amount and related accrued interest into 199,537 shares of our common stock at a conversion price of $3.60 per share. In October 2020, we terminated the LOC Agreements with DKBK and CorLyst. As of December 31, 2020, DKBK directly held 215,703 shares of our common stock and CorLyst beneficially owns 1,129,331 shares of our common stock.
### License Agreement with Yuhan Corporation
Yuhan Corporation owns 7.9% of our common stock. On August 19, 2020, we entered into a License Agreement with Yuhan Corporation (Yuhan License Agreement), pursuant to which we acquired an exclusive license to develop, manufacture and commercialize PCS12852 (formerly known as YH12852) globally, excluding South Korea.
As consideration for the Yuhan License Agreement and related Share Issuance Agreement, we issued to Yuhan 500,000 shares of common stock. As additional consideration, we will pay Yuhan development and regulatory milestone payments (a portion of which are payable in shares of our common stock based on the volume weighted average trading price during the period prior to such achievement and a portion of which are payable in cash) upon the achievement of certain milestones, based on a Yuhan affiliate purchasing 750,000 shares of common stock for $3,000,000 in our October 2020 underwritten public offering. The milestones primarily consist of dosing a patient in pivotal trials or having a drug indication approved by a regulatory authority in the United States or another country. In addition, we must pay Yuhan one-time sales milestone payments based on the achievement during a calendar year of one or more thresholds for annual sales for products made and pay royalties based on annual licensing sales. We are also required to split any milestone payments received with Yuhan based on any sub-license agreement we may enter into.
In conjunction with a joint Processa-Yuhan Board to oversee such commercialization efforts, we are required to use commercially reasonable efforts, at our sole cost and expense, to research, develop and commercialize products in one or more countries, including meeting specific diligence milestones that consist of: (i) preparing a first draft of the product development plan within 90 days; (ii) requesting an FDA pre-IND meeting for a product within 6 months; (iii) dosing a first patient in a Phase 2A clinical trial with a product within 24 months; and (iv) dosing a first patient with a product in a Phase 2B clinical trial, Phase 3 clinical trial or other pivotal clinical trial with a product within 48 months. Either party may terminate the agreement in the event of a material breach of the agreement that has not been cured following written notice and a 60-day opportunity to cure such breach (which is shortened to 15 days for a payment breach).
### License Agreement with Elion Oncology, Inc
Mr. Floyd and Dr. Islam hold equity interests totaling 65.14% of Elion Oncology, Inc., which owns 2.7% of our common stock. On August 23, 2020, we entered into a condition precedent License Agreement with Elion Oncology (Elion License Agreement), pursuant to which we acquired an exclusive license to develop, manufacture and commercialize PCS6422 globally. The grant of license was conditioned on the following being satisfied by October 30, 2020: (i) our closing on an equity financing of at least $15 million in gross proceeds and (ii) successful up-listing to Nasdaq.
On October 6, 2020, all conditions were satisfied, resulting in the addition of PCS6422 to the Processa portfolio, and we paid $100,000 cash and issued 825,000 shares of our common stock to Elion. Such shares are subject to a lock-up, with 50% of such shares released from such lock up after six months and the remaining 25% tranches to be released following 9 months and 12 months, respectively.
As part of the Elion License Agreement, we have agreed to issue to Elion 100,000 shares of our common stock on each of the first and second anniversary dates of the Elion License Agreement. We believe the payment of these amounts is probable and represent seller financing since the only condition related to their payment is the passage of time, which management does not believe is substantive. We valued the shares at $4.00 per share based on the underwritten public offering price on October 6, 2020, which is the date the conditions precedent in the license agreement were met.
As additional consideration, we will pay Elion development and regulatory milestone payments (a portion of which are payable in shares of our common stock and a portion of which are payable in cash) upon the achievement of certain milestones, which include FDA or other regulatory approval and dosing a patient. In addition, we must pay Elion one-time sales milestone payments based on the achievement during a calendar year of one or more thresholds for annual sales for products made and pay royalties based on annual licensing sales. We are also required to split any milestone payments received with Elion based on any sub-license agreement we may enter into.
We are required to use commercially reasonable efforts, at our sole cost and expense, to research, develop and commercialize products in one or more countries, including meeting specific diligence milestones that consist of: (i) dosing a first patient in a Phase 1B clinical trial with a product within 12 months; and (ii) dosing a first patient with a product in a Phase 2 or 3 clinical trial within 48 months. Either party may terminate the agreement in the event of a material breach of the agreement that has not been cured following written notice and a 90-day opportunity to cure such breach (which is shortened to 15 days for a payment breach).
### Item 14.
The following table sets forth the aggregate fees billed to Processa for the years ended December 31, 2020 and 2019 by our independent auditor, BD & Company:
Audit Fees
These fees were for professional services rendered for 2020 and 2019 in connection with the audit of our annual financial statements on Form 10-K and review of the financial statements included in our Quarterly Reports on Form 10-Q. The amounts also include fees for services that are normally provided by BD & Company Inc. in connection with statutory and regulatory filings and engagements for the years identified.
### All Other Fees.
These fees were primarily for services related to our Registration Statements on Form S-1 in 2020 and 2019.
Audit Committee Policies and Procedures for Pre-Approval of Independent Auditor Services
The following describes the Audit Committees policies and procedures regarding pre-approval of the engagement of the Companys independent auditor to perform audit as well as permissible non-audit services for the Company.
For audit services and audit-related fees, the independent auditor will provide the Committee with an engagement letter during the March-May quarter of each year outlining the scope of the audit services proposed to be performed in connection with the audit of the current fiscal year. If agreed to by the Committee, the engagement letter will be formally accepted by the Committee at an Audit Committee meeting held as soon as practicable following receipt of the engagement letter. The independent auditor will submit to the Committee for approval an audit services fee proposal after acceptance of the engagement letter.
For non-audit services and other fees, Company management may submit to the Committee for approval (during May through September of each fiscal year) the list of non-audit services that it recommends the Committee engage the independent auditor to provide for the fiscal year. The list of services must be detailed as to the particular service and may not call for broad categorical approvals. Company management and the independent auditor will each confirm to the Audit Committee that each non-audit service on the list is permissible under all applicable legal requirements. In addition to the list of planned non-audit services, a budget estimating non-audit service spending for the fiscal year may be provided. The Committee will consider for approval both the list of permissible non-audit services and the budget for such services. The Committee will be informed routinely as to the non-audit services actually provided by the independent auditor pursuant to this pre-approval process.
To ensure prompt handling of unexpected matters, the Audit Committee delegates to its Chairman the authority to amend or modify the list of approved permissible non-audit services and fees. The Chairman will report any action taken pursuant to this delegation to the Committee at its next meeting.
All audit and non-audit services provided to the Company are required to be pre-approved by the Committee.
### Part IV
Item 15.<|endoftext|>It with services in her discretion to promote the Company and its programs, products and services for an initial term of five years (the Initial Term).
As previously disclosed, on December 15, 2019, the Company entered into an amendment of the Strategic Collaboration Agreement with Ms. Winfrey, pursuant to which, among other things, the Initial Term of the Strategic Collaboration Agreement was extended until April 17, 2023 (with no additional successive renewal terms) after which a second term will commence and continue through the earlier of the date of the Companys 2025 annual meeting of shareholders or May 31, 2025.Ms. Winfrey will continue to provide the above-described services during the remainder of the Initial Term and, during the second term, will provide certain consulting and other services to the Company.In consideration of Ms. Winfrey entering into the amendment to the Strategic Collaboration Agreement and the performance of her obligations thereunder, on December 15, 2019 the Company granted Ms. Winfrey a fully vested option to purchase
3,276 shares of the Companys common stock (the "Winfrey Amendment Option") which became exercisable on May 6, 2020, the date on which shareholder approval of such option was obtained.The amendment to the Strategic Collaboration Agreement became operative on May 6, 2020 when the Company's shareholders approved the Winfrey Amendment Option.
Based on the Black Scholes option pricing method as of May 6, 2020, the Company recorded $32,686of compensation expense in the second quarter of fiscal 2020 for the Winfrey Amendment Option. The Company used a dividend yield of0.0%,63.68% volatility and a risk-free interest rate of0.41%. Compensation expense is included as a component of selling, general and administrative expenses.
In addition to the Strategic Collaboration Agreement, Ms.Winfrey and her related entities provided services to the Company totaling $2,228, $2,791 and $2,208 for the fiscal years ended January2, 2021, December 28, 2019 and December29, 2018, respectively, which services included advertising, production and related fees. Also, during the fiscal year ended December 28, 2019, the Company received advertising services from entities related to Ms. Winfrey at no chargewith an estimated value of $330.
Entities related to Ms. Winfrey were reimbursed for actual costs incurred in connection with the
WW Presents: Oprahs 2020 Vision tour totaling $1,653for the fiscal year ended
### January2, 2021
The Companys accounts payable to parties related to Ms.Winfrey at January2, 2021 and December28, 2019 was $76 and $72, respectively.
In fiscal
, as permitted by the transfer provisions set forth in the previously disclosed Share Purchase Agreement, dated October 18, 2015, between the Company and Ms. Winfrey, as amended, and the previously disclosed Winfrey
Option Agreement, dated October 18, 2015, between the Company and Ms. Winfrey, Ms. Winfrey sold 2,782 of the shares she purchased under such purchase agreement and exercised a portion of her stock options granted in 2015 resulting in the sale of 1,118 shares issuable under such options, respectively.
WW INTERNATIONAL,INC. AND SUBSIDIARIES
### Restructuring
As previously disclosed, in the second quarter of fiscal 2020, in connection with its cost-savings initiative, and its continued response to the COVID-19 pandemic and the related shift in market conditions, the Company committed to a plan of reduction in force which has resulted and will result in the elimination of certain positions and termination of employment for certain employees worldwide. The Company had previously estimated this plan would cost $22,500.To adjust to anticipated consumer demand, the Company evolved its workshop strategy and expanded its restructuring plan to include lease termination and other related costs
During the second, third and fourth quarters of fiscal 2020, the Company continued to reduce its total headcount, which decreased approximately 43% from the end of fiscal 2019 to the end of fiscal 2020. As of
### January2, 2021
,the Company had approximately 10 employees, a majority of whom were part-time employees.The Company recorded expenses in connection with employee termination benefit costs of $25,103 and lease termination and other related costs of $7,989, totaling $33,092 ($24,756 after tax) for the fiscal year ended
January2, 2021
These expenses impacted cost of revenues by $23,300 and selling, general and administrative expenses by $9,792 for the fiscal yearended
### January2, 2021
All expenses were recorded to general corporate expenses and, therefore, there was no impact to the segments.For thefiscal year ended
January2, 2021
, the Company made payments of $15,434 towards the liability for these employee termination benefit costs and increased provision estimates by $180.For thefiscal year ended
### January2, 2021
, the Company made payments of $645 towards the liability for these lease termination and related costs.The Company expects the remaining employee termination benefit liability of $9,849 and the remaining lease termination liability of $5,320 to be paid in full no later than the end of fiscal 2023.
In the first quarter of fiscal 2021, as the Company continued to evaluate its cost structure, anticipate consumer demand and focus on costs, the Company committed to a plan which will result in the termination of operating leases and elimination of certain positions worldwide. The Company currently expects to record restructuring expenses of approximately $18,000 in fiscal 2021 related to this new plan.
As previously disclosed, in the first quarter of fiscal 2019, the Company undertook an organizational realignment which resulted in the elimination of certain positions and termination of employment for certain employees worldwide.
The Company recorded expenses in connection with employee termination benefit costs of $6,331 ($4,727 after tax) for the fiscal year ended December 28, 2019 (all expenses were recorded in the first quarter of fiscal 2019). These expenses impacted cost of revenues by $1,425 and selling, general and administrative expense by $4,906 for the fiscal year ended December 28, 2019. The Company did not record additional expenses in connection with this organizational realignment.
All expenses were recorded to general corporate expenses and, therefore, there was no impact to the segments.
For the fiscal year ended December 28, 2019, the Company made payments of $5,077 towards the liability for these expenses and lowered provision estimates by $83. For thefiscal year ended
### January2, 2021
, the Company made payments of $1,052 towards the liability for these expenses and lowered provision estimates by $119.As of
January2, 2021
, there wasnooutstanding liability related thereto.
The following is a summary of the unaudited quarterly consolidated results of operations for the fiscal years ended January2, 2021 and December 28, 2019.
WW INTERNATIONAL,INC. AND SUBSIDIARIES
Basic and diluted EPS are computed independently for each of the periods presented. Accordingly, the sum of the quarterly EPS amounts may not agree to the total for the year.
As discussed in Note 23, the Company recorded restructuring charges of $11,209 ($8,325 after tax), $2,251($1,680after tax) and $19,632 ($14,687 after tax) during the second, third and fourth quarters of fiscal 2020, respectively, in connection with employee termination benefit costs and lease termination and other related costs associated with its previously disclosed plan to restructure its organization, reducing gross profit, operating income, net income attributable to the Company and EPS for the second, third and fourth quarters of fiscal 2020.
As discussed in Note 22, in the second quarter of fiscal 2020, the Company recorded $32,686, or $0.35 per fully diluted share, of stock compensation expense for the Winfrey Amendment Option
As discussed in Note 7, in the first quarter of fiscal 2020, the Company recorded a $3,665, or $0.04 per fully diluted share, impairment charge for goodwill related to its Brazil reporting unit.
As discussed in Note 13, in the fourth quarter of fiscal 2020, the Company identified and recorded a $2,278 tax expense for out-of-period income tax adjustments.
(IN THOUSANDS)
(1)
Primarily represents the utilization of established reserves, net of recoveries, where applicable.
S-1
### EXHIBIT INDEX
Exhibit
Number
Description
*23.1
*31.1
Rule 13a-14(a) Certification by Mindy Grossman, Chief Executive Officer
*31.2
Rule 13a-14(a) Certification by Amy OKeefe, Chief Financial Officer
*32.1
*Exhibit 101
*EX-101.INS
*EX-101.SCH
*EX-101.CAL
*EX-101.DEF
*EX-101.LAB
*EX-101.PRE
*Exhibit104
The cover page from WW International, Inc.s Amendment No. 1 to Annual Report on Form 10-K for the fiscal year ended
### January2, 2021
, formatted in Inline XBRL (included within the Exhibit 101 attachments).
*
Filed herewith.
SIGNATURE
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Stikker. Mr. Hartheimer will serve as chairman of the audit committee. Hartheimer qualifies as an audit committee financial expert as defined in applicable SEC rules.
obtaining and reviewing a report, at least annually, from the independent auditors describing (i) the independent auditors internal quality-control procedures and (ii) any material issues raised by the most recent internal quality-control review, or peer review, of the audit firm, or by any inquiry or investigation by governmental or professional authorities, within, the preceding five years respecting one or more independent audits carried out by the firm and any steps taken to deal with such issues;
### Compensation Committee
Stikker and Mangum. Mr. Mangum will serve as chairman of the compensation committee.
Notwithstanding the foregoing, other than the monthly payment of $10,000 to an affiliate of our sponsor for office space, administrative and support services, and the monthly payment of $20,000 to an affiliate of Chief Executive Officer for advisory services related to its search for and consummation of our initial business combination, no compensation of any kind, including finders, consulting or other similar fees, will be paid to any of our existing shareholders, officers, directors or any of their respective affiliates, prior to, or for any services they render in order to complete the consummation of a business combination.
### Director Nominations
Our shareholders that wish to nominate a director for election to our board of directors should follow the procedures set forth in our bylaws.
Section 16(a) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, requires our executive officers, directors and persons who beneficially own more than 10% of a registered class of our equity securities to file with the initial reports of ownership and reports of changes in ownership of our ordinary shares and other equity securities.
Code of Ethics
Item 11.
### Executive Compensation
Other than the monthly payment of $10,000 to an affiliate of our sponsor for office space, administrative and support services and the monthly payment of $20,000 to an affiliate of Chief Executive Officer for advisory services related to its search for and consummation of our initial business combination, none of our executive officers or directors has received any cash (or non-cash) compensation for services rendered to us.
The Compensation Committee has reviewed and discussed the with management and, based upon its review and discussions, the Compensation Committee recommended to the board of directors that the be included in this Annual Report on Form 10-K for the year ended December 31, 2019.
### Item 12.
The following table sets forth information regarding the beneficial ownership of our ordinary shares as of February 23, 2021 based on information obtained from the persons named below, with respect to the beneficial ownership of ordinary shares, by: each person known by us to be the beneficial owner of more than 5% of our outstanding ordinary shares;
In the table below, percentage ownership is based on 34,500,000 Class A ordinary shares, which includes Class A ordinary shares underlying the units sold in our initial public offering, and 8,625,000 Class B ordinary shares outstanding as of February 23, 2021.
* less than 1%
1)
Unless otherwise noted, the business address of each of the following entities or individuals is 9912 Georgetown Pike, Suite D203, Great Falls, Virginia 22066.
2)
Interests shown consist solely of founders shares, classified as Class B ordinary shares. Such ordinary shares will convert into Class A ordinary shares on a one-for-one basis, subject to adjustment.
3)
Mr. Simanson, our President and Chief Executive Officer, may be deemed to beneficially own shares held by our sponsor by virtue of his control over our sponsor, as its managing member. Mr. Simanson disclaims beneficial ownership of our ordinary shares held by our sponsor other than to the extent of his pecuniary interest in such shares.
4)
was the beneficial owner of 1,820,675 Class A ordinary shares of the Company. The address for the reporting persons principal business office is 366 Adelaide, Suite 601, Toronto, Ontario M5V 1R9, Canada.
The table above does not include the ordinary shares underlying the private placement warrants held or to be held by our officers or sponsor because these securities are not exercisable within 60 days of this report.
### None
Changes in Control
None.
### Item 13.
In February 2019, our sponsor purchased 8,625,000 founder shares for an aggregate purchase price of $25,000, or approximately $0.003 per share.
In August 2019, our sponsor purchased an aggregate of 8,650,000 warrants at a price of $1.00 per warrant for an aggregate purchase price of $8,650,000 in a private placement closed simultaneously with the closing of our initial public offering. Each private placement warrant entitles the holder upon exercise to purchase one Class A ordinary share at a price of $11.50 per share, subject to adjustment.
We have entered into an with First Capital Group, LLC, an affiliate of our sponsor, pursuant to which we pay a total of $10,000 per month for office space, administrative and support services to such affiliate. Accordingly, in the event the consummation of our initial business combination takes the maximum 24 months, an affiliate of our sponsor will be paid a total of $240,000 ($10,000 per month) for office space, administrative and support services.
We have entered into an Advisory Agreement with an affiliate of our Chief Executive Officer, pursuant to which the Company will pay a total of $20,000 per month for advisory services relating to our search for and consummation of an initial business combination. Accordingly, in the event the consummation of our initial business combination takes the maximum 24 months, an affiliate of our Chief Executive Officer will be paid a total of $480,000 ($20,000 per month) for such advisory services and will be entitled to be reimbursed for any out-of-pocket expenses.
We and Monroe Capital, LLC, a member of our sponsor, entered into a letter agreement granting Monroe Capital a right of first refusal to provide up to 51% of any necessary debt financing in connection with our initial business combination and the right to act as lead agent and arranger in connection thereto.
Our audit committee reviews, on a quarterly basis, all payments that were made to our sponsor, officers, directors or our or their affiliates and will determine which expenses and the amount of expenses that will be reimbursed.
Prior to the consummation of our initial public offering, our sponsor loaned us an aggregate of $277,600 to us under an unsecured promissory note, which were used for a portion of the expenses of our initial public offering.
Item 14.
The following is a summary of fees paid or to be paid to Grant Thornton LLP, or GT, for services rendered.
Audit Fees
Audit fees consist of fees for professional services rendered for the audit of our year-end financial statements and services that are normally provided by GT in connection with regulatory filings. The aggregate fees of GT for professional services rendered for the audit of our annual financial statements, review of the financial information included in our Forms 10-Q for the respective periods and other required filings with the SEC for the period for the year ended December 31 2020 and from February 13, 2019 (date of inception) to December 31, 2019 totaled approximately $36,900 and $44,284, respectively. The aggregate fees of GT related to audit services in connection with our initial public offering totaled approximately $26,250.
### Audit-Related Fees
During the year ended December 31, 2020 and for the period from February 13, 2019 (date of inception) to December 31, 2019 we did not pay GT any audit-related fees.
Tax Fees
We did not pay GT for tax services, planning or advice for the year ended December 31, 2020 and for the period from February 13, 2019 (date of inception) to December 31, 2019.
### All Other Fees
We paid GT $360,400 for other services for the year ended December 31, 2020 and $0 for the period from February 13, 2019 (date of inception) to December 31, 2019 for due diligence services in connection with the business combination.
Pre-Approval Policy
### PART IV
Item 15.
(a)
(1)
Financial Statements F-1 to F-20
(2)
(3)
### Exhibits
EXHIBIT INDEX
*
Filed herewith
**
Furnished herewith
(1)
Incorporated by reference to the Companys Form 8-K, filed with the SEC on August 14, 2019.
(2)
Incorporated by reference to the Companys Form S-1/A, filed with the SEC on July 29, 2019.
(3)
Incorporated by reference to the Companys Form S-1, filed with the SEC on July 17, 2019.
(4)
Incorporated by reference to the Companys Form 8-K, filed with the SEC on December 14, 2020.
Item 16.
### Form 10-K Summary
Not applicable.<|endoftext|>Collectively referred to herein as the Reporting Persons, to file initial statements of beneficial ownership of securities and statements of changes in beneficial ownership of securities with respect to the Companys equity securities with the SEC. Based solely on our review of the copies of such reports and upon written representations of the Reporting Persons received by us, we believe that the following transactions were not timely reported:
ITEM 11.
### EXECUTIVE COMPENSATION
Employment Agreements
ITEM 12.
The following table sets forth as of March 31, 2021 the number of shares of common stock beneficially owned by (i)each person who is known by us to be the beneficial owner of more than five percent of our issued and outstanding shares of common stock (ii)each of our officers and directors; As of March 31, 2021, we had 25,156,250 shares of common stock issued and outstanding.
The following table does not reflect record of beneficial ownership of any shares of common stock issuable upon exercise of the warrants, as the warrants are not exercisable within 60 days of March 31, 2021.
*
Less than 1%
(1)
Unless otherwise indicated, the business address of each of the individuals is c/o , c/o Gibson, Deal & Fletcher, PC, Spalding Exchange, 3953 Holcomb Bridge Road, Suite 200, Norcross, Georgia 30092.
(2)
Consists of shares of common stock owned by Viveon Health, LLC, for which Jagi Gill is a member and Rom Papadopoulos is the managing member. Mr. Papadopoulos has sole voting and dispositive control over those shares.
(3)
Rom Papadopoulos is the managing member of Viveon Health, LLC.
(4)
Based on a Schedule 13G filed by the reporting person, the address for the reporting person is c/o Mourant Governance Services (Cayman) Limited, 94 Solaris Avenue, Camana Bay, P.O. Box 1348, Grand Cayman, KY 1-1108, Cayman Islands and 161 Bay Street, TD Canada Trust Tower, Ste. 2240, Toronto, ON M5J 2S1, Canada.
(5)
Based on a Schedule 13G filed by the reporting person, the address for the reporting person is 1-5-5. Otemachi, Chiyoda-ku, Tokyo 100-8176, Japan.
(6)
Based on a Schedule 13G filed by the reporting person, the address for the reporting person is 222 Berkeley St., 16th Floor, Boston, MA 02116.
During the escrow period, the holders of these shares will not be able to sell or transfer their securities except (1) to any persons (including their affiliates and stockholders) participating in the private placement of the private warrants, officers, directors, stockholders, employees and members of the Companys sponsor and its affiliates, (2) amongst initial stockholders or their respective affiliates, or to the Companys officers, directors, advisors and employees, (3) if a holder is an entity, as a distribution to its, partners, stockholders or members upon its liquidation, (4) by bona fide gift to a member of the holders immediate family or to a trust, the beneficiary of which is a holder or a member of a holders immediate family, for estate planning purposes, (5) by virtue of the laws of descent and distribution upon death, (6) pursuant to a qualified domestic relations order, (7) by certain pledges to secure obligations incurred in connection with purchases of the Companys securities, or (8) by private sales at prices no greater than the price at which the shares were originally purchased, in each case where the transferee agrees to the terms of the escrow agreement and the insider letter.
ITEM 13.
In August2020, our sponsor purchased 3,593,750 shares for an aggregate purchase price of $25,000, or approximately $0.007 per share. We subsequently declared a share dividend of 0.36 for each outstanding share, resulting in 4,887,500 shares outstanding, and on December 22, 2020 declared another share dividend of 0.03 for each outstanding share, resulting in 5,031,250 shares outstanding, which shares are referred to herein as founder shares or insider shares.
The Private Warrants are identical to the Warrants sold in the IPO except that the Private Warrants are non-redeemable and may be exercised on a cashless basis, in each case so long as they continue to be held by the Sponsor, or its permitted transferees.
In order to meet our working capital needs following the consummation of our IPO, our initial stockholders, officers and directors and their respective affiliates may, but are not obligated to, loan us funds, from time to time or at any time, in whatever amount they deem reasonable in their sole discretion.
The holders of our insider shares issued and outstanding on the date of this annual report, as well as the holders of the Private Warrants (and all underlying securities) are entitled to registration rights pursuant to the registration rights agreement, dated December 22, 2020. The holders of a majority of the private warrants can elect to exercise these registration rights at any time after we consummate a business combination.
We reimburse our officers and directors for any reasonable out-of-pocket business expenses incurred by them in connection with certain activities on our behalf such as identifying and investigating possible target businesses and business combinations. Our audit committee reviews and approves all reimbursements and payments made to any initial stockholder or member of our management team, or our or their respective affiliates, and any reimbursements and payments made to members of our audit committee are reviewed and approved by our Board of Directors, with any interested director abstaining from such review and approval.
No compensation or fees of any kind, including finders fees, consulting fees or other similar compensation, will be paid to any of our initial stockholders, officers or directors who owned our shares of common stock, or to any of their respective affiliates, prior to or with respect to the business combination (regardless of the type of transaction that it is).
### Related Party Policy
Related-party transactions are defined as transactions in which (1) the aggregate amount involved will or may be expected to exceed $120,000 in any calendar year, (2) we or any of our subsidiaries is a participant, and (3) any (a) executive officer, director or nominee for election as a director, (b) greater than 5% beneficial owner of our common stock, or (c) immediate family member, of the persons referred to in clauses (a) and (b), has or will have a direct or indirect material interest (other than solely as a result of being a director or a less than 10% beneficial owner of another entity).
Such transactions require prior approval by our audit committee and a majority of our uninterested independent directors, or the members of our board who do not have an interest in the transaction, in either case who had access, at our expense, to our attorneys or independent legal counsel.
In furtherance of our policies with respect to related party transactions, with respect to any initial business combination that we consider with an entity that is affiliated with any of our initial stockholders, directors or officers, to further minimize potential conflicts of interest, we have agreed not to consummate a business combination with an entity affiliated with such parties unless (i)an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions on the type of target business we seek to acquire that such an initial business combination is fair to our unaffiliated stockholders from a financial point of view and (ii)the approval of a majority of our disinterested and of our independent directors.
### Director Independence
NYSE Americans listing standards require that a majority of our board of directors be independent.
ITEM 14.
Public Accounting Fees
During the period from August 7, 2020 (inception) through December31, 2020, the firm of Marcum LLP, has acted as our principal independent registered public accounting firm.
Audit Fees. The aggregate fees billed by Marcum LLP for professional services rendered for the audit of our annual financial statements, review of the financial information included in our Forms 10-Q for the respective periods, the registration statement, the closing 8-K and other required filings with the SEC for the period from August 7, 2020 (inception) through December31, 2020 totaled $63,500.
Audit-Related Fees. We did not pay Marcum LLP for consultations concerning financial accounting and reporting standards for the period from August 7, 2020 (inception) through December31, 2020.
Tax Fees. We did not pay Marcum LLP for tax planning and tax advice for the period from August 7, 2020 (inception) through December31, 2020.
All Other Fees. We did not pay Marcum LLP for other services for the period from August 7, 2020 (inception) through December31, 2020.
### Pre-Approval of Services
part
IV
ITEM 15.
(a)
(1)
(2)
### Not applicable
(b)
Exhibits
Exhibits which are incorporated herein by reference can be obtained from the SECs website at sec.gov.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Officer, principal accounting officer, and as a member of our board of directors on January 27, 2021, in anticipation of the completion of the Share Exchange with SRAX. He received no compensation during 2020, although did receive 841,184,289 shares of Common Stock for certain past due and unpaid deferred compensation pursuant to a separation agreement entered into with the Company on January 27, 2021, prior to the completion of the Share Exchange.
### Employment of Christopher Miglino
Mr. Miglino was appointed as interim Principal Executive Officer on May 18, 2021 subsequent to Mr. Kerners termination as chief executive officer that was effective on May 15, 2021. Mr. Miglino is the chief executive officer of SRAX, BIG Tokens former parent company, and is not being compensated for his interim services. Miglino and any of the directors or officers of the Company or its subsidiaries.
Outstanding Equity Awards at Year End
None as of December 31, 2020.
### Our Equity Compensation Plans
On March 16, 2021, our Board of Directors approved the 2021 Equity Incentive Plan (2021 Plan). The 2021 Plan has not been approved by the Companys stockholders, and is administered by our Board or such committee appointed by the Board. The 2021 Plan provides for the grant of incentive stock options, nonstatutory stock options, restricted stock, performance units, performance shares, restricted stock units, and other stock-based awards to our employees, directors, and consultants. The purpose of the 2021 Plan is to attract and retain the best available personnel for positions of substantial responsibility, to provide additional incentive to our employees, directors and consultants, and to promote the success of the Companys business. Under the terms of the 2021 Plan, the Company initially reserved 15,824,493,516 shares of Common Stock, subject to an automatic increase on the first day of each calendar year such that the number of shares available for issuance under the 2021 Plan will be 10% of the outstanding shares of Common Stock of the company. The 2021 Plan further authorizes the administrator to amend the exercise price and terms of certain awards thereunder. As of the date of this Annual Report, no awards have been granted under the 2021 Plan.
The following table sets forth securities authorized for issuance under any equity compensation plans approved by our shareholders as well as any equity compensation plans not approved by our stockholders as of December 31, 2020.
### Director Compensation
Below is a description of our compensation policy for non-employee director compensation, which is in effect beginning February 4, 2021, the date that the Share Exchange closed.
Board Compensation Policy
Beginning on February 4, 2021, each non-employee director will receive a cash payment of $7,500 per full quarter of service on the Board. All fees will be paid at the end of each respective quarter. In the event of partial service for a quarter, such Board member will receive such prorated portion of director fees for days of service in the applicable quarter.
The following table provides information concerning the compensation paid to our non-executive directors for their services as members of our board of directors for the year ended December 31, 2020. Upon completion of the Share Exchange, the Company is adopting a December 31 fiscal year end. The information in the following table excludes any reimbursement of out-of-pocket travel and lodging expenses which we may have paid.
ITEM 12.
Beneficial ownership for the purposes of the following table is determined in accordance with the rules and regulations of the SEC. These rules generally provide that a person is the beneficial owner of securities if they have or share the power to vote or direct the voting thereof, or to dispose or direct the disposition thereof or have the right to acquire such powers within 60 days. Accordingly, the following table does not include options to purchase our common stock that are not exercisable within the next 60 days.
*
Represents less than one percent.
(1)
(2)
There are 226,828,797,262 shares of common stock issued and outstanding as of May 26, 2021.
(3)
Address for holder is 1249 Kildare Farm Road, Suite 2019, Cary, NC 27511. Mr. Feldmans employment as CEO and sole member of the Board was terminated as of the close of business on January 27, 2021.
(4)
Mr. Kerner began service as CEO on February 17, 2021. On May 15, 2021, his employment was terminated with the Company.
(5)
George Stella began service as Chief Revenue Officer on February 4, 2021. Effective May 18, 2021, Mr. Stella was additionally appointed to the role of President of the Company.
### Series A Preferred Stock
The Company also has 5,000,000 shares of Series A Preferred Stock issued and outstanding, all of which are held by SRAX. The Series A Preferred Stock is not convertible into common stock.
(1)
(2)
There are 5,000,000 shares of Series A Preferred Stock issued and outstanding as of May 26, 2021
ITEM 13.
We review all known relationships and transactions in which the Company and our directors, executive officers, and significant stockholders or their immediate family members are participants to determine whether such persons have a direct or indirect interest. Our management, in consultation with our outside legal consultants, determines based on specific fact and circumstances whether the Company or a related party has a direct or indirect interest in these transactions. In addition, our directors and executive officers are required to notify us of any potential related party transactions and provide us with the information regarding such transactions.
Information regarding disclosure of an employment relationship or transaction involving an executive officer and any related compensation solely resulting from that employment relationship or transaction is included in the Section of this annual report entitled
### Director Compensation and
Executive Compensation
Information regarding disclosure of compensation to a director is included in the Section of this proxy statement entitled
### Director Compensation.
Summarized below are certain transactions and business relationships between the Company and persons who are or were an executive officer, director or holder of more than five percent of any class of our securities since January 1, 2019:
List of Parent Companies
### SRAX, Inc.
Effective February 4, 2021, SRAX became a majority shareholder of the Company and its subsidiary BIG Token. As of the May 26, 2021, SRAX owns 149,562,566,584 shares of Common Stock of the Company, accounting for approximately 66% of the outstanding Common Stock. SRAX also owns 5,000,000 shares of the Companys Series A Preferred Stock, accounting for 100% of the Series A Preferred Stock outstanding. As a result of such ownership of securities, SRAX has unilateral control over the Company in all matters of voting, including election of directors as of the date hereof.
Independence of Directors
As of May 26, 2021, the Companys directors are contained below. For purposes of determining independence, the Company has adopted the definition of independence as contained in Nasdaq Market Place Rule 5605(a)(2). Pursuant to the definition, the Company has determined that Yin Woon Rani and Daina Middleton qualify as independent.
ITEM 14.
The following table shows the fees that were billed for the audit and other services provided by Assurance Dimensions for 2019 and 2020 and Soles, Heyn & Company, LLP for 2019. Soles, Heyn, & Company served as the Companys independent registered public accounting firm until October 16, 2019. Assurance Dimensions was retained by the company on October 16, 2019 and dismissed as the Companys independent registered public accounting firm on February 9, 2021. On February 9, 2021, the Board appointed RBSM, LLP (RBSM) as the Companys independent registered public accounting firm.
Audit Fees
### Audit-Related Fees
The services for the fees disclosed under this category include consultation regarding our correspondence with the Securities and Exchange Commission and other accounting consulting.
Tax Fees
Pre-Approval of Independent Auditor Services and Fees
The Company currently does not have a standing audit committee. Accordingly, consistent with the SEC policies regarding auditor independence, our Board of Directors has responsibility for appointing, setting compensation and overseeing the work of the independent auditor. In recognition of this responsibility, our Board of Directors has established a policy to pre-approve all audit and permissible non-audit services provided by the independent auditor.
PART IV
ITEM 15.
### Filed/
Incorporated by Reference
Exhibit
### Furnished
Exhibit
No.
### Description
Herewith
Form
No.
File No.
Filing Date
31.1/31.2
Certification of the Principal Executive Officer and Principal Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
*<|endoftext|>The closing of the Virgin Galactic Business Combination and the shares of our common stock received by Vieco US in connection with the Virgin Galactic Business Combination and now held by VIL and Aabar, including a two-year lock-up of such shares held by the Sponsor and 50% of the shares received by Vieco US, in each case, subject to limited exceptions as contemplated thereby.
VG Companies Historical Relationship with Vieco 10
In connection with the Virgin Galactic Business Combination, we entered into new or amended agreements in order to provide a framework for its relationship with VEL, Vieco 10 and their respective affiliates (other than the VG Companies), including the Amended TMLA and the Transition Services Agreements as described below.
### Virgin Trademark License Agreement
Our rights under the Amended TMLA are subject to certain reserved rights and pre-existing licenses granted by Virgin Enterprises Limited (VEL) to third parties. In addition, for the term of the Amended TMLA, to the extent the Virgin Group does not otherwise have a right to place a director on our Board of Directors, we have agreed to provide VEL with the right to appoint one director to our Board of Directors, provided the designee is qualified to serve on the Board of Directors under all applicable corporate governance policies and applicable regulatory and listing requirements.
Unless terminated earlier, the Amended TMLA has an initial term of 25 years expiring October 2044, subject to up to two additional 10-year renewals by mutual agreement of the parties. The Amended TMLA may be terminated by VEL upon the occurrence of a number of specified events, including if: we commit a material breach of our obligations under the Amended TMLA (subject to a cure period, if applicable); we become insolvent; we undergo a change of control to an unsuitable buyer, including to a competitor of VEL; we challenge the validity or entitlement of VEL to own the Virgin brand;
Upon any termination or expiration of the Amended TMLA, unless otherwise agreed with VEL, we will have 90 days to exhaust, return or destroy any products or other materials bearing the licensed trademarks, and to change our corporate name to a name that does not include any of the licensed trademarks, including the Virgin name.
Pursuant to the terms of the Amended TMLA, we are obligated to pay VEL quarterly royalties equal to the greater of (a) a low single-digit percentage of our gross sales and (b) (i) prior to the first spaceflight for paying customers, a mid-five figure amount in dollars and (ii) from our first spaceflight for paying customers, a low-six figure amount in dollars, which increases to a low-seven figure amount in dollars over a four-year ramp up and thereafter increases in correlation with the consumer price index. In the year ended December 31, 2020, we paid Virgin a total of $0.2 million under the Amended TMLA and its predecessor agreement. For the years ended December 31, 2019 and 2018, the VG Companies made certain license and royalty payments of $0.1 million and $0.1 million, respectively, under the prior license agreement.
The Amended TMLA also contains, among other things, customary mutual indemnification provisions, representations and warranties, information rights of VEL and restrictions on our and our affiliates ability to apply for or obtain registration for any confusingly similar intellectual property to that licensed to us pursuant to the Amended TMLA. Furthermore, VEL is generally responsible for the maintenance, enforcement and protection of the licensed intellectual property, including the Virgin brand, subject to our step-in rights in certain circumstances.
All Virgin and Virgin-related trademarks are owned by VEL and our use of such trademarks is subject to the terms of the Amended TMLA, including our adherence to VELs quality control guidelines and granting VEL customary audit rights over our use of the licensed intellectual property.
At the closing of the Virgin Galactic Business Combination, we entered into the U.S. Transition Services Agreement, pursuant to which we and Galactic Ventures LLC and Virgin Orbit, LLC, which had previously part of the same consolidated corporate group as the VG Companies, established a service schedule to control the provision of services among the parties. Virgin Orbit, LLC provides propulsion engineering, tank design support services, tank manufacturing services, office space access and usage services to us, as well as business development and regulatory affairs services. We provide office space, logistics, welding services, IT services, pilot utilization services, finance and accounting services, and insurance advisory services to Virgin Orbit, LLC. Galactic Ventures LLC will continue to provide IT services us for so long as such IT services have not been fully transitioned or the applicable contracts have not been assigned. We received $0.5million and $0.2 million under the U.S. Transition Services Agreement in the years ended December 31, 2020 and 2019, respectively.
At the closing of the Virgin Galactic Business Combination, we also entered into the U.K. Transition Services Agreement, pursuant to which certain of our employees based in the United Kingdom continue to receive access to certain third party and Virgin Group employee benefits services.
### Compensation of Chief Astronaut Instructor
Our chief astronaut instructor, Natalie Beth Moses, is an immediate family member of Michael Moses, one of our executive officers. Mrs. Moses received approximately $328,119 in total compensation in 2020.
Item 14.
The table below sets forth the aggregate fees billed by KPMG in 2019 and 2020.
(1) Audit fees include fees for services performed to comply with the standards established by the Public Company Accounting Oversight Board, including the audit of our consolidated financial statements.
(2) All Other Fees consisted of fees billed for services involving due diligence performed in connection with directors' and officers' insurance under Social Capitals engagement entered into prior to the Virgin Galactic Business Combination.
(3) Represent fees billed for services for the period from October 26, 2019 through December 31, 2019 following the Virgin Galactic Business Combination. Audit Fees include the 2019 audit of our consolidated financial statements for approximately $630,000, the statutory audit performed for Virgin Galactic Limited for approximately $24,000, fees for SEC filings related to the registration of shares issuable under the Virgin Galactic Holdings, Inc. 2019 Incentive Award Plan and warrants and fees for SEC filings associated with the Virgin Galactic Business Combination for approximately $74,000.
(4) Represent fees billed for services for the period from January 1, 2019 through October 25, 2019 prior to the Virgin Galactic Business Combination. Audit Fees include the fiscal year 2017 and 2018 carve-out audits for approximately $383,000 and fees related to SEC filings associated with the Virgin Galactic Business Combination for approximately $349,000.
The formal written charter for our audit committee requires that the audit committee pre-approve all audit services to be provided to us, whether provided by our principal auditor or other firms, and all other services (review, attest and non-audit) to be provided to us by our independent registered public accounting firm, other than de minimis non-audit services approved in accordance with applicable SEC rules.
The audit committee has adopted a pre-approval policy that sets forth the procedures and conditions pursuant to which audit and non-audit services proposed to be performed by our independent registered public accounting firm may be pre-approved. This pre-approval policy generally provides that the audit committee will not engage an independent registered public accounting firm to render any audit, audit-related, tax or permissible non-audit service unless the service is either (i) explicitly approved by the audit committee or (ii) entered into pursuant to the pre-approval policies and procedures described in the pre-approval policy. Unless a type of service to be provided by our independent registered public accounting firm has received this latter general pre-approval under the pre-approval policy, it requires specific pre-approval by the audit committee.
On an annual basis, the audit committee reviews and generally pre-approves the services (and related fee levels or budgeted amounts) that may be provided by the Companys independent registered public accounting firm without first obtaining specific pre-approval from the audit committee. Any member of the audit committee to whom the committee delegates authority to make pre-approval decisions must report any such pre-approval decisions to the audit committee at its next scheduled meeting.
Following the Virgin Galactic Business Combination, all of the services listed in the table above were preapproved by our audit committee.
### Part IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
The end of the contract periods.
Services for some contract work are invoiced and recognized for work that has been performed as the project progresses.
The Company sells clinical lab products to domestic and international distributors, including hospitals and clinical laboratories, medical research institutions, medical schools and pharmaceutical companies. OTC products are sold directly to drug stores and e-commerce customers as well as to distributors. Physicians office products are sold to physicians and distributors, all of whom are categorized below according to the type of products sold to them. We also manufacture certain components on a contract basis for domestic and international manufacturers.
See Note 2 to our consolidatedfinancial statements for a listing of adopted and soon to be adopted accounting pronouncements.
ITEM 7A.
Not required.
ITEM 8.
Exhibit 99.3, "Biomerica, Inc. and Subsidiaries Consolidated Financial Statements" is incorporated herein by this reference.
ITEM 9.
None.
### ITEM 9A. CONTROLS AND PROCEDURES
Attached as exhibits to this Form 10-K/A are certifications of our Chief Executive Officer (CEO) and Chief Financial Officer (CFO) that are required in accordance with Rule 13a-14 of the Exchange Act. This Disclosure Controls and Procedures section includes information concerning the controls and controls evaluation referred to in the certifications.
EVALUATION OF DISCLOSURE CONTROLS
Our management evaluated the effectiveness of our disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended, or the Exchange Act as of the end of the period covered by this report. Our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. The disclosure controls and procedures have been designed to provide reasonable assurance of achieving their objectives.
Based upon their evaluation our CEO and CFO concluded that due to a material weakness in internal control over financial reporting, solely due to the events that led to the Companys restatement of its financial statements to address the non-cash stock based compensation deficiency as described in the Explanatory Note to this Amendment No. 1 on Form 10-K/A, as of May 30, 2021, our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d- 15(e) under the Exchange Act) were not effective.
In light of this material weakness, we performed additional analysis as deemed necessary to ensure that our financial statements were prepared in accordance with accounting principles generally accepted in the United States. 1 on Form 10-K/A present fairly in all material respects, our financial position, results of operations and cash flows for the period presented.
There have been no changes in our internal control over financial reporting identified in connection with the evaluation that occurred during the last fiscal year that have materially affected, or that are reasonably likely to affect, our internal control over financial reporting.
Due solely to the events that led to our restatement of our financial statements, management has identified a material weakness in internal control over financial reporting related to the accounting for stock compensation, as described in Note 11 to the Notes to our Consolidated Financial Statements. In light of the restatement of our financial statements included in this Amendment No. 1 on Form 10-K/A, d uring the second quarter ending November30, 2021 and prior to filing this Amendment No. 1 on Form 10-K/A, we completed the following steps to address the material weakness disclosed above: implemented a leading industry standard equity and disclosure management software system to calculate non-cash stock-based compensation expense; engaged an outside accounting advisory firm to review our revised stock-based compensation amounts and our methods for calculating non-cash stock-based compensation expenses going forward; developed and implemented additional procedures to increase the level of review, evaluation and validation of the Companys stock-based compensation expense; increased the level of knowledge among our executives and accounting staff in the area of stock-based compensation; and independently tested the calculations produced by our new equity and disclosure management software system
Company management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) under the Securities Exchange Act of 1934. The Company's internal control over financial reporting is designed to provide reasonable assurance to the Company's management and Board of Directors regarding the reliability of financial reporting and the preparation and fair presentation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America.
A Company's internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States of America, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the consolidated financial statements.
The effectiveness of any system of internal control over financial reporting is subject to inherent limitations, including the exercise of judgment in designing, implementing, operating and evaluating the controls and procedures. Because of these inherent limitations, internal control over financial reporting cannot provide absolute assurance regarding the reliability of financial reporting and may not prevent or detect misstatements.
Company management, with the participation of the CEO and the CFO, evaluated the effectiveness of the Company's disclosure controls and procedures as defined in Rules 13(a)-15(e) and 15(d)-15(e) under the Securities Exchange Act of 1934, as amended, or the Exchange Act, as of the end of the period covered by this report. In making this assessment, Management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control - Integrated Framework (2013). Based on our re-assessment, our management, with the participation of the CEO and CFO, concluded that our internal control over financial reporting was not effective as of May 31, 2021, based on the material weakness disclosed above.
Company management will continue to monitor and evaluate the effectiveness of its disclosure controls and procedures and its internal controls over financial reporting on an ongoing basis and are committed to taking further action and implementing improvements, as necessary, including the measures described above to address our material weakness, and as funds allow.
Note: This 10-K/A does not include an attestation report of the Company's registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by the Company's registered public accounting firm pursuant to rules of the Securities and Exchange Commission that permit the Company to provide only management's report in this 10-K/A.
ITEM 9B. OTHER INFORMATION.
None.
PART III
ITEM 10.
### ITEM 11. EXECUTIVE COMPENSATION
ITEM 12.
ITEM 13.
Other information regarding related transactions is incorporated by reference to the Company's proxy statement for its 2021 Annual Meeting of Stockholders, which will be filed not later than 120 days after the end of the Company's fiscal year ended May 31, 2021.
### ITEM 14.
Please refer to the Companys proxy statement for its 2021 Annual Meeting of Stockholders, which will be filed not later than 120 days after the end of the Companys fiscal year ended May 31, 2021.
PART IV
The certifications attached as Exhibits 32.1 and 32.2 accompany this Annual Report pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, and shall not be deemed filed by the registrant for purposes of Section 18 of the Exchange Act and are not to be incorporated by reference into any of the registrants filings under the Securities Act or the Exchange Act, irrespective of any general incorporation language contained in any such filing.<|endoftext|>On the Effective Date and the remaining 478,936 shares will vest in 12 equal installments of 39,911 shares each on the last day of each fiscal quarter.
We did not make any plan-based equity or non-equity awards grants to named executives during the years ended December 31, 2020 and 2019.
Option Exercises
There were no options exercised by our named officers during the years ended December 31, 2020 and 2019.
We have no non-executive directors. Our directors did not earn compensation for the years ended December 31, 2020 and 2019.
Our Board of Directors reserves the right to pay our executives or any future executives a salary, and/or issue them shares of common stock issued in consideration for services rendered and/or to award incentive bonuses which are linked to our performance, as well as to the individual executive officers performance. This package may also include long-term stock-based compensation to certain executives, which is intended to align the performance of our executives with our long-term business strategies.
Incentive Bonus
The Board of Directors may grant incentive bonuses to our executive officers and/or future executive officers in its sole discretion, if the Board of Directors believes such bonuses are in the Companys best interest, after analyzing our current business objectives and growth, if any, and the amount of revenue we are able to generate each month, which revenue is a direct result of the actions and ability of such executives.
In order to attract, retain and motivate executive talent necessary to support the Companys long-term business strategy we may award our executives and any future executives with long-term, stock-based compensation in the future, at the sole discretion of our Board of Directors.
ITEM 12.
The following table sets forth certain information, as of April 14, 2021 with respect to the beneficial ownership of the outstanding common stock by (i) any holder of more than five (5%) percent; (ii) each of the Companys executive officers and directors; and (iii) the Companys directors and executive officers as a group.
*
Officer and/or director of the Company
(1)
Except as otherwise indicated, the address of each beneficial owner is c/o Sentient Brands Holdings Inc., 555 Madison Avenue, 5 th
Floor, New York, NY 10022.
(2)
Applicable percentage ownership is based on 50,782,116 shares of common stock outstanding as of April 14, 2021, together with securities exercisable or convertible into shares of common stock within 60 days of April 14, 2021 for each stockholder. Shares of common stock that are currently exercisable or exercisable within 60 days of April 14, 2021 are deemed to be beneficially owned by the person holding such securities for the purpose of computing the percentage of ownership of such person but are not treated as outstanding for the purpose of computing the percentage ownership of any other person.
(3)
On December 26, 2019, the Company and George Furlan entered into a Restricted Stock Purchase Agreement pursuant to which the George Furlan purchased from the Company an aggregate of 5,028,821 restricted shares of common stock (the Furlan Shares) at $0.01186 per share in consideration of an aggregate purchase price of $8,520.26. 1,676269 of the Furlan Shares vested on December 26, 2019 and the remaining 3,352,552 Furlan Shares shall vest in 12 quarterly installments of 279,377 Furlan Shares thereafter. (Furlan Shares reflected on a post-forward split basis.)
(4)
On January 8, 2020, the Company and James Mansour entered into a Restricted Stock Purchase Agreement pursuant to which the James Mansour purchased from the Company an aggregate of 5,028,821 restricted shares of common stock (the Mansour Shares) at $0.01186 per share in consideration of an aggregate purchase price of $8,520.26. 2,514,407 of the Mansour Shares vested on January 8, 2020 and the remaining 2,514,414 Mansour Shares shall vest in 12 quarterly installments of 209,531 Mansour Shares thereafter.
(5)
Dante Jones received the shares of common stock of the Company in connection with the Agreement and Plan of Reorganization entered into and closed between the Company and Jaguaring Company, d/b/a Cannavolve, on February 14, 2020.
(6)
Principal Holdings, LLC is owned and controlled solely by Danielle Doukas.
(7)
Bogaard Holdings LLC is owned and controlled by Jelena Vadanjel.
(8)
Pure Energy 714 LLC is owned and controlled by Louis Sorrentino.
(9)
Gregg Templeton is a former employee of the Company.
(10)
Bagel Hole Inc. is owned and controlled solely by Philip Romanzi, the Companys former sole officer and director.
(11)
On March 2, 2021, the Company effected a 7:1 forward stock split of its issued and outstanding shares of common stock. All shares of common stock reflected in the above table, and in any corresponding footnotes, are accounted for on a post-forward split basis.
No Director, executive officer, affiliate or any owner of record or beneficial owner of more than 5% of any class of voting securities of the Company is a party adverse to the Company or has a material interest adverse to the Company.
ITEM 13.
The following includes a summary of transactions since the beginning of the 2020 fiscal year, or any currently proposed transaction, in which the Company was or is to be a participant and the amount involved exceeded or exceeds the lesser of $120,000 or one percent of the average of their total assets at year-end for the last two completed fiscal years, and in which any related person had or will have a direct or indirect material interest (other than compensation described under Executive Compensation).
### Related party transactions of the Company
On March 15, 2019, Bagel Hole, Inc. (Bagel Hole), a company owned by the Companys then-sole officer and director, Philip Romanzi, loaned Cannavolve $235,415, pursuant to a promissory note (the Cannavolve Note). The Cannavolve Note bore interest at 10% per annum and had a maturity date July 15, 2019, which was subsequently extended to August 31, 2019. Cannavolve subsequently defaulted on the note. On January 6, 2020, the balance of Cannavolve Note was invested by Bagel Hole in the Companys private offering being conducted at such time (the Offering), pursuant to which Bagel Hole was issued a total of 223,757 shares of common stock of the Company in connection with Offering. The Cannavolve Note is no longer outstanding as of the date of this Report.
At no time during the last two fiscal years has any executive officer, director or any member of these individuals immediate families, any corporation or organization with whom any of these individuals is an affiliate or any trust or estate in which any of these individuals serves as a trustee or in a similar capacity or has a substantial beneficial interest been indebted to the Company or was involved in any transaction in which the amount exceeded $120,000 and such person had a direct or indirect material interest.
Our Board of Directors is charged with reviewing and approving all potential related party transactions. All such related party transactions must then be reported under applicable SEC rules.
### Director Independence
Our Board of Directors has undertaken a review of its composition and the independence of each director. Based on the review of each directors background, employment and affiliations, including family relationships, the Board of Directors has determined that there are no independent directors under the rules and regulations of the SEC.
ITEM 14.
Boyle CPA LLC served as our independent auditors for the years ended December 31, 2020 and 2019. The following is a summary of the fees billed to the Company for professional services rendered for the fiscal years ended December 31, 2020 and 2019.
AUDIT FEES. Consists of fees billed for professional services rendered for the audit of the Companys consolidated financial statements and review of the interim consolidated financial statements included in quarterly reports and services in connection with statutory and regulatory filings or engagements.
AUDIT-RELATED FEES. Consists of fees billed for preparation of financial statements and related services that are reasonably related to the performance of the audit or review of the Companys consolidated financial statements and are not reported under Audit Fees.
TAX FEES.
ALL OTHER FEES. There were no management consulting services provided in fiscal 2020 or 2019.
The Company currently does not have a designated Audit Committee, and accordingly, the Companys Board of Directors policy is to pre-approve all audit and permissible non-audit services provided by the independent auditors. The independent auditors and management are required to periodically report to the Companys Board of Directors regarding the extent of services provided by the independent auditors in accordance with this pre-approval, and the fees for the services performed to date. The Board of Directors may also pre-approve particular services on a case-by-case basis.
ITEM 15. EXHIBITS
*
Filed herewith
#
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Skills of such an expert are simply not required or necessary for us to maintain effective internal controls and procedures for financial reporting in light of the limited scope and simplicity of accounting issues raised in its financial statements at this stage of its development.
Governance
,
### Compensation and Nominatin g
Committee
We do not have a standing governance, compensation and nominating committee of the Board of Directors. Management has determined not to establish governance, compensation and nominating committee at present because of our limited resources and limited operations do not warrant such a committee or the expense of doing so.
### Code of Ethics
The Company has adopted the following code of ethics for officers, directors and employees:
-
Show respect towards others in the workplace
-
Conduct all business activities in a fair and ethical manner
-
Work dutifully and responsibly for the Companys shareholders and stakeholders
Pursuant to the Texas Business Organizations Code, our Amended and Restated Articles of Incorporation exclude personal liability for our Directors for monetary damages based upon any violation of their fiduciary duties as Directors, except as to liability for any breach of the duty of loyalty, acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or any transaction from which a Director receives an improper personal benefit.
Legal Proceedings
During the past ten years, none of our current directors, executive officers or persons nominated to become directors or executive officers:
(1) A petition under the Federal bankruptcy laws or any state insolvency law was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two years before the time of such filing;
(2) Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses);
(3) Such person was the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him from, or otherwise limiting, the following activities:
(i) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity;
(ii) Engaging in any type of business practice; or
(iii) Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws;
(4) Such person was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in paragraph (f)(3)(i) of this section, or to be associated with persons engaged in any such activity;
(5) Such person was found by a court of competent jurisdiction in a civil action or by the Commission to have violated any Federal or State securities law, and the judgment in such civil action or finding by the Commission has not been subsequently reversed, suspended, or vacated;
(6) Such person was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated;
(7) Such person was the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of:
(i) Any Federal or State securities or commodities law or regulation; or
or
(iii) Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or
(8) Such person was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C.
Material Changes to the Procedures by which Security Holders May Recommend Nominees
There have been no material changes to the procedures by which security holders may recommend nominees to the registrants Board of Directors.
### ITEM 11. EXECUTIVE COMPENSATION
### Com p ensation of Executive Officers
The following summary compensation table sets forth all compensation awarded to, earned by, or paid to the named executive officers paid by us during the fiscal years ended December 31, 2020 in all capacities for the accounts of our executives, including the Chief Executive Officer (CEO) and Interim Chief Operating Officer (Interim COO):
The following officers received the following compensation for the years ended December 31, 2020. These officers have employment contracts with the Company.
### Em p lo y ment A g reements
We have employment agreements in place with each of the above referenced officers of the Company.
### Com p ensation of Directors
Directors do not receive any compensation for their services as directors. The Board of Directors has the authority to establish the compensation of directors. No amounts have been paid to, or accrued to, directors in such capacity.
ITEM 12.
The following table lists the number of shares of Common Stock of our Company and, with respect to our officers, directors and principal stockholder, shares of our Super Voting Preferred Stock, as of May 14, 2020 that are beneficially owned by (i) each person or entity known to our Company to be the beneficial owner of more than 5% of the outstanding Common Stock; Information relating to beneficial ownership of Common Stock and Super Voting Preferred Stock by our principal stockholders and management is based upon information furnished by each person using beneficial ownership concepts under the rules of the Securities and Exchange Commission. Under the rules of the SEC, more than one person may be deemed to be a beneficial owner of the same securities, and a person may be deemed to be a beneficial owner of securities as to which he/she may not have any pecuniary beneficial interest. Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to the shares. Except as otherwise indicated, and subject to applicable community property laws, the persons named in the table have sole voting and investment power with respect to all shares of our common stock held by them.
(1)
Based upon 49,542,110 shares of Common Stock and 800,000 Super Voting Preferred Stock issued and outstanding as of April 15, 2021, Mr. Vanamalis voting stock represents 25.5% or 12,633,238 shares of voting capital stock. Mr. Vanamali is the CEO and President of the Company.
(2)
Based upon 49,542,110 shares of Common Stock and 800,000 Super Voting Preferred Stock issued and outstanding as of April 15, 2021. Mr. Baileys voting stock is 25.5% or 12,633,238 shares of voting capital stock. Mr. Bailey is a Director of the Company.
(3)
Includes shares of Common Stock and Super Voting Preferred Stock owned by our officers and directors as a group (2 persons).
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS AND DIRECTOR INDEPENDENCE
The Company does not have any related party transactions at this time.
The Company does not have any independent directors serving on the Board of Directors.
### ITEM 14.
Audit Fees
The aggregate fees incurred for professional services rendered by our auditors, for the audit of our annual financial statements and review of the financial statements included in our Form S-1, Form 10-K and Form 10-Q or services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for the year ended December 31, 2020 was $15,000.
### Audit Related Fees
None.
Tax Fees
None.
### All Other Fees
None.
PART IV
ITEM 15.
Exhibits
31.1
Certification of the Companys Principal Executive Officer and Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1
Certification of the Companys Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C.
XBRL<|endoftext|>Provides for quarterly increases in the available number of authorized shares equal to the lesser of 15% of any new shares issued by the Company during the quarter immediately prior to the adjustment date or such lesser amount as the Board of Directors shall determine.
In May 2013, the shareholders approved the 2013 Consultant Stock Plan that provides for the granting of shares of common stock to consultants who provide services related to capital raising, investor relations, and making a market in or promoting the Companys securities. The Companys officers, employees, and board members are not entitled to receive grants from the Consultant Plan. The Compensation Committee of the Board of Directors is authorized to administer the Consultant Plan and establish the grant terms. The Consultant Plan provides for quarterly increases in the available number of authorized shares equal to the lesser of 1% of any new shares issued by the Company during the quarter immediately prior to the adjustment date or such lesser amount as the Board of Directors shall determine.
The following table shows information known to us about beneficial ownership of our common stock by: each of our directors; each individual identified as an NEO in the section of this report titled Executive Compensation; and each person known by us to beneficially own 5% or more of our common stock.
Beneficial ownership and percentage ownership are determined in accordance with the rules of the SEC. Under these rules, beneficial ownership generally includes any shares as to which the individual or entity has sole or shared voting power or investment power and includes any shares that an individual or entity has the right to acquire ownership of on or before May 27, 2021, which is 60 days from March 28, 2021, through the exercise of any option, warrant, conversion privilege or similar right. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, shares of our common stock that could be issued upon the exercise of outstanding options and warrants that are exercisable on or before May 27, 2021 are considered to be outstanding.
To our knowledge, except as indicated in the footnotes to the following table and subject to state community property laws where applicable, all beneficial owners named in this table have sole voting and investment power with respect to all shares shown as beneficially owned by them. The percentage is based 30,900,634 shares of common stock, par value $.0001, issued and outstanding as of on March 28, 2021.
(1)
The address of each officer and director is 12870 Interurban Avenue South, Seattle, Washington 98168.
(2)
Beneficial ownership is determined in accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and is generally assigned to the person holding voting power and/or investment power with respect to securities. With the exception of the securities beneficially owned by our officers and directors and their affiliates, the ownership of the shares of common stock listed above were determined using public records.
(3)
Includes options to purchase 858,161 shares of common stock which may be exercised on or before May 27, 2021 . Excludes options to purchase 510,000 shares of common stock none of which will vest on or before May 27, 2021.
(4)
Includes common stock holdings of 10,071 and options to purchase 223,750 shares of common stock which may be exercised on or before May 27, 2021.Excludes options to purchase 36,250 shares of common stock, none of which will vest on or before May 27, 2021.
(5)
Includes common stock holdings of 123,672 shares and options to purchase 206,500 shares of common stock which may be exercised on or before May 27, 2021.Mr. Hoffman is the managing member of GPCLIRSPV LLC which is the managing member of CLIRSPV LLC, the owner of 5,867,968 shares of common stock. Mr. Hoffman disclaims beneficial ownership of these shares except to the extent of his pecuniary interest in CLIRSPV LLC.
(6)
Includes common stock holdings of 81,522 and options to purchase 227,500 shares of common stock which may be exercised on or before May 27, 2021.
(7)
The shares of common stock are owned 100,000 shares by the Pate Family Trust and 105,000 shares by Pate Capital Partners LP, a private investment partnership.Includes options to purchase 189,000 shares of common stock which may be exercised on or before May 27, 2021.
Participation in Common Stock Offering
In August 2020, the Company completed a registered public offering of the shares of its common stock pursuant to an effective registration statement on Form S-3 (File No. 333-232402) (the Offering). The following directors participated in the Offering on the same terms as the other investors and purchased shares of our common stock at a price of $2.00 per share.
### Investment by clirSPV LLP
Robert T. Hoffman Sr., one of our directors, is the managing member of GPCLIRSPV LLC, which is the managing member of clirSPV LLC. Mr. Hoffman has voting and investment control over the shares of common stock owned by clirSPV LLC.
In connection with a private placement of the Companys common stock pursuant to a Stock Purchase Agreement dated July 12, 2018, the Company granted to clirSPV LLC a right to purchase certain new equity securities that the Company sells for the purpose of raising capital on terms and conditions no different from those offered to other purchasers (the Participation Right) so that it could maintain a 19.99% percentage ownership (the Percentage Ownership) of the Companys outstanding common stock. The Participation Right will expire on December 31, 2023. Further, in conjunction with this investment made by clirSPV LLC, we entered into a Voting Agreement with clirSPV LLC pursuant to which Mr. Hoffman was named as a director.
Because certain elements of the Participation Right, such as the notice provisions, were not compatible with the Offering
, in a written waiver dated August 18, 2020, and fully executed on August 19, 2020, clirSPV LLC waived its right to exercise the Participation Right in connection with the Offering. In lieu of participating in the Offering, the Company and clirSPV LLC agreed that, following the initial closing of the Offering, clirSPV LLC may purchase from the Company, at the price sold to investors in the Offering, unregistered shares of its common stock in a number that will allow it to maintain its Percentage Ownership.
In September 2020, clirSPV LLC exercised this right and purchased 654,425 shares of our common stock at a price of $2.00 per share.
In determining the independence of our directors, we apply the definition of independent director provided under the listing rules of The Nasdaq Stock Market LLC (Nasdaq). Pursuant to these rules, the Board concluded its annual review of director independence in April 2021. After considering all relevant facts and circumstances, the Board affirmatively determined that all of the directors then serving on the Board are independent within the meaning of Nasdaq Listing Rule 5605(a)(2) and Rule 10A-3(b) promulgated under the Securities Exchange Act of 1934, as amended (the Exchange Act), with the exception of Robert T. Hoffman Sr. and Colin James Deller.
ITEM 14: PRINCIPAL ACCOUNTANT FEES AND SERVICES
### Pre-approved Services by the Companys Auditor
The Audit Committee has adopted a policy for pre-approval of audit and permitted non-audit services by the Companys external auditor. The Audit Committee approved the audit fees, audit-related fees, tax fees and all other fees described below and believes such fees are compatible with the independence of Gumbiner Savett Inc.
Audit Fees.
Audit Fees are the aggregate fees of Gumbiner Savett Inc. attributable to professional services rendered in 2020 and 2019 for the audit of our annual consolidated financial statements and for review of consolidated financial statements included in our quarterly reports on Form 10-Q and for services that are normally provided by Gumbiner Savett Inc. in connection with statutory and regulatory filings or engagements for those fiscal years.
### Tax Fees.
Tax Fees are the aggregate fees of Gumbiner Savett Inc. billed for professional services rendered to us for tax compliance, tax advice, and tax planning.
All Other Fees.
All Other Fees are the aggregate fees of Gumbiner Savett Inc. attributable to customary agreed upon professional services in connection with the filing of our Form S-3 in June 2019, filing of our prospectus supplement and the public offering completed in August 2020, filing of our prospectus supplement in connection with our At-The-Market agreement executed in December 2020, and review of our annual proxy statements.
The Audit Committee is required to review and approve in advance the retention of the independent registered public accounting firm for the performance of all audit and lawfully permitted non-audit services and the fees for such services. The required pre-approval policies and procedures were complied with during 2020 and 2019.
PART IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
To time, of the capital securities of James River Capital Trust IV+
4.15
Indenture, dated as of January10, 2008, among and Wilmington Trust Company, as Trustee relating to Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures Due 2038+
4.16
Amended and Restated Declaration of Trust, dated as of January10, 2008, by and among , as Sponsor, Wilmington Trust Company, as Institutional Trustee and Delaware Trustee and the Administrators (as defined therein) for the benefit of the holders, from time to time, of undivided beneficial interest in Franklin Holdings II (Bermuda) Capital Trust I+
4.17
Guarantee Agreement, dated as of January10, 2008, by and among , as Guarantor, and Wilmington Trust Company, as Guarantee Trustee, for the benefit of the holders, from time to time, of the capital securities of Franklin Holdings II (Bermuda) Capital Trust I+
4.18
Description of Registrant's Securities Registered under Section 12 of the Securities Exchange Act of 1934 (incorporated by reference to Exhibit 4.18 of the Annual Report on Form 10-K filed on February 27, 2020, Commission File No. 001-36777)
10.1
Second Amended and Restated Credit Agreement, dated as of November 8, 2019, by and among , JRG Reinsurance Company, Ltd., KeyBank National Association as Administrative Agent and Letter of Credit Issuer, KeyBank National Association, SunTrust Robinson Humphrey, Inc., and BMO Capital Markets Corp. as Joint Book Runners and Joint Lead Arrangers, Bank of Montreal and SunTrust Bank as Co-Syndication Agents, and the lender parties thereto (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed on November 12, 2019, Commission File No. 001-36777)
10.2
Continuing Guaranty of Payment, dated as of June5, 2013, by James River Group, Inc., as Guarantor, pursuant to Credit Agreement, dated as of June5, 2013, among and JRG Reinsurance Company Ltd., KeyBank National Association, as Administrative Agent and as Letter of Credit Issuer, and certain Lender parties (incorporated by reference to Exhibit 10.2 of the Registration Statement on Form S-1, Registration No.
10.3
Continuing Guaranty of Payment, dated as of December15, 2015, by James River Group Holdings UK Limited, pursuant to Credit Agreement, dated as of June5, 2013, among and JRG Reinsurance Company Ltd., KeyBank National Association, as Administrative Agent and as Letter of Credit Issuer, and certain Lender parties (incorporated by reference to Exhibit 10.5 to the Annual Report on Form 10-K filed on March10, 2016, Commission File No. 001-36777)
10.4
Credit Agreement, dated as of August 2, 2017, among , JRG Reinsurance Company Ltd. and BMO Harris Bank N.A. (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed on August 3, 2017, Commission File No. 001-36777)
10.5
First Amendment to Credit Agreement dated as of November 8, 2019 by and among and JRG Reinsurance Company Ltd., as the borrowers, and BMO Harris Bank, N.A., as the lender (incorporated by reference to Exhibit 10.2 of the Current Report on Form 8-K filed on November 12, 2019, Commission File No. 001-36777)
10.6
Pledge and Security Agreement, dated as of August 2, 2017, by and between JRG Reinsurance Company Ltd., and BMO Harris Bank N.A. (incorporated by reference to Exhibit 10.2 of the Current Report on Form 8-K filed on August 3, 2017, Commission File No. 001-36777)
10.7
Form of Director and Officer Indemnification Agreement (incorporated by reference to Exhibit 10.7 of Amendment No. 333-199958, filed with the Commission on November24, 2014)
10.8
Amended and Restated Equity Incentive Plan (incorporated by reference to Exhibit 10.8 of the Registration Statement on Form S-1, Registration No.
10.9
Form of Stock Option Agreement (Amended and Restated Equity Incentive Plan) (incorporated by reference to Exhibit 10.9 of the Registration Statement on Form S-1, Registration No.
10.10
First Amendment to the Amended and Restated Equity Incentive Plan (incorporated by reference to Exhibit 10.10 of Amendment No.
### Exhibit
Number
Description
10.11
2014 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.11 of Amendment No.
10.12
Amendment to the 2014 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed on May 3, 2017, Commission File No. 001-36777)*
10.13
Form of Nonqualified Share Option Agreement (2014 Long-Term Incentive Plan) (incorporated by reference to Exhibit 10.12 of Amendment No.
10.14
Form of Restricted Share Award Agreement (2014 Long-Term Incentive Plan) (incorporated by reference to Exhibit 10.13 of Amendment No.
10.15
Form of Restricted Share Unit Award Agreement (2014 Long-Term Incentive Plan) (incorporated by reference to Exhibit 10.14 of Amendment No.
10.16
2014 Non-Employee Director Incentive Plan (incorporated by reference to Exhibit 10.15 of Amendment No.
10.17
Amendment to the 2014 Non-Employee Director Incentive Plan (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed on May 1, 2019, Commission File No. 001-36777)*
10.18
Form of Restricted Share Award Agreement (2014 Non-Employee Director Incentive Plan) (incorporated by reference to Exhibit 10.16 of Amendment No.
10.19
Form of Restricted Share Unit Award Agreement (, 2014 Non-Employee Director Incentive Plan) (incorporated by reference to Exhibit 10.17 of Amendment No.
10.20
Leadership Recognition Program (incorporated by reference to Exhibit 10.18 of Amendment No.
10.21
Employment Agreement, dated October 28, 2020, by and among Frank N. DOrazio, , and its subsidiary, James River Group, Inc. (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on November 2, 2020, Commission File No. 001-36777) *
10.22
Separation and Release Agreement, dated November 2, 2020, by and among J. Adam Abram, , and its subsidiary, James River Group, Inc. (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed on November 2, 2020, Commission File No. 001-36777) *
10.23
Amended and Restated Employment Agreement, effective August 5, 2019, by and between and Robert P. Myron (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q filed on November 7, 2019)*
10.24
Employment Agreement, dated December19, 2016, by and among , James River Group, Inc., and Sarah C. Doran (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on December22, 2016, Commission File No.001-36777)*
10.25
Amendment to Employment Agreement dated December 19, 2016, between Sarah C. Doran and , and its subsidiary, James River Group, Inc. (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed on November 8, 2018, Commission File No. 001-36777)*
10.26
Amended and Restated Employment Agreement, dated January 15, 2018, by and among James River Group, Inc., certain subsidiaries of James River Group, Inc. and Richard Schmitzer (incorporated by reference to Exhibit 10.22 to Annual Report on Form 10-K filed on March 1, 2018, Commission File No. 001-36777)*
10.27
Leadership Recognition Program Award Letter, dated September30, 2011 to Richard Schmitzer (incorporated by reference to Exhibit 10.22 of Amendment No.
10.28
Employment Agreement, dated September 17, 2018, by and among James River Group, Inc., certain subsidiaries of James River Group, Inc. and Terry McCafferty, as supplemented by a letter agreement dated October 12, 2018 (incorporated by reference to Exhibit 10.30 to the Annual Report on Form 10-K filed on February 27, 2019, Commission File No. 001-36777)*
10.29
Employment Agreement, dated April 5, 2018, by and among JRG Reinsurance Company, Ltd. and Daniel Heinlein (incorporated by reference to Exhibit 10.31 to the Annual Report on Form 10-K filed on February 27, 2019, Commission File No. 001-36777)*
10.30
Registration Rights Agreement, dated as of December17, 2014, by and among (1) ; (2) (a) D. E. Shaw CH-SP Franklin, L.L.C., a Delaware limited liability company, D. E. Shaw CF-SP Franklin, L.L.C., a Delaware limited liability company, and D. E. Shaw Oculus Portfolios, L.L.C., a Delaware limited liability company; and (b) The Goldman Sachs Group, Inc., a Delaware corporation, and Goldman Sachs JRVR Investors Offshore, L.P., a Cayman Islands exempted limited partnership and (3) the persons identified as Management Investors on the signature pages thereto (incorporated by reference to Exhibit10.25 to the Annual Report on Form 10-K filed on March12, 2015, Commission File No.001-36777)
### Exhibit
Number
Description
21.1
List of subsidiaries of
23.1
31.1
31.2
31.3
31.4
32.1
Principal Executive Officer and Principal Financial Officer Certification pursuant to 18 U.S.C.
101.INS
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document in Exhibit 101.
*Denotes a management contract or compensatory plan or arrangement.
+Exhibit not filed with the Securities and Exchange Commission pursuant to Item 601(b)(4)(iii) of Regulation S-K. The Company will furnish a copy to the SEC upon request.<|endoftext|>Offering. The underwriter exercised its over-allotment option in full on October 29, 2020; thus, the
Founder Shares are no longer subject to forfeiture. As of December 31, 2020, there were
8,625,000 shares of Class B common stock outstanding.
Only holders of the Class B common stock will have the right to vote on the election of directors prior to the Business Combination. Holders of Class A common stock and holders of Class B common stock will vote together as a single class on all other matters submitted to a vote of the Companys stockholders, except as otherwise required by law.
The Class B common stock will automatically convert into Class A common stock at the time of the initial Business Combination on a one-for-one basis, subject to adjustment for stock splits, stock dividends, reorganizations, recapitalizations and the like, and subject to further adjustment as provided herein. In the case that additional shares of Class A common stock, or equity-linked securities, are issued or deemed issued in excess of the amounts offered in the Initial Public Offering and related to the closing of the initial Business Combination, including pursuant to a specified future issuance, the ratio at which shares of Class B common stock shall convert into shares of Class A common stock will be adjusted (unless the holders of a majority of the outstanding shares of Class B common stock agree to waive such adjustment with respect to any such issuance or deemed issuance, including a specified future issuance) so that the number of shares of Class A common stock issuable upon conversion of all shares of Class B common stock will equal, in the aggregate, on an as-converted basis, 20% of the sum of (i) the total number of all shares of common stock issued and outstanding upon the completion of the Initial Public Offering, plus (ii) the sum of the total number of shares of common stock issued or deemed issued or issuable upon conversion or exercise of any equity-linked securities or deemed issued by the company in connection with or in relation to the completion of the initial Business Combination (excluding (1) any shares or equity-linked securities issued, or to be issued, to any seller in the initial Business Combination, and (2) any private placement warrants issued to the Sponsor or any of its affiliates upon conversion of any Working Capital Loans), minus (b) the number of Public Shares redeemed by Public Stockholders in connection with the initial Business Combination. Holders of Founder Shares may also elect to convert their shares of Class B common stock into an equal number of shares of Class A common stock, subject to adjustment as provided above, at any time.
### Preferred Stock
1,000,000 shares of preferred stock, par value $0.0001 per share, with such designations, voting and other rights and preferences as may be determined from time to time by the Companys board of directors.
The following table presents information about the Companys assets and liabilities that are measured at fair value on a recurring basis as of December31, 2020 and indicates the fair value hierarchy of the valuation techniques that the Company utilized to determine such fair value.
### F-21
The estimated fair value of the Public Warrants transferred from a Level 3 measurement to a Level 1 fair value measurement in December 2020, when the Public Warrants were separately listed and traded.
Level 1 instruments include investments in mutual funds invested in government securities and Public Warrants.
The fair value of the Public Warrants issued in connection with the Public Offering and Private Placement Warrants were initially measured at fair value using a Monte Carlo simulation model and subsequently through September 30, 2020. For the period ended December 31, 2020, the Company recognized a charge to the statement of operations resulting from an increase in the fair value of liabilities of approximately $15.5 million presented as change in fair value of derivative warrant liabilities on the accompanying statement of operations.
The estimated fair value of the Public Warrants prior to being separately listed and traded, and the Private Placement Warrants were determined using Level 3 inputs. Inherent in a Monte Carlo simulation are assumptions related to expected share-price volatility, expected life, risk-free interest rate and dividend yield. The Company estimates the volatility of its ordinary shares warrants based on implied volatility from the Companys traded warrants and from historical volatility of select peer companys ordinary shares that matches the expected remaining life of the warrants.
The following table provides quantitative information regarding Level 3 fair value measurements inputs at the initial measurement date:
The change in the fair value of the derivative warrant liabilities for the period from September 1, 2020 (inception) through December 31, 2020 is summarized as follows:
### F-22
Note 10Income Taxes
The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which temporary differences representing net future dedu ctible amounts become deductible. For the period from September 1, 2020 (date of inception) to December 31, 2020, the valuation allowance was $
### As of December 31, 2020, the Company has $
59,971 of U.S.
### F-23
Note
### Subsequent Events
Management has evaluated subsequent events to determine if events or transactions occurring through the date the financial statements were available for issuance, require potential adjustment to or disclosure in the financial statements and has concluded that all such events that would require recognition or disclosure have been recognized or disclosed.
F-24
### EXHIBIT INDEX
ExhibitNo.
Description
3.1
Second Amended and Restated Certificate of Incorporation, dated October 26, 2020.
(1)
3.2
Bylaws.
(2)
4.1
Specimen Unit Certificate.
(2)
4.2
(2)
4.3
Specimen Warrant Certificate.
(2)
4.4
Warrant Agreement, dated October 26, 2020, between the Company and Continental Stock Transfer & Trust Company, as warrant agent.
(1)
4.5
Description of registered securities.
(3)
10.1
Promissory Note issued in favor of Lux Encore Sponsor, LP, dated September 4, 2020.
(2)
10.2
Letter Agreement, dated October 26, 2020, between the Company and the Sponsor.
(1)
10.3
Letter Agreement, dated October 26, 2020, between the Company and each of its officers and directors.
(1)
10.4
Investment Management Trust Agreement, dated October 26, 2020, between the Company and Continental Stock Transfer & Trust Company, as trustee.
(1)
10.5
Registration Rights Agreement, dated October 26, 2020, among the Company and certain security holders named therein.
(1)
10.6
Indemnity Agreement, dated October 26, 2020, between the Company and Josh DeFonzo.
(1)
10.7
Indemnity Agreement, dated October 26, 2020, between the Company and Peter Hbert.
(1)
10.8
Indemnity Agreement, dated October 26, 2020, between the Company and Segolene Scarborough.
(1)
10.9
Bijan Salehizadeh.
(1)
10.10
Indemnity Agreement, dated October 26, 2020, between the Company and Senator Joseph Robert Bob Kerrey.
(1)
10.11
Fred Moll.
(1)
10.12
Securities Subscription Agreement, dated September 4, 2020, between and Lux Encore Sponsor, LP.
(2)
10.13
Sponsor Warrants Purchase Agreement, dated October 23, 2020, between the Company and the Sponsor.
(1)
10.14
Forward Purchase Agreement, dated October 22, 2020, among the Company, Lux Ventures VI, L.P.
(
)
31.1
Certification of the Principal Executive Officer and Principal Financial Officer required by Rule 13a-14(a) or Rule 15d-14(a).*
32.1
Certification of the Principal Executive Officer and Principal Financial Officer required by Rule 13a-14(b) or Rule 15d-14(b) and 18 U.S.C. 1350**
101.INS
XBRL Instance Document*
101.SCH
XBRL Taxonomy Extension Schema*
101.CAL
XBRL Taxonomy Calculation Linkbase*
101.LAB
XBRL Taxonomy Label Linkbase*
101.PRE
XBRL Taxonomy Extension Presentation*
101.DEF
XBRL Definition Linkbase Document*
*
Filed herewith
**
Furnished herewith
(1)
Incorporated by reference to the Companys Form 8-K, filed with the SEC on October 30, 2020.
(2)
Incorporated by reference to the Companys Form S-1, initially filed with the SEC on October 22, 2020.
(3)
Incorporated by reference to the registrants Annual Report on Form 10-K, filed with the SEC on March 19, 2021.
Item16.
### Form
10-K Summary
None.
SIGNA
### TURES
Pursuant to the requirements of Section13 or 15(d) of the Securities Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
June 7, 2021
By:
/s/ Josh DeFonzo
### Name:
Josh DeFonzo
Title:
###
Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
### Name
Position
Date
/s/ Josh DeFonzo
###
June 7, 2021
Josh DeFonzo
/s/ Segolene Scarborough
###
June 7, 2021
Segolene Scarborough
/s/ Peter Hbert
June 7, 2021
Peter Hbert
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
For the stock was not available, the closest available date where a public market price was available for such stock was used instead.
The following table provides quantitative information regarding fair value assumptions for the Public Warrants (fair values, and related inputs and assumptions, of Private Placement Warrants and Public Warrants were materially consistent between July 30, 2019 (IPO Closing Date) and September 6, 2019 (Overallotment Option exercise date by investors):
The following table provides quantitative information regarding fair value assumptions for the Public Warrants:
The following table provides quantitative information regarding fair value assumptions for the Private Placement Warrants:
The change in the fair value of the warrant liabilities is summarized as follows:
Transfers to/from Levels 1 and 3 are recognized at the end of the reporting period. The estimated fair value of the Public Warrants transferred from a Level 3 measurement to a Level 1 fair value measurement at December 31, 2019.
### Note 9Income Taxes
For the year ended December31, 2020, the valuation allowance was approximately $827,000.
A reconciliation of the statutory federal income tax rate to the Companys effective tax rate is as follows (as restated):
During the year ended December31, 2020, approximately $202,000 of income tax expense was recognized.
### Note 10Subsequent Events
Management has evaluated subsequent events to determine if events or transactions occurring through the date the consolidated financial statements were available for issuance require potential adjustment to or disclosure in the consolidated financial statements and has concluded that all such events that would require recognition or disclosure have been recognized or disclosed.
On February 26, 2021 (the Closing Date), the Company consummated a business combination (the Closing) with ChargePoint, Inc. (ChargePoint), where Merger Sub merged with the ChargePoint (the Merger and, collectively with the other transactions related thereto, the Business Combination), with ChargePoint surviving the Merger as a wholly-owned subsidiary of the Company. As a result of the proposed business combination, the Company was renamed to ChargePoint Holdings, Inc. (New ChargePoint).
Pursuant to the terms of the business combination agreement, each stockholder of ChargePoint received 0.9966 shares of New ChargePoints common stock and the contingent right to receive up to 27 million additional shares of New ChargePoints common stock (Earnout Shares), for each share of ChargePoints common stock, par value $0.0001 per share, owned by such stockholder that was outstanding immediately prior to the Closing (other than any shares of ChargePoints restricted stock). In addition, certain investors purchased an aggregate of 22,500,000 shares of New ChargePoints common stock (such investors, the PIPE Investors) concurrently with the Closing for an aggregate purchase price of $225 million.
Pursuant to a letter agreement (the Founders Stock Letter) entered into in connection with the execution of the business combination, immediately prior to the Closing, the initial stockholders (i) surrendered to New ChargePoint, for no consideration and as a capital contribution to New ChargePoint, 984,706 Class B common stock, par value $0.0001 per share (Founder Shares), held by them (on a pro rata basis), whereupon such shares were immediately canceled, and (ii) subjected 900,000 Founder Shares (including New ChargePoints common stock issued in exchange therefor in the Merger) held by them to potential forfeiture in accordance with the terms of the Founders Stock Letter. Upon the Closing, all outstanding Founder Shares converted into Common Stock on a one-for-one basis and the Founder Shares ceased to exist.
Also at the Closing, the Sponsor exercised its right to convert a portion of the working capital loans made by the Sponsor to Switchback into an additional 1,000,000 private placement warrants at a price of $1.50 per warrant in satisfaction of $1.5 million principal amount of such loans.
In addition, pursuant to the terms of the business combination agreement, (1) warrants to purchase shares of capital stock of ChargePoint were converted into warrants to purchase an aggregate of 38,761,031 shares of New ChargePoints common stock and the contingent right to receive certain Earnout Shares, (2) options to purchase shares of common stock of ChargePoint were converted into options to purchase an aggregate of 30,135,695 shares of New ChargePoints common stock and, with respect to vested options, the contingent right to receive certain Earnout Shares and (3) unvested restricted shares of common stock of ChargePoint that were outstanding pursuant to the early exercise of New ChargePoint options were converted into an aggregate of 345,689 restricted shares of New ChargePoint.
### PART IV
Item15.
(a)
The following documents are filed as part of this Annual Report on Form
10-K:
Financial Statements: See Index to Financial Statements at Item 8. Financial Statements and Supplementary Data herein.
(b)
Exhibits: The exhibits listed in the accompanying index to exhibits are filed or incorporated by reference as part of this Annual Report on Form
10-K.
ExhibitNo.
Description
2.1
Business Combination Agreement and Plan of Reorganization, dated as of September 23, 2020, by and among Switchback Energy Acquisition Corporation, Lightning Merger Sub Inc. and ChargePoint, Inc. (incorporated by reference to Exhibit 2.1 to the Companys Current Report on Form
8-K
(File
3.1
Amended and Restated Certificate of Incorporation of (incorporated by reference to Exhibit 3.1 to the Companys Current Report on Form
8-K
(File
3.2
Bylaws of (incorporated by reference to Exhibit 3.3 to the Companys Registration Statement on Form
S-1
(File
4.1
Specimen Unit Certificate (incorporated by reference to Exhibit 4.1 to the Companys Registration Statement on Form
S-1
(File
4.2
Specimen Class A Common Stock Certificate (incorporated by reference to Exhibit 4.2 to the Companys Registration Statement on Form
S-1
(File
No.
4.3
Specimen Warrant Certificate (incorporated by reference to Exhibit 4.3 to the Companys Registration Statement on Form
S-1
(File
4.4
Warrant Agreement, dated July 25, 2019, between and Continental Stock Transfer& Trust Company, as warrant agent (incorporated by reference to Exhibit 4.4 to the Companys Current Report on Form
8-K
(File
4.5
Description of Securities of (incorporated by reference to Exhibit 4.5 to the Companys Annual Report on Form
10-K
(File
No.001-39004) filed with the SEC on March30, 2020)
10.1
Letter Agreement, dated July 25, 2019, among Switchback Energy Acquisition Corporation, its officers and directors and NGP Switchback, LLC (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form
8-K
(File
10.2
Investment Management Trust Agreement, dated July 25, 2019, between and Continental Stock Transfer & Trust Company, as trustee (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form
8-K
(File
No. 001-39004) filed with the SEC on July30, 2019)
10.3
Registration Rights Agreement, dated July 25, 2019, among Switchback Energy Acquisition Corporation, NGP Switchback, LLC and certain other security holders named therein (incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form
8-K
(File
### IV-1
ExhibitNo.
Description
10.4
Administrative Services Agreement, dated July 25, 2019, between and NGP Switchback, LLC (incorporated by reference to Exhibit 10.4 to the Companys Current Report on Form
8-K
(File
10.5
Promissory Note, dated May 16, 2019, issued to NGP Switchback, LLC (incorporated by reference to Exhibit 10.1 to the Companys Registration Statement on Form
S-1
(File
No.
10.7
Form of Indemnification Agreement (incorporated by reference to Exhibit 10.7 to the Companys Registration Statement on Form
S-1
(File
10.8
Securities Purchase Agreement, dated May 16, 2019, between and NGP Switchback, LLC (incorporated by reference to Exhibit 10.5 to the Companys Registration Statement on Form
S-1
(File
10.9
Private Placement Warrants Purchase Agreement, dated July 25, 2019, between and NGP Switchback, LLC (incorporated by reference to Exhibit 10.5 to the Companys Current Report on Form
8-K
(File
10.10
### Form of
Lock-Up
Agreement (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form
8-K
(File
10.11
Form of Subscription Agreement (incorporated by reference to Exhibit 10.3 of Switchbacks Current Report on Form
8-K
(File
10.12
Founders Stock Letter, dated September 23, 2020 by and between and the initial stockholders (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form
8-K
(File
Power of Attorney (included on signature page of the Original Report)
31.1
13a-14(a) or Rule
15d-14(a)*
31.2
Certification of the Chief Financial Officer required by Rule 13a-14(a) or Rule 15d-14(a)*
32.1
13a-14(b) or Rule
15d-14(b) and 18 U.S.C. 1350**
32.2
1350**
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
*
Filed herewith
**
Furnished herewith
IV-2<|endoftext|>Beneficially own 193,039 ClassA Ordinary Shares. Mr.Griffin beneficially owns 2,810,271 ClassA Ordinary Shares. The address of each of their principal business office is 131 S.
(13)
Each of Baupost Group, L.L.C. (Baupost), Baupost Group GP, L.L.C. (BG GP) and Seth A. Klarman beneficially own 4,000,000 ClassA Ordinary Shares. Securities reported on Schedule 13G as being beneficially owned by Baupost were purchased on behalf of certain of such partnerships. BG GP, as the Manager of Baupost, and Seth A. Klarman, as the Managing Member of BG GP and a controlling person of Baupost. The address of each of their principal business office is 10 St. James Avenue, Suite 1700 Boston, Massachusetts 02116.
(14)
Represents 100,000 ClassA Ordinary Shares held by (i)Vellar Opportunities Fund Master, Ltd.; (ii) Cohen& Company Financial Management, LLC; (iii)Dekania Investors, LLC; (iv)Cohen& Company LLC; (iv)Cohen& Company Inc.; and (v)Daniel G. Cohen. Mr.Cohen may be considered a control person for Cohen& Company Financial Management, LLC and Cohen& Company Inc. The address of the principal business office of Vellar Opportunities Fund Offshore, Ltd. is c/o Mourant Governance Services (Cayman) Limited, 94 Solaris Avenue, Camana Bay, PO Box 1348, Grand Cayman
### KY1-1108,
Cayman Islands. The address of the principal business office of the other reporting entities / persons is 3 Columbus Circle, Suite 2400, New York, New York 10019, United States.
Our initial shareholders beneficially own 20% of the then-issued and outstanding ordinary shares. Because of this ownership block, our Sponsor may be able to effectively influence the outcome of all matters requiring approval by our shareholders, including appointment of our directors, amendments to our amended and restated memorandum and articles of association and approval of significant corporate transactions including our initial business combination.
Our initial shareholders have agreed (a)to vote any founder shares and public shares held by them in favor of any proposed business combination and (b)not to redeem any founder shares or public shares held by them in connection with a shareholder vote to approve a proposed initial business combination.
The founder shares, private placement warrants and any ClassA ordinary shares issued upon conversion or exercise thereof are each subject to transfer restrictions pursuant tolock-upprovisions in the agreement entered into by our Sponsor and management team. Our Sponsor and each member of our management team have agreed not to transfer, assign or sell any of their founder shares until the earliest of (a)one year after the completion of our initial business combination and (b)subsequent to our initial business combination, (x)if the closing price of our ClassA ordinary shares equals or exceeds $12.00 per share (as adjusted for share subdivisions, share capitalizations, reorganizations, recapitalizations and the like) for any20-tradingdays within any30-tradingday period commencing at least 150 days after our initial business combination or (y)the date on which we complete a liquidation, merger, share exchange or other similar transaction that results in all of our public shareholders having the right to exchange their ClassA ordinary shares for cash, securities or other property. The private placement warrants and the respective ClassA ordinary shares underlying such warrants are not transferable or salable until 30 days after the completion of our initial business combination. provided
Item13.
### Founder Shares
On July25, 2020, the Sponsor paid $25,000 to cover certain offering costs of the Company in consideration of 14,375,000 ClassB ordinary shares, par value $0.0001. On October1, 2020 the Company effected a share capitalization resulting in 17,250,000 ClassB ordinary shares issued and outstanding (the Founder Shares). All share and per-share amounts have been retroactively restated to reflect the share capitalization. The Founder Shares include up to 2,250,000 shares that are subject to forfeiture to the extent that the underwriters over-allotment option is not exercised in full or in part, so that the number of Founder Shares will equal, on an as-converted basis, 20% of the Companys issued and outstanding shares after the Initial Public Offering. On November20, 2020, the underwriters election to exercise their over-allotment option expired unexercised, resulting in the forfeiture of 2,250,000 Founder Shares. Accordingly, as of December31, 2020, there are 15,000,000 Founder Shares issued and outstanding.
The initial shareholders have agreed, subject to limited exceptions, not to transfer, assign or sell their Founder Shares until the earlier of (i)one year after the completion of the Companys Business Combination and (ii)subsequent to a Business Combination, (x)if the closing price of the Companys ClassA ordinary shares equals or exceeds $12.00 per share (as adjusted for share subdivisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any
30-trading day period commencing at least 150 days after the Companys Business Combination or (y)the date on which the Company completes a liquidation, merger, share exchange or other similar transaction that results in all of the Companys Public Shareholders having the right to exchange their ClassA ordinary shares for cash, securities or other property.
### Private Placement
Simultaneously with the closing of the Initial Public Offering, the Sponsor purchased 14,000,000 Private Placement Warrants at a price of$1.00 per Private Placement Warrant, for an aggregate purchase price of$14,000,000. Each Private Placement Warrant is exercisable to purchase one ClassA ordinary share at a price of$11.50 per share, subject to adjustment. If the Company does not complete a Business Combination within the Combination Period, the proceeds of the sale of the Private Placement Warrants will be used to fund the redemption of the Public Shares (subject to the requirements of applicable law), and the Private Placement Warrants and all underlying securities will expire worthless.
Advance from Related Party
During October 2020, the Sponsor advanced $957,468 to the Company in order to fund the Companys ongoing working capital needs. The advances were non-interest bearing and due on demand. Advances amounting to $957,468 were repaid on October16, 2020.
### Promissory NoteRelated Party
On July25, 2020, the Company issued an unsecured promissory note (the Promissory Note) to the Sponsor, pursuant to which the Company could borrow up to an aggregate principal amount of$300,000. The Promissory Note was non-interest bearing and payable on the earlier of December31, 2020 and the completion of the Initial Public Offering. The outstanding borrowings of $300,000 under the Promissory Note was repaid on October16, 2020.
### Related Party Loans
In order to finance transaction costs in connection with a Business Combination, the Sponsor or an affiliate of the Sponsor, or certain of the Companys officers and directors may, but are not obligated to, loan the Company funds as may be required (the Working Capital Loans). If the Company completes a Business Combination, the Company may repay the Working Capital Loans out of the proceeds of the Trust Account released to the Company. Otherwise, the Working Capital Loans may be repaid only out of funds held outside the Trust Account. The Working Capital Loans would either be repaid upon consummation of a Business Combination or, at the lenders discretion, up to $1,500,000 of such Working Capital Loans may be convertible into warrants of the post-Business Combination entity at a price of $1.00 per warrant. As of December31, 2020, the Company had no outstanding borrowings under the Working Capital Loans.
Policy for Approval of Related Party Transactions
The audit committee of our board of directors will adopt a charter, providing for the review, approval and/or ratification of related party transactions, which are those transactions required to be disclosed pursuant to Item 404 of
### Director Independence
Item14.
### Audit Fees
During the period from July24, 2020 (inception) through December31, 2020, fees for our independent registered public accounting firm were approximately $70,930 for the services Withum performed in connection with our Initial Public Offering and the audit of our December31, 2020 financial statements included in this Annual Report on Form
10-K/A.
### Audit-Related Fees.
During the period from July24, 2020 (inception) through December31, 2020, our independent registered public accounting firm did not render assurance and related services related to the performance of the audit or review of financial statements.
Tax Fees
During the period from July24, 2020 (inception) through December31, 2020, fees for our independent registered public accounting firm were approximately $3,500 for the services Withum performed in connection with our tax compliance, tax advice and tax planning.
### All Other Fees
During the period from July24, 2020 (inception) through December31, 2020, there were no fees billed for products and services provided by our independent registered public accounting firm other than those set forth above.
Pre-Approval
### Policy
### PART IV
Item15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Private Placement Warrants are held by holders other than their initial purchasers or their permitted transferees, the Private Placement Warrants will be redeemable by us and exercisable by the holders on the same basis as the warrants included in the units sold in our Initial Public Offering.
In addition, in connection with the execution of the Merger Agreement, we entered into the HEC Forward Purchase Agreement with HEC Fund. Pursuant to the HEC Forward Purchase Agreement, HEC Fund agreed to purchase 2,500,000 Forward Purchase Units (each Forward Purchase Unit consisting of one forward purchase share and one forward purchase warrant), for $10.00 per unit, or an aggregate amount of $25,000,000, in a private placement that will close concurrently with the closing of the Proposed Business Combination. The forward purchase shares will be identical to the shares of ClassA common stock included in the units sold in our Initial Public Offering, except that they will be subject to transfer restrictions and will be provided registration rights. The forward purchase warrants will have the same terms as the Private Placement Warrants issued to the sponsor in connection with our Initial Public Offering so long as they are held by HEC Fund or its permitted assignees and transferees.
See Item 13.
### Item13.
In February 2020, our sponsor purchased an aggregate of 8,625,000 shares of our ClassB common stock for an aggregate purchase price of $25,000, or approximately $0.0029 per share. On June8, 2020, we effected a 1:1.2 stock split of our ClassB common stock, resulting in an aggregate of 10,350,000 founder shares issued and outstanding, of which 10,300,000 founder shares are held by our sponsor and 50,000 founder shares are held by our directors. The number of founder shares issued was based on the expectation that the founder shares would represent 20% of the outstanding shares of common stock upon completion of our Initial Public Offering.
Our sponsor also purchased an aggregate of 10,280,000 Private Placement Warrants for a purchase price of $1.00 per warrant in a private placement that occurred simultaneously with the closing of our Initial Public Offering. As such, our sponsors interest in our Initial Public Offering was valued at $10,280,000, based on the number of Private Placement Warrants purchased. Each Private Placement Warrants entitles the holder thereof to purchase one share of our ClassA common stock at a price of $11.50 per share, subject to adjustment.
Our sponsor loaned us an aggregate of $300,000 to cover expenses related to our Initial Public Offering pursuant to a promissory note (the Promissory Note). The Promissory Note was non-interest bearing, unsecured and payable on the earlier of December31, 2020 or the consummation of the Initial Public Offering. The outstanding balance under the Promissory Note was repaid on June12, 2020.
We entered into a forward purchase agreement with HEC Fund pursuant to which HEC Fund had committed to purchase from us up to 5,000,000 Forward Purchase Units, consisting of one share of our post-business combination entitys common stock and one-half of one warrant to purchase one share of our post-business combination entitys common stock for $10.00 per unit, or an aggregate amount of up to $50,000,000, in a private placement that will close concurrently with the closing of a business combination. In connection with the execution of the Merger Agreement, we entered into the HEC Forward Purchase Agreement between us and HEC Fund, which amended the forward purchase agreement entered into in connection with our Initial Public Offering. Pursuant to the HEC Forward Purchase Agreement HEC Fund agreed to purchase 2,500,000 Forward Purchase Units, for $10.00 per unit, for an aggregate purchase price of $25,000,000, in a private placement that will close concurrently with the closing of the Proposed Business Combination.
Each of the insiders has an indirect economic interest in the founder shares and private placement warrants purchased by our sponsor as a result of his or her membership interest in our sponsor. In addition, Douglas Braunstein and Douglas Bergeron may be deemed to have an indirect economic interest in the founder shares and private placement warrants purchased by our sponsor as a result of HEC Fund, having membership interests in our sponsor, and their respective affiliation with such entities.
We entered into an administrative services agreement pursuant to which we pay an affiliate of our sponsor a total of $10,000 per month for office space and administrative and support services.
In addition, in order to fund working capital deficiencies or finance transaction costs in connection with our initial business combination, our sponsor or an affiliate of our sponsor or certain of our officers and directors may, but are not obligated to, loan us funds as may be required.
Our sponsor, officers and directors or any of their respective affiliates will be reimbursed for any out-of-pocket expenses incurred in connection with activities on our behalf such as paying for office space, secretarial and administrative services, identifying potential target businesses and performing due diligence on suitable business combinations. Our audit committee reviews on a quarterly basis all payments that were made by us to our sponsor, officers, directors or its or any of their respective affiliates and determines which expenses and the amount of expenses that will be reimbursed.
In connection with the execution of the Merger Agreement, we, the insiders and Talkspace entered into the Sponsor Support Agreement pursuant to which the insiders agreed to, among other things, vote to adopt and approve the Merger Agreement and the Transactions, in each case, subject to the terms and conditions of the Sponsor Support Agreement.
Concurrently with the closing of our Initial Public Offering, we entered into a registration rights agreement pursuant to which the holders of the founder shares, the Private Placement Warrants, the forward purchase warrants purchased in connection with our Initial Public Offering and warrants that may be issued upon conversion of any working capital loans (and any ClassA common stock issuable upon the exercise of such Private Placement Warrants, forward purchase warrants and warrants issued upon conversion of any such working capital loans and upon conversion of the founder shares) are entitled to registration rights, requiring us to register such securities for resale (in the case of the founder shares, only after conversion to shares of ClassA common stock). The holders of these securities are entitled to make up to three demands, excluding short form registration demands, that we register such securities.
At the closing of the Proposed Business Combination, we, our sponsor, Talkspaces independent directors, certain former stockholders of Talkspace and certain other parties thereto will enter into an Amended and Restated Registration Rights Agreement, pursuant to which we will agree to register for resale, pursuant to Rule415 under the Securities Act, certain shares of Talkspace, Inc. common stock and other equity securities of the Company that are held by the parties thereto from time to time.
For additional information regarding transactions entered into in connection with the Proposed Business Combination, see Item 1BusinessRecent Developments.
### Related Party Policy
We had not yet adopted a formal policy for the review, approval or ratification of related party transactions as of the completion of our Initial Public Offering.
### Director Independence
The rules of the Nasdaq require that a majority of our Board of Directors be independent within one year of our Initial Public Offering. An independent director is defined generally as a person other than an executive officer or employee of the Company or its subsidiaries or any other individual having a relationship, which in the opinion of the Board of Directors, would interfere with the directors exercise of independent judgment in carrying out the responsibilities of a director. Our Board of Directors has determined that each of Mr.Greifeld, Ms.Schulman and Ms.Duggin is an independent director under applicable SEC and Nasdaq rules.
Item14.
Audit Fees
For the period from February6, 2020 (inception) through December31, 2020, fees for our independent registered public accounting firm were approximately $119,500, for the services Withum performed in connection with our Initial Public Offering and the audit of our December31, 2020 financial statements included
10-K.
### Audit-Related Fees.
For the period from February6, 2020 (inception) through December31, 2020, our independent registered public accounting firm did not render assurance and related services related to the performance of the audit or review of financial statements.
Tax Fees
For the period from February6, 2020 (inception) through December31, 2020, our independent registered public accounting firm did not render services to us for tax compliance, tax advice and tax planning.
### All Other Fees
For the period from February6, 2020 (inception) through December31, 2020, there were no fees billed for products and services provided by our independent registered public accounting firm other than those set forth above.
Pre-Approval
### Policy
### PART IV
Item15.<|endoftext|>With the SEC Staff Statement, which control will be executed at each reporting date. This new control has been and will be executed by individuals with sufficient experience and training.
Other than the item discussed above, there were no significant changes in our internal control over financial reporting during the most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B.
### Other Information
None
PART III
### Item 10.
We have adopted a Code of Business Conduct applicable to all of our directors, officers and employees. A copy of the Code of Business Conduct is available on our corporate website at www.lazydays.com by clicking on the link Investor Relations on our homepage and then clicking on the link Governance and then clicking on the link Code of Business Conduct under Governance Documents. You also may obtain a printed copy of the Code of Business Conduct by sending a written request to: Investor Relations, Lazydays Holdings, Inc., 6130 Lazy Days Boulevard, Seffner, Florida 33584. In addition, the Code of Business Conduct is available in print to any stockholder who requests it by contacting Investor Relations at [email protected] or 855-629-3995. In the event that we amend or waive any of the provisions of the Code of Business Conduct that relate to any element of the code of ethics definition enumerated in Item 406(b) of Regulation S-K, we intend to disclose the same on our Investor Relations website.
The other information required by this item will be contained in, and is incorporated by reference from, the proxy statement for our 2021 annual meeting of stockholders, which will be filed with the SEC pursuant to Regulation 14A within 120 days after the end of the year covered by this report.
Item 11.
### Executive Compensation
Item 12.
### Item 13.
Item 14.
PART IV
Item 15.
Exhibit
Number
Description
2.1
Agreement and Plan of Merger, dated as of October 27, 2017, by and among Andina Acquisition Corp. II, Andina II Holdco Corp., Andina II Merger Sub Inc., Lazy Days R.V. Center, Inc. and A. Lorne Weil (included as Annex A to the Proxy Statement/Prospectus/Information Statement and incorporated herein by reference).
3.1
Form of Amended and Restated Certificate of Incorporation of Lazydays Holdings, Inc.
3.2
Form of Bylaws of Lazydays Holdings, Inc.
3.3
Certificate of Designations of Series A Preferred Stock of Lazydays Holdings, Inc. (included as Annex D to the Proxy Statement/Prospectus/Information Statement and incorporated herein by reference).
4.1
Specimen Common Stock Certificate of Lazydays Holdings, Inc. (filed as Exhibit 4.5 to the Registration Statement on Form S-4 (SEC File No.
4.2
Form of Unit Purchase Option (incorporated by reference to Exhibit 4.5 of Andinas Form S-1/A filed on November 6, 2015).
4.3
Warrant Agreement between Continental Stock Transfer & Trust Company and Andina (incorporated by reference to Exhibit 4.7 of Andinas Form S-1/A filed on November 6, 2015).
4.4
Form of Specimen Series A Preferred Stock Certificate (filed as Exhibit 4.4 to the Registration Statement on Form S-1 (SEC File No.
4.5
Form of Common Stock purchase warrant (filed as Exhibit 4.5 to the Registration Statement on Form S-1 (SEC File No.
4.6
Form of Pre-Funded Common Stock Purchase warrant (filed as Exhibit 4.6 to the Registration Statement on Form S-1 (SEC File No.
4.7
10.1
Registration Rights Agreement between Andina and certain security holders of Andina (incorporated by reference to Exhibit 10.1 of Andinas Current Report on Form 8-K filed on December 1, 2015).
10.2
2018 Long-Term Incentive Plan+ (included as Annex C to the Proxy Statement/Prospectus/Information Statement and incorporated herein by reference).
10.3
Employment Agreement between Lazydays Holdings, Inc. and William Murnane+ (filed as Exhibit 10.11 to the Registration Statement on Form S-4 (SEC File No.
10.5.1
Form of Securities Purchase Agreement (Preferred) (filed as Exhibit 10.13.1 to the Registration Statement on Form S-4 (SEC File No.
### Exhibit
Number
Description
10.5.2
Form of Securities Purchase Agreement (Unit) (filed as Exhibit 10.13.2 to the Registration Statement on Form S-4 (SEC File No.
10.6
Lease Agreement by and between Cars MTI-4 L.P., as Landlord, and LDRV Holdings Corp., as Tenant (filed as Exhibit 10.14 to the Registration Statement on Form S-4 (SEC File No.
10.7
Lease Agreement between Chambers 3640, LLC, as Landlord, and Lazydays Mile HI RV, LLC, as Tenant (filed as Exhibit 10.15 to the Registration Statement on Form S-4 (SEC File No.
10.8
Lease Agreement between 6701 Marketplace Drive, LLC, as Landlord, and Lazydays RV America, LLC, as Tenant (filed as Exhibit 10.16 to the Registration Statement on Form S-4 (SEC File No.
10.9
Lease Agreement between DS Real Estate, LLC, as Landlord, and Lazydays RV Discount, LLC, as Tenant (filed as Exhibit 10.17 to the Registration Statement on Form S-4 (SEC File No.
10.10
Credit Agreement, dated March 15, 2018, among LDRV Holdings Corp., Lazydays RV America, LLC, Lazydays RV Discount, LLC and Lazydays Mile HI RV, LLC, and various other affiliated entities thereafter parties thereto, as Borrowers, Manufacturers and Traders Trust Company, as Administrative Agent, Swingline Lender, Issuing Bank and Lender, and various other financial institutions who may become lender parties thereto (filed as Exhibit 10.10 to the Form 8-K filed on March 21, 2018).
10.11
Security Agreement, dated March 15, 2018, by and between LDRV Holdings Corp., Lazydays RV America, LLC, Lazydays RV Discount, LLC, and Lazydays Mile HI RV, LLC, as Borrowers, Lazydays Holdings Inc., Lazy Days R.V. Center, Inc., Lazydays RV America, LLC, and Lazydays Land Holdings, LLC, as Guarantors, and Manufacturers and Traders Trust Company, as administrative agent under the Credit Agreement of even date therewith (filed as Exhibit 10.11 to the Form 8-K filed on March 21, 2018).
10.12
Guaranty Agreement, dated March 15, 2018, by certain parties named therein (filed as Exhibit 10.12 to the Form 8-K filed on March 21, 2018).
10.13
and the PIPE investors (filed as Exhibit 10.13 to the Registration Statement on Form S-1 (SEC File No.
10.14
and the PIPE investors (filed as Exhibit 10.14 to the Registration Statement on Form S-1 (SEC File No.
10.15
Employment Offer Letter between Lazydays Holdings, Inc. and Nicholas Tomashot+ (filed as Exhibit 10.15 to Amendment No. 2 to the Registration Statement on Form S-1 (SEC File No. 333-224063) filed with the SEC on May 22, 2018 and incorporated herein by reference).
10.16
Second Amendment to Credit Agreement, dated as of December 6, 2018, by and among the Borrowers named therein, the Guarantors named therein and Manufacturers and Traders Trust Company (filed as Exhibit 10.1 to Current Report on Form 8-K filed with the SEC on December 12, 2018 and incorporated herein by reference).
10.17
Lazydays Holdings, Inc. (filed as Exhibit 10.1 to the Form 8-K filed on May 23, 2019)
10.18
Lazydays Holdings, Inc. Amended and Restated 2018 Long Term Incentive Plan (filed as exhibit 10.2 to the Form 8-K filed on May 23, 2019)
10.19
Third Amendment and Joinder to Credit Agreement, dated as of March 6, 2020, by and among the Existing Borrowers named therein, Lone Star Acquisition LLC, authorized to conduct business in the State of Texas as Lone Star Land of Houston, LLC, Lone Star Diversified, LLC, the Guarantors named therein, Manufacturers and Traders Trust Company and the lenders party to the credit agreement (filed as Exhibit 10.19 to Annual Report on Form 10-K for the year ended December 31, 2019, and incorporated herein by reference)
10.20
Fourth Amendment and Joinder to Credit Agreement, dated as of April 16, 2020, by and among the Borrowers named therein, the Guarantors named therein, Manufacturers and Traders Trust Company and the lenders party to the credit agreement (filed as Exhibit 10.2 to Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, and incorporated herein by reference)
10.21
Form of Term Note (U.S. Small Business Administration Paycheck Protection Program) in favor of M&T Bank (filed as Exhibit 10.1 to Current Report on Form 8-K on May 4, 2020, and incorporated herein by reference)
21.1
Subsidiaries of the Company.*
23.1
Consent of Marcum LLP.*
31.1
Certification of Chief Executive Officer pursuant to Rule 13a-14 and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.*
31.2
Certification of Chief Financial Officer pursuant to Rule 13a-14 and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.*
32.1
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Chief Executive Officer).**
32.2
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Chief Financial Officer).**
101.INS
XBRL Instance Document.*
101.SCH
XBRL Taxonomy Extension Schema Document.*
101.CAL
XBRL Taxonomy Extension Calculation Linkbase Document.*
101.DEF
XBRL Taxonomy Extension Definition Linkbase Document.*
101.LAB
XBRL Taxonomy Extension Label Linkbase Document.*
101.PRE
XBRL Taxonomy Extension Presentation Linkbase Document.*
* Filed herewith.
** Furnished herewith.
+ Management compensatory plan or arrangement.
Item 16.
### Form 10-K Summary
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
### EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A (the Amendment) amends the Annual Report on Form 10-K of Adicet Bio, Inc. (the Company) on Form 10-K for the fiscal year ended December 31, 2020, as filed with the Securities and Exchange Commission (the SEC) on March 11, 2021 (the Form 10-K).
This Amendment is being filed solely to replace the Consent of Independent Registered Public Accounting Firm (the PWC Consent) of PricewaterhouseCoopers LLP (PWC) included in the Form 10-K as Exhibit 23.2 with the correct PWC Consent. Due to an administrative oversight, an incorrect version of the PWC Consent was inadvertently included in the Form 10-K. The Company possessed a correct, manually signed copy of the PWC Consent from PWC when the Form 10-K was filed with the SEC.
This Amendment consists solely of the preceding cover page, this explanatory note, the information required by Item 15 of Form 10-K, a signature page, a replacement PWC Consent and new certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 as required by Rule 12b-15 of the Securities Exchange Act of 1934, as amended. Except as described in this Explanatory Note, this Amendment does not modify, amend, or update any of the financial information or any other information set forth in the Form 10-K, and this Amendment does not reflect events that occurred subsequent to March 31, 2021.
Item 15.
(1)
Financial Statements. The following Report and Consolidated Financial Statements of the Company were included in the Form 10-K:
Consolidated Statements of Redeemable Convertible Preferred Stock and Stockholders Equity (Deficit)
(2)
Financial Statement Schedules: All financial statement schedules have been omitted because they are not applicable, not required or the information required is shown in the financial statements or the notes thereto.
(3)
Exhibits: The exhibits listed in the accompanying index to exhibits are filed or incorporated by reference as part of this Amendment.
### EXHIBIT INDEX
Exhibit
Number
Description of Exhibit
3.1
Third Amended and Restated Certificate of Incorporation of the Registrant (as currently in effect) (incorporated by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K (File No.
3.2
related to the Reverse Stock Split, dated September 15, 2020 (incorporated by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K (File No.
3.3
related to the Name Change, dated September 15, 2020 (incorporated by reference to Exhibit 3.2 to the Registrants Current Report on Form 8-K (File No.
3.4
Amended and Restated Bylaws of the Registrant (as currently in effect) (incorporated by reference to Exhibit 3.2 to the Registrants Current Report on Form 8-K (File No.
4.1
Description of Securities (incorporated by reference to Exhibit 4.3 to the Registrants Annual Report on Form 10-K (File No. 001-38359) filed with the SEC on March 12, 2020).
4.2
Amended and Restated Investors Rights Agreement, dated as of November 29, 2017, among the Registrant and the other parties thereto (incorporated by reference to Exhibit 4.2 to our Registration Statement on Form S-1 (File No. 333-222373) filed with the SEC on December 29, 2017).
10.1
Escrow Agreement, dated as of September 15, 2020 by and among resTORbio, Inc. and the investors listed on the Schedule of Investors attached thereto. (incorporated by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K (File No.
10.2
+
Contingent Value Rights Agreement, dated as of September 15, 2020 by and among resTORbio, Inc., Computershare Inc. and Computershare Trust Company, N.A. (incorporated by reference to Exhibit 10.2 to the Registrants Current Report on Form 8-K (File No.
10.3
Second Amendment to Loan and Security Agreement, dated as of September 14, 2020, by and between Pacific West Bank and Adicet Therapeutics, Inc. (incorporated by reference to Exhibit 10.3 to the Registrants Current Report on Form 8-K (File No.
10.4
Third Amendment to Loan and Security Agreement, dated as of September 15, 2020, by and between Pacific West Bank and Adicet Therapeutics, Inc.
(incorporated by reference to Exhibit 10.4 to the Registrants Current Report on Form 8-K (File No.
10.5
Form of Warrant to Purchase Common Stock issued to Beech Hill Securities, dated September 15, 2020 (incorporated by reference to Exhibit 10.5 to the Registrants Current Report on Form 8-K (File No.
10.6
Warrant to Purchase Common Stock issued to PacWest Bancorp, dated September 15, 2020 (incorporated by reference to Exhibit 10.6 to the Registrants Current Report on Form 8-K (File No.
10.7
Unconditional Secured Guaranty, dated September 15, 2020 (incorporated by reference to Exhibit 10.7 to the Registrants Current Report on Form 8-K (File No.
10.8
Amendment No. 1 to Loan and Security Agreement, dated as of July 8, 2020, between Adicet Therapeutics, Inc. and Pacific Western Bank (incorporated by reference to Exhibit 10.32 to the Registrants Current Report on Form 8-K (File No.
10.9#
First Amendment to the Adicet Bio, Inc. 2018 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.33 to the Registrants Current Report on Form 8-K (File No.
10.10#
Employment Agreement, dated as of September 15, 2020, by and between the Company and Chen Schor (incorporated by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K (File No.
10.11#
Employment Agreement, dated as of September 15, 2020, by and between the Company and Carrie Krehlik (incorporated by reference to Exhibit 10.2 to the Registrants Current Report on Form 8-K (File No.
10.12#
Employment Agreement, dated as of September 15, 2020, by and between the Company and Francesco Galimi (incorporated by reference to Exhibit 10.3 to the Registrants Current Report on Form 8-K (File No.
10.13#
Employment Agreement, dated as of September 15, 2020, by and between the Company and Lloyd Klickstein (incorporated by reference to Exhibit 10.4 to the Registrants Current Report on Form 8-K (File No.
10.14#
Employment Agreement, dated as of September 15, 2020, by and between the Company and Nick Harvey (incorporated by reference to Exhibit 10.5 to the Registrants Current Report on Form 8-K (File No.
10.15
First Amendment to Lease, dated as of December 30, 2020, between Adicet Therapeutics, Inc. as Tenant, and Westport Office Park, LLC as Landlord (incorporated by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K (File No. 001-38359) filed with the SEC on January 5, 2021).
10.16
Office Lease Agreement, dated as of January 8, 2018, by and between the Registrant and 500 Boylston and 222 Berkeley Owner (DE) LLC (incorporated by reference to Exhibit 10.15 to the Registrants Registration Statement on Form S-1, as amended, (File No. 333-222373) filed with the SEC on January 16, 2018).
10.17
First Amendment to Office Lease, dated as of April 1, 2019, by and between the Registrant and 500 Boylston and 222 Berkeley Owner (DE) LLC (incorporated by reference to Exhibit 10.2 to the Registrants Quarterly Report on Form 10-Q (File No. 001-38359) filed with the SEC on May 15, 2019).
10.18
Amendment No. 2 to License Agreement, dated August 20, 2019, by and between the Registrant and Novartis International Pharmaceutical Ltd. (incorporated by reference to Exhibit 10.1 to the Registrants Quarterly Report on Form 10-Q (File No. 001-38359) filed with the SEC on November 5, 2019).
10.19
Stock Purchase Agreement, dated February 12, 2021, by and among the Registrant and the Investors named therein (incorporated by reference to Exhibit 10.1 to the Registrants Registration Statement on Form 8-K, as amended (File No. 001-38359) filed with the SEC on February 16, 2021).
10.20
Registration Rights Agreement, dated February 12, 2021, by and among the Registrant and the Investors named therein.
21.1
23.1
Consent of KPMG LLP, independent registered public accounting firm.
23.2*
Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.
31.1*
Certification of Principal Executive Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2*
Certification of Principal Financial Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1**
Certification of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C.
101.INS
### Inline
XBRL Instance Document
101.SCH
### Inline
101.CAL
### Inline
101.DEF
### Inline
101.LAB
### Inline
101.PRE
### Inline
104*
Cover Page Interactive Data File
*
Filed herewith.
Previously filed.
+
Confidential treatment granted as to certain portions, which portions have been omitted and filed separately with the Securities and Exchange Commission.
#
**
The certifications furnished in Exhibit 32.1 hereto are deemed to accompany this Annual Report on Form 10-K and will not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. Such certifications will not be deemed to be incorporated by reference into any filings under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, except to the extent that the Registrant specifically incorporates it by reference.<|endoftext|>Krauss, M.D., the former Chief Executive Officer and director of KBL, alleging the occurrence of an event of default of the terms of a certain promissory note in the amount of $371,178, dated March 15, 2019, evidencing amounts owed by the Company to KBL IV Sponsor LLC (which Dr. Krauss serves as sole managing member of), for failure to repay such note within five days of the release of funds from escrow in connection with the Purchase Agreement. Dr. Krauss has declared the entire amount of the note to be immediately due and payable. The note, pursuant to its terms, accrues damages of $2,000 per day until paid in full (subject to a maximum amount of damages equal to the principal amount of the note upon the occurrence of the event of default thereunder). There are continuing disputes regarding amounts that may be due to Dr. Krauss under the note.
### Registration Rights
The holders of the founder shares and private placement units (and their component securities) and their permitted transferees are entitled to registration rights pursuant to a registration rights agreement signed on the effective date of our IPO. The holders of these securities and their permitted transferees are entitled to make up to three demands, excluding short form demands, that we register such securities. In addition, the holders and their permitted transferees have certain piggy-back registration rights with respect to registration statements filed subsequent to our completion of our initial business combination and rights to require us to register for resale such securities pursuant to Rule415 under the Securities Act. Notwithstanding the foregoing, the underwriters may not exercise their demand and piggyback registration rights after five (5)and seven (7) years after the effective date of the registration statement relating to our IPO and may not exercise their demand rights on more than one occasion. Further, the holders and their permitted transferees have certain piggy-back registration rights regarding the shares of our common stock issuable upon the conversion of the Convertible Sponsor Note with respect to the registration statement(s) that we may file pursuant to the Registration Rights Agreement that we entered into in connection with the June 2020 SPA. We satisfied the foregoing registration rights through the filing of a Registration Statement on Form S-1 (No. 333-248539), which registration statement was declared effective on November 2, 2020; provided that such registration statement is currently not effective and we are currently in default of our obligations under the Registration Rights Agreement.
### Related Party Transaction Policy
Our audit committee must review and approve any related party transaction we propose to enter into. Our audit committee charter details the policies and procedures relating to transactions that may present actual, potential or perceived conflicts of interest and may raise questions as to whether such transactions are consistent with the best interest of our company and our stockholders. A summary of such policies and procedures is set forth below.
Any potential related party transaction that is brought to the audit committees attention will be analyzed by the audit committee, in consultation with outside counsel or members of management, as appropriate, to determine whether the transaction or relationship does, in fact, constitute a related party transaction. At its meetings, the audit committee will be provided with the details of each new, existing or proposed related party transaction, including the terms of the transaction, the business purpose of the transaction and the benefits to us and to the relevant related party.
In determining whether to approve a related party transaction, the audit committee must consider, among other factors, the following factors to the extent relevant: whether the terms of the transaction are fair to us and on the same basis as would apply if the transaction did not involve a related party; whether there are business reasons for us to enter into the transaction; whether the transaction would impair the independence of an outside director; and whether the transaction would present an improper conflict of interest for any director or executive officer.
Any member of the audit committee who has an interest in the transaction under discussion must abstain from any voting regarding the transaction, but may, if so, requested by the Chairman of the audit committee, participate in some or all of the audit committees discussions of the transaction. Upon completion of its review of the transaction, the audit committee may determine to permit or to prohibit the transaction.
### Director Independence
Our board of directors has determined that Larry Gold, Ph.D. and Donald A. McGovern, Jr., are independent directors as defined under the NASDAQ rules governing members of boards of directors and as defined under Rule 10A-3 of the Exchange Act. As described in greater detail below, although we do not currently meet the NASDAQ continued listing rules which require a majority of a listed companys board of directors be independent and which require an audit committee consisting of at least three members, NASDAQ has provided us until June 30, 2021, to regain compliance with such continued listing rules.
Continued Listing Rules
).
On May 27, 2021, the Companys Board of Directors appointed two new directors to the Board, effective on June 15, 2021. On June 8, 2021, the Companys Board of Directors appointed two additional directors to the Board of Directors, effective on the earlier of (a) the day following the date this Report is filed with the SEC; and (b) June 28, 2021 and changed the effective date of appointment for the other two directors to the same date. As a result of these appointments, the Company expects to be in compliance with the independent director requirements under the NASDAQ rules.
ITEM 14.
### PRINCIPAL ACCOUNTANT FEES AND SERVICES
WithumSmith+Brown, PC (
Withum
) served as the independent registered public accounting firm for KBL from its inception through the closing of the Business Combination on November 6, 2020. The firm of Marcum LLP (
### Marcum
) served as the independent registered public accounting firm for privately-held 180 prior to the Business Combination, and continued as the Companys independent registered public accounting firm following the Business Combination.
The following is a summary of fees paid or to be paid for audit, tax and related fees for services rendered during the periods indicated:
(1)
Includes an amount based on Canadian dollar to U.S. dollar exchange rate of 0.7568 on December 31, 2019.
### Audit Fees
Audit fees consist of fees billed for professional services rendered for the audit of our annual consolidated financial statements and services that are normally provided by Marcum LLP and Withum, Smith and Brown, PC in connection with regulatory filings, including for professional services rendered for the audit of our annual consolidated financial statements, review of the financial information included in our Forms 10-Q for the respective periods and other required filings with the SEC for the applicable years. The above amounts include interim procedures and audit fees, as well as attendance at audit committee meetings.
### Audit-Related Fees
Audit-related services consist of fees billed for assurance and related services that are reasonably related to performance of the audit or review of our consolidated financial statements and are not reported under
Audit Fees.
These services include attest services that are not required by statute or regulation and consultations concerning financial accounting and reporting standards.
### Tax Fees
Include fees paid for tax return services.
All Other Fees
### Includes fees not included under
Audit Fees
,
### Audit-Related Fees and
Tax Fees
### Pre-Approval Policy
It is the policy of our board of directors that all services to be provided by our independent registered public accounting firm, including audit services and permitted audit-related and non-audit services, must be pre-approved by our Audit Committee. Our Audit Committee pre-approved all services, audit and non-audit related, provided to us by Marcum and Withum for 2020 and 2019.
PART IV
ITEM 15.
### EXHIBITS, FINANCIAL STATEMENTS AND SCHEDULES
(a) Documents filed as part of this Annual Report:
The following is an index of the financial statements, schedules and exhibits included in this Form10-K or incorporated herein by reference.
(1)
All Financial Statements
(2)
### Consolidated Financial Statement Schedules
Except as provided above, all financial statement schedules have been omitted, since the required information is not applicable or is not present in amounts sufficient to require submission of the schedule, or because the information required is included in the consolidated financial statements and notes thereto included in this Form 10-K.
(3)
Exhibits
EXHIBIT INDEX
%
Certain schedules and exhibits to the Business Combination Agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the Securities and Exchange Commission upon request.
*
Filed herewith.
**
Furnished herewith.
#
Management contract or compensatory plans or arrangements.
ITEM 16.
### FORM 10K SUMMARY
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
For the respective periods:
### Related parties
and
2014-10,
Development Stage Entities
### Consolidation
The Company has no off-balance sheet arrangements
ITEM 7A.
ITEM 8.
ITEM 9.
None.
### ITEM 9A. CONTROLS AND PROCEDURES
and
1.
We plan to create a position to segregate duties consistent with control objectives and will increase our personnel resources and technical accounting expertise within the accounting function.
2.
### ITEM 9B. OTHER INFORMATION
None.
PART III
ITEM 10.
NAME
AGE
### POSITION
Chin Chee Seong
### Seah Kok Wah
Chief Investment Officer, Director
Chin Chee Seong President, Chief Executive Officer, Secretary, Treasurer, Director
Mr. Chin Chee Seong achieved a Bachelor Degree with Honours in Electrical, Electronic and Communication Engineering from National University of Malaysia (UKM) in 1985. He was the councilor and past chairman of the National ICT Association of Malaysia (PIKOM). He was appointed as the Honorary Chairman of PIKOM and is currently the Advisor of PIKOM. Additionally, Mr. Chin Chee Seong is also a National Vice President of SME Association of Malaysia, National President of the Malaysia Cross Boarder e-Commerce Association and Deputy Chairman of the Financial and Capital Market Committee of the Chinese Chamber of Commerce & Industry of Kuala Lumpur & Selangor (KLSCCCI).
Mr. Chin Chee Seong served as a technical engineer/technical manager of Seniko Sdn. Bhd. from 1985 to 1996. Seniko Sdn. Bhd. is a third party maintenance company which provides maintenance services relating to technology, computer systems, hardware and software. From 1996 to 2000 he was the General Manager of Telekom Equipment Malaysia, a subsidiary of Telekom Malaysia Bhd. From 200 to 2006 Mr. Chin served as Chief Executive Officer of JOC Technology, a full-service application service provider. The Companys services include virtual domain hosting, virtual domain e-mail services, and on-line e-commerce services.
From 2007 to present, Mr. Chin Chee Seong has served as the Chief Executive Officer of Gonzo Rosso Malaysia, a wholly owned subsidiary of Japan listed company, Gonzo Rosso K.K., which focused on the online gaming business, specifically operates online games and sells weapons and items used in games. Additionally, from 2014 to 2016, he was a Non-Executive Director of Galasys Plc., a company that provides information technology solutions and management services for the amusement industry which including ticketing management, admission control, theatre ticket management, online e-commerce, membership management, e-commerce, and e-wallet systems. Mr. Chin also served as Independent & Non-Executive Director at M-Mode Bhd, a digital contents and media company that offers contents through the engagement of devices and media, from August 14, 2009 to June 7, 2012.
Due to Mr. Chin Chee Seongs decades of experience in the ICT industry and his seven years of experience in Online Gaming Industry, the board of Directors has determined to elect Mr. Chin Chee Seong to the positions of Chief Executive Officer, President, Secretary, Treasurer, and Director.
### Seah Kok Wah Chief Investment Officer, Director
Mr. Seah Kok Wah is the current Deputy Chairman of the National ICT Association of Malaysia (PIKOM) and Vice President of the Malaysia Cross Border eCommerce Association (MCBEA). He is also a board member of The World Information Technology and Services Alliance (WITSA), a leading consortium of ICT industry association members from over 80 global economies. He graduated with a Masters Degree in Computer Science from California State University, United States of America, in 1996.
Mr. Seah Kok Wah began his career in Silicon Valley as a software applications developer for Software Publishing Corporation and Netscape Communications Corporation, from 1994 to 1997. Mr. Seah Kok Wah joined Sun Microsystem Inc., an American company that sold computers, computer components, software, and information technology services and created the Java programming language, the Solaris operating system, ZFS, the Network File System, and SPARC, from 1997 to 2003 and held the position of Sun Professional Services Business Operation & Channels Management of Greater China.
Mr. Seah Kok Wah co-founded several companies including Bimbit.com Sdn Bhd in 2005, Afor Pte Ltd Singapore in 2002 which floated on the Singapore Stock Exchange in 2008 and subsequently rebranded as EpiCentre Holdings Ltd. Mr. Seah Kok Wah was also one of the co-founders of Galasys PLC in 2010 that was floated on the London Stock Exchange in 2014. Galasys PLC provides information technology solutions and management services for the amusement industry as abovementioned. He served as its Chief Executive Officer and Executive Director from 2014 to 2017. Additionally, he has served as Chairman of SCCW Holdings Sdn Bhd in 2018 until now.
Mr. Seah Kok Wahs corporate management and strategy experience in the information and computer technology industry has led the Board of Directors to reach the conclusion that he should serve as the Chief Investment Officer and Director of the Company.
### Corporate Governance
### Committees of the Board
1.
2.
3. or
4.
5.
6.
7.
or
8.
Code of Ethics
### Shareholder Proposals
### ITEM 11. EXECUTIVE COMPENSATION
Summary Compensation Table:
### Stock Option Grants
Employment Agreements
Director Compensation
Our Board of Directors does not currently receive any consideration for their services as members of the Board of Directors.
Incentive Bonus
ITEM 12.
As of December 31, 2020, the Company has 92,519,867 shares of common stock issued and outstanding, which number of issued and outstanding shares of common stock have been used throughout this report.
are Mr. Lee Chong Kuang and Mr. Loke Che Chan.
Mr. Bhd.
(1)
In determining the percent of common stock owned by a person or entity as of the date of this Report, (a) the numerator is the number of shares of the class beneficially owned by such person or entity, including shares which may be acquired within 60 days on exercise of warrants or options and conversion of convertible securities, and (b) the denominator is the sum of (i) the total shares of common stock outstanding on as of the date of this Annual Report (92,519,867 shares), and (ii) the total number of shares that the beneficial owner may acquire upon exercise of the derivative securities.
(2)
Based on the total issued and outstanding shares of 92,519,867 as of the date of this Annual Report.
ITEM 13.
On April 2, 2018, the Company issued 100,000 shares of restricted common stock, with a par value of $0.0001 per share, to Mr. Chin Chee Seong for initial working capital of $10. Mr. Chin Chee Seong is Chief Executive Officer, President, Secretary, and Treasurer of the Company. He is also a member of our Board of Directors.
On April 2, 2018 Mr. Seah Kok Wah was appointed Chief Investment Officer of the Company and was subsequently appointed as Director on March 13, 2019.
On May 2, 2018, we, the Company acquired 100% of the equity interests in SEATech Ventures Corp (herein referred as the Malaysia Company), a company incorporated in Labuan, Malaysia.
On December 21, 2018, SEATech Ventures Corp, a Malaysia Company acquired SEATech Ventures (HK) Limited (herein referred as the Hong Kong Company), a company incorporated in Hong Kong.
On May 14, 2018, the Company issued 20,000,000 shares of restricted common stock to both Mr. Chin Chee Seong and Mr. Seah Kok Wah, with a par value of $0.0001 per share, for total additional working capital of $4,000. Mr. Seah Kok Wah is our Chief Investment Officer.
On August 7, 2018, the Company issued 10,000,000 shares of restricted common stock to Greenpro Venture Capital Limited, with a par value of $0.0001 per share, for additional working capital of $1,000. are Mr. Lee Chong Kuang and Mr. Loke Che Chan.
On August 8, 2018, the Company issued 30,000,000 shares of restricted common stock to Greenpro Asia Strategic SPC, with a par value of $0.0001 per share, for additional working capital of $3,000.
On August 27, 2018, the Company issued 10,000,000 shares of restricted common stock to STVC Talent Sdn Bhd, with a par value of $0.0001 per share, for additional working capital of $1,000. Mr. Bhd.
are Lee Chong Kuang and Loke Che Chan.
During the period December 31, 2018 the Company paid $60,000 to Greenpro Financial Consulting Limited for professional services.
For the year ended December 31, 2019, the Company paid $158,720 Greenpro Financial Consulting Limited for professional services and cost of providing corporate development advisory services to ICT and technology based companies.
For the year ended December 31, 2020 the Company has following transactions with related parties:
### ITEM 14.
PART IV
ITEM 15.
(a) Financial Statements
Financial Statements
The following financial statements of SEATech Ventures Corp.
(b) Exhibits
3.1
Articles of Incorporation**
3.2
Bylaws**
31.1
31.2
Rule 13(a)-14(a)/15(d)-14(a) Certification of principal investment officer*
32.1
32.2
Section 1350 Certification of principal investment officer*
101.INS
XBRL Instance Document*
101.SCH
XBRL Schema Document*
101.CAL
XBRL Calculation Linkbase Document*
101.DEF
101.LAB
XBRL Label Linkbase Document*
101.PRE
### XBRL Presentation Linkbase Document*
* Filed herewith.
333-228847) on April 30, 2019.<|endoftext|>Been reversed, suspended, or vacated;
(e) Being found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated;
(f) being the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of: (i) any federal or state securities or commodities law or regulation; or
(g) being the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Securities Exchange Act of 1934), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member.
Principal Stockholders
The following table sets forth information regarding beneficial ownership of our Common Stock as of March 31, 2021 (except where otherwise noted) based on a review of information filed with the SEC and our records with respect to (i) each person known to be the beneficial owner of more than 5% of the outstanding shares of our Common Stock, (ii) each of our directors, (iii) each of our named executive officers, and (iv) all our directors and named executive officers as a group.
### Notes:
* Calculated on the basis of 124,503,233 shares of Common Stock outstanding on March 31, 2021. Pursuant to the regulations of the SEC, shares are deemed to be beneficially owned by a person if such person directly or indirectly has or shares the power to vote or dispose of such shares. Each person is deemed to be the beneficial owner of securities which may be acquired through the exercise of options, warrants, and other rights, if any, and such securities are deemed to be outstanding for the purpose of computing the percentage of the class beneficially owned by such person.
1.
Consists of 12,332,723 unrestricted shares of Common Stock owned by Jerry D. Smith, JD Investments, Inc., Sonoran Pacific Resources, LLP, High Sonoran Group Inc., SonoranPacific Foundation Inc., JDS Trust, WESCO Energy Corporation, SH114, LLP, Insurance Endowment Strategies, LLP and 75th Street Holdings, LLC and 2,886,890 shares of Common Stock issuable upon exercise of Common Stock Purchase Warrants.
2.
Consists of 10,542,244 unrestricted shares of Common Stock owned directly by Mr. McDermott, 318,701 shares owned by KRB Leasing, Inc. controlled by Mr. McDermott, 146,065 shares of Common Stock issuable upon exercise of Common Stock Purchase Warrants and 700,000 shares issuable upon exercise of options.Consists of 11,098,368 unrestricted shares of Common Stock owned by Mr. DeSanti, and 3,295,000 shares of Common Stock issuable upon exercise of Common Stock Purchase Warrants.
3.
Consists of 350,140 unrestricted shares of Common Stock owned by Mr. JD Smith.
4.
Consists of 8,108,845 unrestricted shares of Common Stock owned by Mr. Stellinga and 100,000 shares of Common Stock issuable upon exercise of Common Stock Purchase Warrants.
5.
Consists of 913,420 unrestricted shares of Common Stock owned by Mr. Fortenbaugh.
6.
Consists of 3,006,388 unrestricted shares of Common Stock owned by Mr. Schneller.
7.
Consists of 919,862 unrestricted shares of Common Stock owned by Mr. Fidanza, 76,394 shares of Common Stock issuable upon exercise of Common Stock Purchase Warrants, and 300,000 shares issuable upon exercise of options.
8.
Consists of 590,753 unrestricted shares of Common Stock owned by Mr. Chakravarthi and 36,056 shares of Common Stock issuable upon exercise of Common Stock Purchase Warrants, and 300,000 shares issuable upon exercise of options.
### Executive Compensation
Retirement Benefits
There are no arrangements or plans in which we provide pension, retirement or similar benefits for directors or executive officers, except that our directors and executive officers receive stock options and shares of restricted stock at the discretion of our Board. We do not have any material bonus or profit-sharing plans pursuant to which cash or non-cash compensation is or may be paid to our directors or executive officers, except that stock options may be granted at the discretion of our Board.
### Warrants
The Company has not granted warrants to any director or officer of the Company.
Compensation Upon Termination of Employment
We have no plans or arrangements in respect of remuneration received or that may be received by any of our executive officers to compensate such officers in the event of termination of employment (as a result of resignation, retirement or change of control) or a change of responsibilities following a change of control.
### Changes in Control
Transactions with Related Persons, Promoters and Certain Control Persons and Corporate Governance
There has not been, and there is not currently proposed, any transaction or series of similar transactions to which we were or will be a party in which the amount involved exceeded or will exceed $120,000 and in which any of our directors, executive officers, or holders of more than 5% of any class of our voting securities or any member of the immediate family of any of the foregoing persons had or will have a direct or indirect material interest.
### Director Independence
We currently act with seven directors consisting of JD Smith, Robert P. McDermott, Robert DeSanti, Jeffrey W. Stellinga, John M. Schneller, Paul Jackson, and Samuel B. Fortenbaugh III. Our Common Stock is quoted on the OTCQB, which does not impose any director independence requirements. Under NASDAQ Rule 5605(a)(2), a director is not independent if he or she is also an executive officer or employee of the corporation or was, at any time during the past three years, employed by the Company has accepted or compensation in excess of $120,000 doing any period of 12 consecutive months within the prior 5 years other than, among other reasons, for Board or Board Committee Service. Using the NASDAQ definition of an independent director, we have four independent directors, JD Smith, Robert DeSanti, John M. Schneller, and Paul Jackson.
Item 14.
### Dismissal of Cherry Bekaert LLP
On January 15, 2021, the Company dismissed Cherry Bekaert LLP as our independent registered public accounting firm. The decision to change accountants was approved by our Audit Committee. The Cherry Bekaert LLP reports on our consolidated financial statements for the past fiscal year did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles, except that the audit report of Cherry Bekaert LLP on our financial statements for fiscal year 2019 contained an explanatory paragraph which noted that there was substantial doubt about our ability to continue as a going concern.
During our fiscal year ended December 31, 2020 and through January 15, 2021, (i) there were no disagreements with Cherry Bekaert LLP on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to Cherry Bekaerts satisfaction, would have caused Cherry Bekaert LLP to make reference to the subject matter of such disagreements in its reports on our consolidated financial statements for such year, and (ii) there were no reportable events as defined in Item 304(a)(1)(v) of Regulation S-K.
### Engagement of BF Borgers CPA PC
On January 18, 2021 the Company, upon the Audit Committees approval, engaged the services of BF Borgers CPA PC as the Companys new independent registered public accounting firm to audit the Companys consolidated financial statements as of December 31, 2020 and for the year then ended.
During each of the Companys two most recent fiscal years and through the date of this report, (a) the Company has not engaged BF Borgers CPA PC as either the principal accountant to audit the Companys financial statements, or as an independent accountant to audit a significant subsidiary of the Company and on whom the principal accountant is expected to express reliance in its report; and (b) the Company or someone on its behalf did not consult BF Borgers CPA PC with respect to (i) either: the application of accounting principles to a specified transaction, either completed or proposed; or the type of audit opinion that might be rendered on the Companys financial statements, or (ii) any other matter that was either the subject of a disagreement or a reportable event as set forth in Items 304(a)(1)(iv) and (v) of Regulation S-K.
### Cost of Fees and Services
During fiscal years December 31, 2020 and 2019, the Companys independent registered public accounting firms, Cherry Bekaert LLP rendered services to the Company for the following fees:
Audit Committee's Pre-Approval Practice
Section 10A(i) of the Securities Exchange act of 1934 prohibits our auditors from performing audit services for us as well as any services not considered to be
"audit services" unless such services are pre-approved by the board of directors (in lieu of the Audit Committee) or unless the services meet certain de minimis standards.
### PART IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Companys financial instruments including cash and cash equivalents, restricted cash, accounts receivable, accounts payable, and accrued liabilities approximate fair values due to their short-term maturities. Based on borrowing rates currently available to the Company for debt with similar terms, the carrying value of capital lease obligations and the related party note payable to GP Sponsor both approximate fair value as of the respective balance sheet dates.
### Significant Concentrations
The Company attributes revenues to geographic regions based on the location of its customers contracting entity. The following shows revenues by geographic region for the years ended December31, 2020, 2019 and 2018 (in thousands):
-43-
RIMINI STREET, INC.
###
No customers represented more than 10% of revenue for the years ended December31, 2020, 2019 and 2018. As of December31, 2020 and 2019, no customers represented 10% or more of total net accounts receivable. The Company tracks its assets by physical location. As of December31, 2020 and 2019, the net carrying value of the Companys property and equipment located outside of the United States amounted to approximately $1.3 million and $1.4 million, respectively. As of December 31, 2020, the Company had operating lease right-of-use assets of $11.0million, $5.8million and $0.8million in the United States, India and the rest of the world, respectively.
Financial instruments that subject the Company to concentrations of credit risk consist primarily of cash, cash equivalents, restricted cash, and accounts receivable. The Company maintains its cash, cash equivalents and restricted cash at high-quality financial institutions, primarily in the United States of America. Deposits, including those held in foreign branches of global banks, may exceed the amount of insurance provided on such deposits. As of December31, 2020 and 2019, the Company had cash and restricted cash with a single financial institution for an aggregate of $50.2 million and $33.1 million, respectively. The Company also had $0.3 million of restricted cash with a second financial institution as of December 31, 2020. The Company has never experienced any losses related to these balances.
Generally, credit risk with respect to accounts receivable is diversified due to the number of entities comprising the Companys customer base and their dispersion across different geographies and industries. The Company performs ongoing credit evaluations on certain customers and generally does not require collateral on accounts receivable. The Company maintains reserves for potential bad debts, and historically such losses are generally not significant.
-44-
RIMINI STREET, INC.
### NOTE 14 UNAUDITED QUARTERLY FINANCIAL DATA
The Companys unaudited quarterly financial information for the two-year period ended December31, 2020is as follows (in thousands, except per share amounts):
__________________
(1) Amount consists of net income (loss) less dividends and accretion of discount related to Series A Preferred Stock discussed in Note 6.
(2) Quarterly amounts may not sum to annual amounts due to rounding and the nature of the calculations.
-45-
### Item 9A. Controls and Procedures
We maintain a system of disclosure controls and procedures that are designed to reasonably ensure that information required to be disclosed in our SEC reports is recorded, processed, summarized, and reported within the time periods specified in the SECs rules and forms, and to reasonably ensure that such information is accumulated and communicated to our management, including our Chief Executive Officer and our Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure.
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) (Disclosure Controls) will prevent all errors and all fraud. We monitor our Disclosure Controls and make modifications as necessary; our intent in this regard is that the Disclosure Controls will be modified as systems change and conditions warrant.
An evaluation of the effectiveness of the design and operation of our Disclosure Controls was performed as of the end of the period covered by this Report. This evaluation was performed under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer. Based on this evaluation, and as a result of the material weakness in our internal control over financial reporting as described below, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures were not effective at the reasonable assurance level as of December 31, 2020 to ensure that information required to be disclosed by us in reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC..
Our internal control over financial reporting is a process designed to provide reasonable assurance to management and the Board of Directors regarding the reliability of our financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
Under the supervision of our management, including our Chief Executive Officer and our Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. This evaluation included review of the control documentation, evaluation of the design effectiveness of controls, testing the operating effectiveness of controls and a conclusion on this evaluation. Based on our evaluation, we have concluded that our internal control over financial reporting was not effective as of December31, 2020, due to the material weakness in internal control over financial reporting relating in improperly applying the accounting guidance for its GP Sponsor Private Placement Warrants, recognizing them as equity instead of a warrant liability, under the guidance of Accounting Standards Codification (ASC) 815-40, Contracts in Entitys Own Equity.
Our independent registered public accounting firm, KPMG LLP, has issued an adverse report with respect to the effectiveness of our internal control over financial reporting, which appears in Part II, Item 8 of this Annual Report on Form 10-K/A.
-46-
There were no changes in our internal control over financial reporting during the fiscal quarter ended December 31, 2020 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
### Remediation Plan
We and our Board of Directors are committed to maintaining a strong internal control environment. Management, with oversight from our Audit Committee, have evaluated the material weakness described above and designed a remediation plan to address the material weakness and enhance our internal control environment. The remediation plan is being implemented and includes a robust risk assessment process coupled with additional controls and procedures. Management is committed to successfully implementing the remediation plan as promptly as possible.
-47-
### PART IV
(b) Exhibits.
The exhibits listed in the following Exhibit Index are filed or incorporated by reference as part of this Report. The following are exhibits to this Report and, if incorporated by reference, we have indicated the document previously filed with the SEC in which the exhibit was included.
EXHIBIT INDEX
-48-
-49-
10.14*
First Amendment dated as of October 8, 2014 to Lease dated as of May 22, 2013 by and between the Registrant and BRE/HC Las Vegas Holdings, L.L.C.
S-4
333-219101
10.39
June 30, 2017
10.15*
Second Amendment dated as of April 3, 2017 to Lease dated as of May 22, 2013 by and between the Registrant and BRE/HC Las Vegas Holdings, L.L.C.
S-4
333-219101
10.40
June 30, 2017
10.16*
Bernal Corporate Park Sycamore Terrace: Amended and Restated Office Lease dated as of September 11, 2019 and effective as of September 1, 2020 between West State Company and Rimini Street, Inc.
10-K
001-37397
10.16
March 3, 2021
10.17*
Rimini Street, Inc. Employee Stock Purchase Plan
8-K
001-37397
10.1
June 8, 2018
10.18*
Stock Purchase Agreement dated October 30, 2020
8-K
001-37397
10.1
November 2, 2020
10.19*
Stock Purchase Agreement dated January 5, 2021
8-K
001-37397
10.1
January 6, 2021
21.1*
List of subsidiaries of the Registrant
10-K
001-37397
21.1
March 3, 2021
23.1+
31.1+
Certification of Seth A. Ravin, Chief Executive Officer Pursuant to Rule 13a-14(a)
31.2+
Certification of Michael L. Perica, Chief Financial Officer Pursuant to Rule 13a-14(a)
32.1+
Certification of Seth A. Ravin, Chief Executive Officer Pursuant to 18 U.S.C. Section 1350
32.2+
Certification of Michael L. Perica, Chief Financial Officer Pursuant to 18 U.S.C. Section 1350
101.INS+
XBRL Instance Document
101.SCH+
101.CAL +
101.DEF+
101.LAB+
101.PRE+
104+
* Previously filed and incorporated herein by reference.
+ Filed herewith.
In accordance with SEC Release 33-8238, Exhibits 32.1 and 32.2 are being furnished and not filed.
-50-<|endoftext|>### EXPLANATORY NOTE
This Amendment No.2 on Form
10-K/A
(Amendment No.2) amends our Annual Report on Form
10-K for the fiscal year ended December31, 2020, filed with the U.S. Securities and Exchange Commission (the SEC) on March18, 2021, as amended by our Amendment No.1 to Form
10-K, filed with the SEC on April6, 2021 (as amended, the Original Filing). The sole purpose of this Amendment No.2 is to amend and restate Part II, Item9A of the Original Filing in its entirety.
### In accordance with Rule
12b-15 under the Securities Exchange Act of 1934, as amended (Exchange Act), the Cover Page and Part II, Item 9A of the Original Filing is hereby amended and restated in its entirety. This Amendment No.2 does not amend, modify, or otherwise update any other information in the Original Filing. Accordingly, this Amendment No.2 should be read in conjunction with the Original Filing. In addition, this Amendment No.2 does not reflect events that may have occurred subsequent to the March18, 2021.
### Pursuant to Rule
12b-15 under the Exchange Act, this Amendment No.2 also amends Part III, Item 15 of the Original Filing to include new certifications pursuant to Section302 of the Sarbanes-Oxley Act of 2002, which are filed herewith. Because no financial statements have been included in this Amendment No.2, paragraph 3 of such certifications has been omitted. Similarly, because no financial statements have been included in this Amendment No.2, certifications pursuant to Section906 of the Sarbanes-Oxley Act of 2002 have been omitted.
### PART II
Item9A. Controls and Procedures.
:Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, we conducted an evaluation of our disclosure controls and procedures, as such term is defined under Exchange Act Rule
13a-15(e).
Based on this evaluation, and as a result of the material weakness in our internal control over financial reporting described below in
as well as our failure to include managements report on internal controls in the Original Filing as described below, our principal executive officer and principal accounting officer concluded that our disclosure controls and procedures were not effective as of the end of the period covered by thisAnnual Report on Form
10-K.
In designing and evaluating disclosure controls and procedures, our management recognizes that any system of controls, however well designed and operated, can provide only reasonable assurance, and not absolute assurance, that the desired control objectives of the system are met. In addition, the design of any control system is based in part upon certain assumptions about the likelihood of future events. Because of these and other inherent limitations of control systems, there can be no assurance that any design will succeed in achieving its stated goals in all future circumstances. Accordingly, our disclosure controls and procedures must be designed to provide reasonable, not absolute, assurance that the objectives of our disclosure control system are met. However, as set forth above, our principal executive officer and principal financial officer have concluded, based on their evaluation as of the end of the period covered by this Annual Report on
Form10-K, that our disclosure controls and procedures were not effective to provide reasonable assurance that the objectives of our disclosure control system were met.
In response to the conclusion set forth above, management intends to implement the remedial measures described below in
, as well as the following additional remedial measures:
Evaluate and improve our disclosure committee process, procedures and meetings, including specific requirements to consider our internal control over financial reporting and the impact of the remedial measures described below; and
Retain outside counsel to specifically evaluate our disclosure controls and procedures.
13a-15(f) and
15d-15(f) promulgated under the Exchange Act as a process designed by, or under the supervision of, our principal executive officer and principal accounting and financial officer and effected by our board of directors, management, and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP and includes those policies and procedures that:
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with USGAAP, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and
Becauseof the inherent limitations in a system of internal control over financial reporting, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake or fraud. Additionally, controls can be circumvented by individuals or groups of persons or by an unauthorized override of controls. Because of the inherent limitations in our control system, misstatements in our public reports due to error or fraud may occur and not be detected. In addition, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
As disclosed in the Original Filing, with respect to the year ended December31, 2020, we identified a material weakness in our internal control over financial reporting related to the design and implementation of our IT general controls including elevated (administrator) access to financial reporting systems and subsystems. Although we are making efforts to remediate these issues, these efforts may not be sufficient to avoid similar material weaknesses in the future.
Subsequent to the preparation and filing of the Original Filing, on June3, 2021, we became aware of an error in our interpretation of the transition period set forth in Instruction 1 to Item 308 of Regulation
S-K under the Exchange Act, relating to the requirement in Item 308(a) of Regulation
S-K to provide a report of management on our internal control over financial reporting (as defined in Rule
13a-15(f) under the Exchange Act). The Original Filing contained a statement that the Original Filing did not include a report of managements assessment regarding internal control over financial reporting due to a transition period established by rules of the Securities and Exchange Commission for newly public companies. However, we subsequently determined that the relevant transition period was no longer applicable to our Annual Report on Form
Accordingly, we were subject to the requirements of Item 308(a) of Regulation
S-K for the fiscal year ended December31, 2020. As a result of the error, management did not perform the assessment of internal control over financial reporting under a suitable, recognized control framework as required by Item 308 for the year ended December31, 2020. Promptly upon learning of the error, management, with the assistance of an independent consulting firm specializing in financial accounting advisory, assessed the effectiveness of our internal control over financial reporting as of December31, 2020 using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in
Internal Control Integrated Framework (2013 Framework
).Based on this assessment, our management, with the participation of our principal executive officer and principal financial officer, has concluded that, as of December31, 2020, our internal control over financial reporting was not effective based on those criteria.
In response to the material weakness described above, we retained an independent consulting firm specializing in financial accounting advisory, including internal control over financial reporting, to update our documentation of internal controls and related processes in light of the recent restructuring and outsourcing of many of our key functions.
Management also intends to implement the following remedial measures on a going-forward basis to implement effective internal control over financial reporting:
Continue to work with the independent consulting firm described above to test our existing controls and suggest further enhancements;
Hire additional qualified accounting and information technology personnel;
Regularly review progress on the development, enhancement and testing of internal controls with the audit committee of the board of directors, including specific presentations to the audit committee in such progress.
This annual report does not include an attestation report of our registered public accounting firm on our internal control over financial reporting due to an exemption established for emerging growth companies under the Jumpstart Our Business Startups (JOBS) Act.
Changes in Internal Control Over Financial Reporting:
During the quarter ended December31, 2020, there were no changes to our internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
### PART IV
Item15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Provision. As of December 31, 2020 and 2019, such interest and penalties are not material.
The Company is subject to taxation in the United States, California, and several foreign jurisdictions. To date, the Company has not been subject to any federal or state income tax audits. The Company is currently under examination by the Israeli taxing authorities for 2019 and 2018. As of December 31, 2020, all tax years remain open to examination.
In March 2020 and December 2020, the United States enacted the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Consolidated Appropriation Act (CAA), respectively, as a result of the COVID-19 pandemic, which contain among other things, numerous income tax provisions. Some of these tax provisions are expected to be effective retroactively for years ending before the date of enactment. The Company has evaluated the current legislation and at this time, does not anticipate the CARES Act or the CAA to have a material impact on its consolidated financial statements.
89bio, Inc.
10. Net Loss Per Share
The following outstanding potentially dilutive shares, including all outstanding stock options, have been excluded from the calculation of diluted net loss per share for the periods presented due to their anti-dilutive effect:
### Item 9. Changes in and Disagreements With
Accountants on Accounting and Financial Disclosure.
None.
Item 9A. Controls and Procedures.
As of December 31, 2020, our management, with the participation and supervision of our principal executive officer and our principal financial officer, evaluated our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act). The term disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SECs rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Companys management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure. Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost benefit relationship of possible controls and procedures. Based on this evaluation, our principal executive officer and our principal financial officer concluded that our disclosure controls and procedures were effective as of December 31, 2020 to provide reasonable assurance that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in SEC rules and forms, and that such information is accumulated and communicated to our management, including our principal executive officer and our principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.
Remediation Efforts on Previously Reported Material Weaknesses
During the audit of our consolidated financial statements for the period from January 18, 2018 (inception) to December 31, 2018, material weaknesses were identified in our internal control over financial reporting. A material weakness is a deficiency or combination of deficiencies in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim consolidated financial statements will not be prevented or detected on a timely basis by the companys internal controls. The material weaknesses that were identified related to the following:
We did not have an internal finance department. Consequently, we lacked sufficient personnel with an appropriate level of knowledge and requisite U.S. expertise to identify, evaluate and account for complex and non-routine transactions and an adequate supervisory review structure that is needed to comply with financial reporting requirements.
We did not have an adequate assessment of risks that could significantly impact internal controls over financial reporting and did not effectively design and monitor controls in response to the risks of material misstatement.
In 2019 and 2020, we implemented controls to remedy these material weaknesses. In 2019, we hired our Chief Financial Officer, principal accounting officer and additional qualified accounting and finance personnel, formalized our hiring practices and engaged financial consultants to enable the implementation of internal controls over financial reporting. In April 2020, we added a financial expert to the audit committee of the board of directors and in June 2020, we appointed a new board member, who also serves as audit committee chair.
As a result of these remediation activities and based on testing of the new and modified controls for operating effectiveness, our management concluded that we remediated the previously reported material weakness as of December 31, 2020.
Other than the changes in connection with the remediation of our previously disclosed material weaknesses, no change in our internal control over financial reporting (as defined in Rules13a-15(f)and15d-15(f)under the Exchange Act) occurred during the quarter ended December31, 2020 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f) under the Exchange Act). Internal control over financial reporting is a process designed under the supervision and with the participation of our management, including our principal executive officer and our principal financial officer, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with in the United States.
As of December 31, 2020, our management assessed the effectiveness of our internal control over financial reporting using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control-Integrated Framework (2013 Framework). Based on this assessment, our management concluded that our internal control over financial reporting was effective as of December 31, 2020.
Attestation Report of Registered Public Accounting Firm
As an emerging growth company, we are not required to provide and this Annual Report on Form 10-K does not include an attestation report on our internal control over financial reporting issued by the Companys independent registered public accounting firm. Our auditors will not be required to formally opine on the effectiveness of our internal control over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002 until we are no longer an emerging growth company, as defined in the Jumpstart Our Business Startups Act of 2012, and are no longer a non-accelerated filer.
Item 9B. Other Information.
None.
PART
III
Item 10.
The information required by this Item 10 is incorporated herein by reference to information in our proxy statement for our 2021 Annual Meeting of Stockholders (the 2021 Proxy Statement), which we expect to be filed with the SEC within 120 days of the end of our fiscal year ended December 31, 2020, including under the heading
We have adopted a written code of business conduct and ethics that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. A copy of the code is available on our website located at www
89bio.com
, under Corporate Governance
We intend to disclose on our website any amendments to, or waivers from, the code of business conduct and ethics that are required to be disclosed pursuant to the disclosure requirements of Item 5.05 of Form 8-K within four business days following the date of the amendment or waiver.
### Item 11. Executive Compensation.
The information required by this Item 11 is incorporated herein by reference to information in our 2021 Proxy Statement, including under headings Executive Compensation and
Item 12.
The information required by this Item 12 is incorporated herein by reference to information in our 2021 Proxy Statement, including under headings Security Ownership of Certain Beneficial Owners and Management and Executive Compensation-Securities Authorized for Issuance Under Equity Compensation Plans.
Item 13.
The information required by this Item 13 is incorporated herein by reference to information in our 2021 Proxy Statement, including under headings and Certain Relationships and Related Party Transactions.
### Item 14.
The information required by this Item 14 is incorporated herein by reference to information in our 2021 Proxy Statement, including under headings Proposal 2: Ratification of Selection of Independent Registered Public Accounting Firm.
PART IV
Item 15.<|endoftext|>Otherwise, in connection with such proceeding, such indemnification is mandatory.
We have agreed in principle to indemnify each of our directors and certain officers against certain liabilities, including liabilities under the Securities Act of 1933.
Currently we do not maintain any directors and officers liability insurance covering our directors and officers against expenses and liabilities arising from certain actions to which they may become subject by reason of having served in such role.
At present, other than litigation filed by Online Energy Manager, LLC (OEMN) against Energy Intelligence Center, LLC (EIC), an entity controlled by Charles Szoradi, CEO of our Purge Virus, LLC subsidiary, there is no pending litigation or proceeding involving any of our directors, officers, employees, or agents where indemnification will be required under California law. We are not aware of any threatened litigation or preceding that might result in a claim for such indemnification. All disputes between OEM, EIC and Szoradi now have been settled.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the provisions described above, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than our payment of expenses incurred or paid by our director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
### Item 11. Executive Compensation.
Other than an employment agreement with our CEO Vikram Grover (below), we have not entered into employment agreements with our executive officers and their compensation, if any, is determined at the discretion of our Board of Directors.
We do not offer retirement benefit plans to our executive officers, nor have we entered any contract, agreement, plan, or arrangement, whether written or unwritten, that provides for payments to a named executive officer at, or in connection with, the resignation, retirement or other termination of a named executive officer, or a change in control of the company or a change in the named executive officers responsibilities following a change in control. We do not have any standard arrangement for compensation of our directors for any services provided as director, including services for committee participation or for special assignments.
Given the nature of the Companys business, its limited stockholder base and the current composition of management, the board of directors does not believe that the Company requires a compensation committee at this time.
The following table summarizes all compensation recorded by us in 2019 and 2018 for our principal executive officers, each other executive officer serving as such whose annual compensation exceeded $100,000, and up to two additional individuals for whom disclosure would have been made in this table but for the fact that the individual was not serving as an executive officer of our company on December 31, 2019. The value attributable to any option awards is computed in accordance with FASB ASC Topic 718. The assumptions made in the valuations of the option awards are included in Note 2 of the Notes to our Financial Statements appearing later in this report.
Note:
Vikram Grover appointed CEO and Director on March 6, 2019.
### Employment Agreement
The Company has an employment agreement with its CEO, Vikram Grover, compensating him $12,500 per month, including $5,000 in cash compensation if the Company is not current and $7,500 in cash compensation if current with its SEC filings, with the balance due in restricted Series B Preferred shares. During 2019 and 2020, Mr. Grover converted all accrued compensation into Series B Preferred shares, leaving amounts due to him on December 31, 2020 at $0.00.
Stock Option Plan
We do not have a stock option plan although we may adopt one or more such plans in the future.
Employee Pension, Profit Sharing, or other Retirement Plans
We do not have a defined benefit, pension plan, profit sharing or other retirement plan, although we may adopt one or more of such plans in the future.
Item 12.
The following table sets forth, as of the closing of the acquisition of 2050 Motors, certain information with respect to the Companys equity securities owned of record or beneficially by (i) each Officer and Director of the Company; (ii) each person who owns beneficially more than five percent (5%) of each class of the Companys outstanding equity securities;
(1)
Unless otherwise indicated, based on 5,443,861,492 shares of common stock issued and outstanding as of the date of this report. Shares of common stock subject to options or warrants currently exercisable or exercisable within 60 days, are deemed outstanding for purposes of computing the percentage of the person holding such options or warrants but are not deemed outstanding for the purposes of computing the percentage of any other person.
Vikram Grover currently holds over 5% of the following classes of stock: Series A Preferred Shares (2,000,000 or 67%), Series B Preferred Shares (1,895,065 or 46%) and Series C Preferred Shares (1,000,000 or 100.0%).
Charles Szoradi, CEO of FOMOs wholly owned subsidiary Purge Virus, LLC, currently holds over 5% of the Companys Series B Preferred Shares (1,500,000 or 36%).
There were no classes of stock other than common stock or Series A, B & C Preferred stock issued or outstanding as of December 31, 2019.
Item 13.
None.
Director Independence
Our Common Stock is not quoted or listed on any national exchange or interdealer quotation system with a requirement that a majority of our board of directors be independent and therefore, the Company is not subject to any director independence requirements. Under NASDAQ Rule 5605(a)(2)(A), a director is not considered to be independent if he or she is also an executive officer or employee of the corporation. Under such definition our three officers and directors would not be considered an independent director.
### Item 14.
During 2020 and 2019 Boyle CPA, LLC, the Companys independent auditors, have billed for their services as set forth below. In addition, fees and services related to the audit of the financial statements of the Company for the period ended December 31, 2020, as contained in this Report, are estimated, and included for the fiscal year ended December 31, 2020.
Pre-Approval Policy
Our Board preapproved all services provided by Boyle CPA, LLC. For any non-audit or non-audit related services, the Board must conclude that such services are compatible with independence as our auditors.
### PART IV
Item 15. Exhibits; Financial Statement Schedules.
Exhibit No.
Description
2.1*
Plan and Agreement of Reorganization dated as of January 30, 2014, among the Company, 2050 Motors and the 2050 Motors Shareholders.
3.1**
Articles of Incorporation
3.2**
Articles of Amendment
3.3**
Amended and Restated By-laws December 16, 2019
10.1**
Convertible Note Between the Company and Auctus Fund LLC dated January 6, 2017
10.2**
Convertible Note Between the Company and JSJ Investments dated April 25, 2017
10.3**
Convertible Note and Warrant Agreement Between the Company and Crown Bridge Partners LLC September 15, 2017
10.4**
Convertible Note Between the Company and LG Capital Funding, LLC dated November 14, 2017
10.5**
dated January 24, 2018
10.6**
dated February 22, 2018
10.7**
dated April 11, 2018
10.8**
dated April 27, 2018.
10.9**
dated July 23, 2018
10.10**
dated October 1, 2018
10.11**
dated November 1, 2018
10.12**
dated March 8, 2019
10.13**
Convertible Note Between the Company and Tri-Bridge Ventures LLC dated March 15, 2019
10.14**
dated July 9, 2019
10.15**
Convertible Note Between the Company and GS Capital Partners LLC dated September 6, 2019
10.16**
Convertible Note Between the Company and GS Capital Partners LLC dated November 12, 2019
10.17**
dated November 14, 2019
10.18**
Convertible Note Between the Company and Auctus Fund LLC dated October 28, 2020
10.19**
Definitive Acquisition Agreement Between the Company and Purge Virus, LLC September 29, 2020
10.20**
FOMO CORP. Purge Virus, LLC Reps and Warranties October 18, 2020
31.1***
Certification of Principal Executive Officer pursuant to Rule 13a-14 and Rule 15d 14(a), promulgated under the Securities and Exchange Act of 1934, as Amended.
31.2***
Certification of Principal Financial Officer pursuant to Rule 13a-14 and Rule 15d 14(a), promulgated under the Securities and Exchange Act of 1934, as Amended.
32.1***
*
Incorporated by reference to the Companys Form 8-K as filed with the SEC on February 5, 2014.
**
Incorporated by reference to the Companys Registration Statement on Form 10s as filed with the SEC on October 30, 2012, July 19, 2019 and December 7, 2020 (amended December 8, 2020). And by reference to Companys Form 10K filed December 31, 2020 and the Companys 8K filed October 7, 2020.
***
Filed herewith.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
But are not obligated to, loan us funds, from time to time or at any time, in whatever amount they deem reasonable in their sole discretion. Each working capital loan would be evidenced by a promissory note. The working capital notes would either be paid upon consummation of our initial business combination, without interest, or, at holders discretion, up to $1,500,000 of the notes may be converted into units at a price of $10.00 per unit. These units would be identical to the private units.
The holders of our founder shares issued and outstanding prior to the initial public offering, as well as the holders of the private units and the units our initial shareholders, officers, directors or their affiliates may be issued in payment of working capital loans made to us (and all underlying securities), will be entitled to certain registration rights. The holders of a majority of these securities are entitled to make up to two demands that we register such securities. The holders of the majority of the founder shares can elect to exercise these registration rights at any time commencing three months prior to the date on which these founder shares are to be released from escrow. The holders of a majority of the private units and units issued in payment of working capital loans made to us (or underlying securities) can elect to exercise these registration rights at any time after we consummate a business combination. In addition, the holders have certain piggy-back registration rights with respect to registration statements filed subsequent to our consummation of a business combination.
On July 6, 2018, we issued an unsecured promissory note to Guan Wang, a member of our board of directors, pursuant to which we borrowed aggregate principal amount of $300,000. The note is non-interest bearing and payable on the consummation of our initial business combination.
Hong Ye, an entity solely owned by Guan Wang, has agreed that, commencing on August 1, 2018 and terminating upon completion of our initial business combination or the distribution of the Trust Account to our public shareholders, it will make available to us certain general and administrative services, including office space and utilities services, as we may require from time to time. We have agreed to pay Hong Ye $1,000 per month for these services.
Other than the $1,000 per month administrative fee, the $290,000 payment to White and Williams LLP (an affiliate of our director) for its legal services to the Company in connection with the IPO and other payments to such firm for legal services (including with respect to periodic filings) prior to the initial business combination and the repayment of $300,000 of non-interest bearing loans described above, no compensation or fees of any kind, including finders fee, consulting fees and other similar fees, will be paid to our initial shareholders, members of our management team or their respective affiliates, for services rendered prior to, or in order to effectuate the consummation of, our initial business combination (regardless of the type of transaction that it is). However, such individuals will receive reimbursement for any out-of-pocket expenses incurred by them in connection with activities on our behalf, such as identifying potential target businesses, performing business due diligence on suitable target businesses and business combinations as well as traveling to and from the offices, plants or similar locations of prospective target businesses to examine their operations.
On January 23, 2020, we deposited $1,148,800 into the Trust Account to extend the time available for us to complete a business combination from January 24, 2020 to April 27, 2020. In connection with the loan provided by the Sponsor, Alberton issued a promissory note to the Sponsor in the aggregate principal amount of $780,000. The promissory notes issued on July 6, 2018 and January 24, 2020 to the Sponsor, collectively as the Sponsor Notes. The Sponsor Notes are non-interest bearing and is payable on the date on which Alberton consummates its initial business combination. The sponsor, however, has the right to convert the Sponsor Notes, in whole or in part, into Albertons private units, as described in the public offering prospectus we filed with the Securities and Exchange Commission on October 24, 2018, file No. 333-227652.
During the year ended December 31, 2020, Alberton received an aggregate of $273,640in advances from Albertons Chief Executive Officer for working capital purposes, of which $140,000was used to partially fund the Extension. The advances are non-interest bearing and due on demand. At December 31, 2020, advances of $273,640were outstanding.
In December 2020, SolarMax made non-interest bearing loans to Hong Ye in the aggregate principal amount of $128,466, to enable Hong Ye to provide the Company with funds to pay for Albertons operating costs. At December 31, 2020, advances of $128,466were outstanding.
In February 2021, SolarMax made non-interest bearing loans to Hong Ye in the aggregate principal amount of $155,232, to enable the Sponsor to provide the Company with funds to pay for the Companys operating costs.
In March 2021, SolarMax made non-interest bearing loans to Hong Ye in the aggregate principal amount of $76,826, to enable the Sponsor to provide the Company with funds to pay for the Companys operating costs.
### RELATED PARTY POLICY
Our Code of Ethics requires us to avoid, wherever possible, all related party transactions that could result in actual or potential conflicts of interests, except under guidelines approved by the board of directors (or the audit committee). Related-party transactions are defined as transactions in which (1) the aggregate amount involved will or may be expected to exceed $120,000 in any calendar year, (2) we or any of our subsidiaries is a participant, and (3) any (a) executive officer, director or nominee for election as a director, (b) greater than 5% beneficial owner of our ordinary shares, or (c) immediate family member, of the persons referred to in clauses (a) and (b), has or will have a direct or indirect material interest (other than solely as a result of being a director or a less than 10% beneficial owner of another entity). A conflict of interest situation can arise when a person takes actions or has interests that may make it difficult to perform his or her work objectively and effectively. Conflicts of interest may also arise if a person, or a member of his or her family, receives improper personal benefits as a result of his or her position.
Our audit committee, pursuant to its written charter, will be responsible for reviewing and approving related-party transactions to the extent we enter into such transactions. The audit committee will consider all relevant factors when determining whether to approve a related party transaction, including whether the related party transaction is on terms no less favorable to us than terms generally available from an unaffiliated third-party under the same or similar circumstances and the extent of the related partys interest in the transaction. All ongoing and future transactions between us and any of our officers and directors or their respective affiliates will be on terms believed by us to be no less favorable to us than are available from unaffiliated third parties. Such transactions will require prior approval by a majority of our uninterested independent directors or the members of our board who do not have an interest in the transaction, in either case who had access, at our expense, to our attorneys or independent legal counsel. We will not enter into any such transaction unless our disinterested independent directors determine that the terms of such transaction are no less favorable to us than those that would be available to us with respect to such a transaction from unaffiliated third parties. No director may participate in the approval of any transaction in which he or she is a related party, but that director is required to provide the audit committee with all material information concerning the transaction. We also require each of our directors and executive officers to complete a directors and officers questionnaire that elicits information about related party transactions.
These procedures are intended to determine whether any such related party transaction impairs the independence of a director or presents a conflict of interest on the part of a director, employee or officer.
### ITEM 14.
Public Accounting Fees
The following chart sets forth public accounting fees in connection with services rendered by Friedman LLP for the years ended December 31, 2020 and 2019.
Audit fees were for professional services rendered by Friedman LLP for the audit of our annual financial statements and the review of the financial statements included in our quarterly reports on Forms 10-Q, and services that are normally provided by Friedman LLP in connection with statutory and regulatory filings or engagements for that fiscal year, including in connection with our IPO and initial business combination.
### Pre-Approval of Services
Huang, and Peng Gao. Mr. Qing S.
part IV
ITEM 15.
(a)
Financial Statements:
(1)
The financial statements required to be included in this Amendment are included in Item8 therein.
(2)
All supplemental schedules have been omitted since the information is either included in the financial statements or the notes thereto or they are not required or are not applicable.
(3)
### See attached Exhibit Index of this Amendment
(b)
Exhibits
### ITEM16. FORM 10-K SUMMARY
None.<|endoftext|>Calendar year ended on December31, 2020. Lighthouse Investment Partners, LLC has the shared power to vote or direct the vote of 598,532 shares of ClassA common stock and the shared power to dispose or to direct the disposition of 598,532 shares of ClassA common stock. The address of Lighthouse Investment Partners, LLC is 3801 PGA Boulevard, Suite500, Palm Beach Gardens, Florida 33410.
(6)
Information regarding is based solely on the Schedule 13G filed with the SEC on February9, 2021 for the calendar year ended on December31, 2020. has the sole power to vote or direct the vote of 950,000 shares of ClassA common stock and the sole power to dispose or to direct the disposition of 950,000 shares of ClassA common stock. The address of is 401 Bay Street, Suite1900, PO Box 19, Toronto, Ontario M5H 2Y4, Canada.
ITEM 13.
### Founder Shares
On August17, 2020, our sponsor purchased an aggregate of 4,312,500 shares of ClassB common stock (the Founder Shares) for $25,000, or $0.006 per share. Prior to the initial investment in the company of $25,000 by the our sponsor, the Company had no assets, tangible or intangible.
Our sponsor has agreed not to transfer, assign or sell any of their Founder Shares until the earlier of (A)one year after the completion of our initial business combination or earlier if, subsequent to our initial business combination, the closing price of the ClassA common stock equals or exceeds $12.00 per share (as adjusted for share sub-divisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20trading days within any 30-trading day period commencing at least 150days after our initial business combination and (B)the date following the completion of our initial business combination on which we complete a liquidation, merger, share exchange or other similar transaction that results in all of our stockholders having the right to exchange their shares of ClassA common stock for cash, securities or other property.
Simultaneously with the closing of the Public Offering, pursuant to the Private Placement Warrants Purchase Agreement, the Company completed the private sale of an aggregate of 6,481,550 warrants (the Private Placement Warrants) to our sponsor and one of the Companys directors at a purchase price of $1.00 per Private Placement Warrant, generating gross proceeds to the Company of $6,481,550. The Private Placement Warrants are identical to the Warrants sold in the Public Offering, except that the Private Placement Warrants, so long as they are held by our Sponsor or its permitted transferees, (i)are not redeemable by the Company, (ii)may not (including the ClassA common stock issuable upon exercise of such Private Placement Warrants), subject to certain limited exceptions, be transferred, assigned or sold by such holders until 30 days after the completion of the Companys initial business combination, (iii)may be exercised by the holders on a cashless basis and (iv)will be entitled to registration rights. If the Private Placement Warrants are held by holders other than our sponsor or its permitted transferees, the Private Placement Warrants will be redeemable by the Company and exercisable by the holders on the same basis as the Warrants included in the Units sold in the
Public Offering
If the Company does not consummate its initial business combination within 18 months from the closing the
### Public Offering
, the Private Placement Warrants will expire worthless.
### Underwriter Units
In lieu of 0.9% of the gross proceeds of the Public Offering, we issued to Oppenheimer& Co. Inc. 104,000 units simultaneously with the consummation of the Public Offering (Underwriter Units). Inc. In addition, Oppenheimer& Co. Inc.
The Underwriter Units (and the underlying ClassA Common Stock and warrants) were deemed compensation by FINRA and are therefore subject to a lock-up for a period of 180 days immediately following the date of the effectiveness of the registration statement relating to the Public Offering pursuant to Rule5110(e)(1)of FINRAs NASD Conduct Rules. In addition, for so long as they are held by Oppenheimer& Co. Inc. or its permitted transferees, the warrants underlying the Underwriter Units may not be exercised more than five years after the effective date of the registration statement relating to the Public Offering.
### Registration Rights
The holders of Founders Shares, Private Placement Warrants and Underwriter Units will be entitled to registration rights pursuant to a registration rights agreement signed on November24, 2020. In addition, the holders have certain piggy-back registration rights with respect to registration statements filed subsequent to our completion the Companys initial business combination. .
Administrative Services
We will reimburse our sponsor and its affiliates for office space, secretarial and administrative services provided to members of the Companys management team in an amount not to exceed $10,000 per month in the event such space and/or services are utilized and the Company does not pay a third party directly for such services, from the date of closing of the Public Offering.
### ITEM 14.
(1)
Audit Fees.
(2)
Audit-Related Fees.
(3)
Tax Fees.
(4)
All Other Fees.
Since the formation of our audit committee, and on a going-forward basis, the audit committee has and will pre-approve all auditing services and permitted non-audit services to be performed for us by Marcum LLP, including the fees and terms thereof (subject to the de minimis exceptions for non-audit services described in the Exchange Act which are approved by the audit committee prior to the completion of the audit).
PARTIV
ITEM 15.
(a)
(1)
### Financial Statements
Reference is made to the Index to Financial Statements of the Company under Item 8 of PartII above.
(2)
All financial statement schedules are omitted because they are not applicable or the amounts are immaterial, not required, or the required information is presented in the financial statements and notes thereto in Item 8 of PartII above.
(3)
### Exhibits
Exhibit
Description
3.1
Second Amended and Restated Certificate of Incorporation (Incorporated by reference to the corresponding exhibit to the Companys Current Report on Form8-K (File No.001- 39700), filed with the SEC on November25, 2020).
3.2
Bylaws (Incorporated by reference to the corresponding exhibit to Amendment No.1 to the Companys Registration Statement on FormS-l (File No.333-249437), filed with the SEC on October23, 2020).
4.1
Specimen Unit Certificate (Incorporated by reference to the corresponding exhibit to Amendment No.1 to the Companys Registration Statement on FormS-l (File No.333-249437), filed with the SEC on October23, 2020).
4.2
Specimen ClassA common stock Certificate (Incorporated by reference to the corresponding exhibit to Amendment No.1 to the Companys Registration Statement on FormS-l (File No.333-249437), filed with the SEC on October23, 2020).
4.3
Specimen Warrant Certificate (Incorporated by reference to the corresponding exhibit to Amendment No.1 to the Companys Registration Statement on FormS-l (File No.333-249437), filed with the SEC on October23, 2020).
4.4
Warrant Agreement between Kingswood Acquisition Corp. and Continental Stock Transfer& Trust Company, dated as of November19, 2020 (Incorporated by reference to the corresponding exhibit to Amendment No.1 to the Companys Current Report on Form8-K/A (File No.001-39700), filed with the SEC on November30, 2020).
4.5(1)
Description of Securities
10.1
Letter Agreement, dated November19, 2020, by and among the Company, Kingswood Global Sponsor LLC and each of the initial stockholders of the Company (Incorporated by reference to the corresponding exhibit to the Companys Current Report on Form8-K (File No.001-39700), filed with the SEC on November30, 2020, filed with the SEC on November25, 2020).
10.2
Investment Management Trust Agreement, dated November19, 2020, by and between the Company and Continental Stock Transfer& Trust Company, as trustee. (Incorporated by reference to the corresponding exhibit to the Companys Current Report on Form8-K (File No.001-39700), filed with the SEC on November30, 2020, filed with the SEC on November25, 2020).
10.3
Registration Rights Agreement, dated November19, 2020, by and among the Company, Kingswood Global Sponsor LLC and the other holders party thereto (Incorporated by reference to the corresponding exhibit to Amendment No.1 to the Companys Current Report on Form8-K/A (File No.001-39700), filed with the SEC on November30, 2020).
10.4
Private Placement Warrants Purchase Agreement, November19, 2020, by and among the Company, Kingswood Global Sponsor LLC and the other parties thereto (Incorporated by reference to the corresponding exhibit to Amendment No.1 to the Companys Current Report on Form8-K/A (File No.001-39700), filed with the SEC on November30, 2020).
14.1
(1)
Form of Code of Ethics (Incorporated by reference to the corresponding exhibit to Amendment No. 1 to the Companys Registration Statement on Form S-l (File No. 333-249437), filed with the SEC on October 23, 2020).
31.1
Certification of Principal Executive Officer and Principal Financial Officer pursuant to Rules13a-14 and 15d-14 promulgated under the Securities Exchange Act of 1934
32.1
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
Schedules to this exhibit have been omitted pursuant to Item 601(b)(2)of Regulation S-K. The registrant hereby agrees to furnish a copy of any omitted schedules to the SEC upon request.
(1)Incorporated by reference to the Initial 10-K filed on March18, 2021.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Our website at www.fgnewamerica.com. If any substantive amendments are made to the Code of Business Conduct and Ethics or any waiver is granted, we intend to satisfy the disclosure requirement under Item 5.05 of Form8-K regarding such amendment to, or waiver from, a provision of this Code of Business Conduct and Ethics by posting such information on our website, at the address and location specified above, or as otherwise required by the NYSE. The information included on our website is not incorporated by reference into this Annual Report on Form10-K/A or in any report or document we file with the SEC, and any references to our website are intended to be inactive textual references only.
Item 11. Executive Compensation.
We have agreed to pay our Sponsor $10,000 per month for office space, secretarial and administrative services provided to members of our management team through the earlier of consummation of our initial business combination and our liquidation, we will pay our Sponsor.
Item 12.
The following table sets forth information regarding the beneficial ownership of our common stock as of the date of March 1, 2021 based on information obtained from the persons named below, with respect to the beneficial ownership of shares of our common stock, by: each person known by us to be the beneficial owner of more than 5% of our outstanding shares of common stock;
The beneficial ownership of our common stock is based on 30,300,125 shares of common stock issued and outstanding as of March 1, 2021, consisting of 24,356,375 shares of ClassA common stock and 5,943,750 shares of ClassB common stock.
T he following table does not reflect record of beneficial ownership of the warrants included in the units offered in the IPO, the Private Placement Warrants, or the Private Unit Warrants as they are not exercisable within 60 days of March 1, 2021.
* Less than one percent.
(1)
Unless otherwise noted, the business address of each of the following is 105 S.
(2)
Interests shown include Founder Shares, classified as ClassB common stock. Such shares will automatically convert into shares of ClassA common stock concurrently with or immediately following the consummation of our initial business combination on a one-for-one basis, subject to adjustment, as described in the section entitled Description of Securities.
(3)
Includes shares held by FG New America Investors LLC. Larry G. Swets,Jr., D. Kyle Cerminara and Joseph Hugh Moglia are managers of FG New America Investors LLC. Messrs.Swets, Cerminara and Moglia have voting and investment discretion with respect to the common stock held of record by FG New America Investors LLC. Each of our officers and directors other than Messrs.Swets, Cerminara and Moglia disclaims any beneficial ownership of any shares held by FG New America Investors LLC.
(4)
According to the Amended Schedule 13G filed with the SEC on February8, 2020, Linden Capital L.P. (Linden Capital) and Linden GP LLC (Linden GP) reported shared voting and dispositive power with respect to 2,012,573 shares of our ClassA common stock and Linden Advisors LP (Linden Advisors) and Siu Min Wong reported shared voting and dispositive power with respect to 2,250,000 shares of our ClassA common stock collectively beneficially owned by them. The shares represented hereby are held for the account of Linden Capital and one or more separately managed accounts (the Managed Accounts). Mr.Wong is the principal owner and controlling person of Linden Advisors and Linden GP. In such capacities, Linden Advisors and Mr.Wong may each be deemed to beneficially own the shares held by each of Linden Capital and the Managed Accounts.
(5)
According to the Schedule 13G filed with SEC on February19, 2021, Corsair Capital Management LP (Corsair Management), acts as an investment manager of each of Corsair Capital Partners, L.P (Corsair Capital), Corsair Capital Partners 100, L.P (Corsair 100), Corsair Select L.P. (Corsair Select), Corsair Select 100 L.P. (Select 100), Corsair Capital Investors,Ltd. (Corsair Investors), Corsair Select Master Fund,Ltd. (Select Master) and Jay R. Petschek (Mr.Petschek) and Steven Major (Mr.Major) are controlling person of Corsair Management (collectively, the Reporting Persons). Collectively, the Reporting Persons beneficially own and reported shared voting and disposition power with respect to 2,408,131 shares of ClassA common stock.
The principal business address for each of Corsair Capital, Corsair 100, Corsair Select, Select 100,Corsair Management, Mr.Petschek and Mr.Major is 366 Madison Ave, 12 th floor, New York, NY 10017. The principal business address for each of Corsair Investors and Select Master is M&C Corporate Services Ltd, Box 309, George Town, Cayman Islands KY1-1104.
Item 13.
On July13, 2020, our Sponsor paid $30,000 to cover certain of our offering costs in exchange for 6,468,750 Founder Shares, or approximately $0.005 per share.
In addition, simultaneously with the closing of the IPO, the Company completed the private placement of an aggregate of 112,500 units (the Underwriter Units) to the underwriters.
We currently utilize office space at 105 S. from our Sponsor. The Company entered into an administrative services agreement (the Administrative Services Agreement) with the Sponsor on September29, 2020 whereby we will pay our Sponsor $10,000 per month for office space, secretarial and administrative services provided to members of our management team.
No compensation of any kind, including finders and consulting fees, will be paid by the company to our Sponsor, executive officers and directors, or any of their respective affiliates, for services rendered prior to or in connection with the completion of an initial business combination.
In addition, in order to finance transaction costs in connection with an intended initial business combination, our Sponsor or an affiliate of our Sponsor or certain of our officers and directors may, but are not obligated to, loan us funds as may be required on a non-interest basis. The warrants would be identical to the $11.50 Exercise Price Warrants.
Any of the foregoing payments to our Sponsor, repayments of loans from our Sponsor or repayments of working capital loans prior to our initial business combination will be made using funds held outside the trust account.
After our initial business combination, members of our management team who remain with us may be paid consulting, management or other fees from the combined company with any and all amounts being fully disclosed to our stockholders, to the extent then known, in the proxy solicitation or tender offer materials, as applicable, furnished to our stockholders.
The audit committee of our board of directors has adopted a policy setting forth the policies and procedures for its review and approval or ratification of related party transactions. (ii)the amount of which exceeds (or is reasonably expected to exceed) the lesser of $120,000 or 1% of the average of the companys total assets at year end for the prior two completed fiscalyears in the aggregate over the duration of the transaction (without regard to profit or loss); and (iv)any other person who maybe a related person pursuant to Item404 of RegulationS-K under the Exchange Act. Pursuant to the policy, the audit committee will consider (i)the relevant facts and circumstances of each related party transaction, including if the transaction is on terms comparable to those that could be obtained in arms-length dealings with an unrelated third party, (ii)the extent of the related partys interest in the transaction, (iii)whether the transaction contravenes our code of ethics or other policies, (iv)whether the audit committee believes the relationship underlying the transaction to be in the best interests of the company and its stockholders and (v)the effect that the transaction may have on a directors status as an independent member of the board and on his or her eligibility to serve on the boards committees. The policy does not permit any director or executive officer to participate in the discussion of, or decision concerning, a related person transaction in which he or she is the related party.
### Item 14
The following is a summary of fees paid or to be paid to Plante& Moran, PLLC, or P&M, for services rendered.
### Audit Fees
Audit fees consist of fees billed for professional services rendered for the audit of our initial financial statements and services that are normally provided by P&M in connection with regulatory filings. The aggregate fees billed by P&M for professional services rendered for the audit of our initial financial statements, audited balance sheet filed after our initial public offering, and review of the financial information included in our required filings with the SEC for the period from June24, 2020 (inception) through September30, 2020 totaled $20,000.
Audit-Related Fees.
We paid P&M $19,500 for the services performed related to consent and comfort letter issued in relation to our initial public offering.
### Tax Fees
We did not pay P&M for tax planning and tax advice for the period from June24, 2020 (inception) through December31, 2020.
All Other Fees
None.
### Pre-Approval Policy
Since the formation of our audit committee, and on a going-forward basis, the audit committee has and will pre-approve all auditing services and permitted non-audit services to be performed for us by our auditors, including the fees and terms thereof (subject to the de minimis exceptions for non-audit services described in theExchange Actwhich are approved by the audit committee prior to the completion of the audit).
PARTIV
Item 15.<|endoftext|>Many of our homes, especially as they move down in price point, any limitations, restrictions or changes in the availability of such government-backed financing could reduce our home sales, which could have a material adverse effect on our business, prospects, liquidity, financial condition and results of operations.
Current federal income tax laws cap individual state and local tax deductions at $10,000 for the aggregate of state and local real property and income taxes or state and local sales taxes, and cap mortgage interest deduction to $750,000 of debt ($1,000,000 after 2025) for mortgages taken out after December 15, 2017. Additionally, limits on deductibility of mortgage interest and property taxes may increase the after-tax cost of owning a home for some individuals. Any increases in personal income tax rates or additional tax deduction limits could adversely impact demand for new homes, including homes we build, which could adversely affect our results of operations. Furthermore, increases in real estate taxes and other local government fees, such as fees imposed on developers to fund schools, open space, and road improvements, or provide low- and moderate-income housing, could increase our costs and have an adverse effect on our operations. In addition, increases in local real estate taxes as well as the limitation on deductibility of such costs could adversely affect our potential home buyers, who may consider those costs in determining whether to make a new home purchase and decide, as a result, not to purchase one of our homes or not purchase a resale, which would negatively impact homebuyers that need to sell their home before they purchase one of ours.
Any limitation on, or reduction or elimination of, tax benefits associated with homeownership would have an adverse effect upon the demand for homes, which could be material to our business.
Current federal income tax laws include limits on federal tax deductions individual taxpayers may take on mortgage loan interest payments and on state and local taxes, including real estate taxes, that are lower than historical limits. These changes could reduce the perceived affordability of homeownership, and therefore the demand for homes, or have a moderating impact on home sales prices in areas with relatively high housing prices or high state and local income taxes and real estate taxes, including in certain of our served markets in California and New York. In addition, if the federal government further changes, or a state government changes, its income tax laws by eliminating or substantially reducing the income tax benefits associated with homeownership, the after-tax cost of owning a home could measurably increase. Any increases in personal income tax rates or tax deduction limits or restrictions enacted at the federal or state levels could adversely impact demand for or selling prices of new homes, including our homes, and the effect on our consolidated financial statements could be adverse and material.
We currently have investments in unconsolidated joint ventures with a third party in which we have less than a controlling interest. These investments are highly illiquid and have significant risks due to, in part, a lack of sole decision-making authority and reliance on the financial condition and liquidity of our joint venture partners.
We own interests in various joint ventures and, as of December 31, 2020 and December 31, 2019, Landsea Homes investments in and advances to its unconsolidated joint ventures were $21 million and $43 million, respectively. We have entered into joint ventures in order to manage our risk profile and to leverage our capital base. Such joint venture investments involve risks not otherwise present in wholly owned projects, including the following:
### Control and Partner Dispute Risk
We do not have exclusive control over the development, financing, management and other aspects of any such project or joint venture, which may prevent us from taking actions that are in our best interest but opposed by our partners. We cannot exercise sole decision-making authority regarding any such project or joint venture, which could create the potential risk of creating impasses on decisions, such as acquisitions or sales. Disputes between us and our partners may result in litigation or arbitration that would increase our expenses and prevent our officers and directors from focusing their time and efforts on our business and could result in subjecting the projects owned by the joint venture to additional risk. Our existing joint venture agreements contain buy-sell provisions pursuant to which one partner may initiate procedures requiring the other partner to choose between buying the other partners interest or selling our interest to that partner; we may not have the capital to purchase our joint venture parties interest under these circumstances even if we believe it would be beneficial to do so.
Development Risk
Typically, we serve as the administrative member, managing member, or general partner of our joint ventures and one of our subsidiaries acts as the general contractor while our joint venture partner serves as the capital provider. Due to our respective role in these joint ventures, we may become liable for obligations beyond our proportionate equity share. In addition, the projects we build through joint ventures are often larger and have a longer time horizon than the typical project developed by our wholly owned homebuilding operations. Time delays associated with obtaining entitlements, unforeseen development issues, unanticipated labor and material cost increases, higher carrying costs, and general market deterioration and other changes are more likely to impact larger, long-term projects, all of which may negatively impact the profitability and capital needs of these ventures and our proportionate share of income and capital.
### Financing Risk
There are generally a limited number of sources willing to provide acquisition, development and construction financing to land development and homebuilding joint ventures. During difficult market conditions, it may be difficult or impossible to obtain financing for our joint ventures on commercially reasonable terms, or to refinance existing joint venture borrowings as such borrowings mature. In addition, a partner may fail to fund its share of required capital contributions or may become bankrupt, which may cause us and any other remaining partners to need to fulfill the obligations of the venture in order to preserve their interests and retain any benefits from the joint venture. As a result, we could be contractually required, or elect, to contribute our corporate funds to the joint venture to finance acquisition and development or construction costs following termination or step-down of joint venture financing that the joint venture is unable to restructure, extend, or refinance with another third party lender. In addition, our ability to contribute our funds to or for the joint venture may be limited if we do not meet the credit facility conditions discussed above. In addition, we sometimes finance projects in our unconsolidated joint ventures with debt that is secured by the underlying real property. Secured indebtedness increases the risk of the joint ventures loss of ownership of the property (which would, in turn, impair the value of our ownership interests in the joint venture).
Contribution Risk
Under credit enhancements that we typically provide with respect to joint venture borrowings, we and our partners could be required to make additional unanticipated investments in and advances to these joint ventures, either in the form of capital contributions or loan repayments, to reduce such outstanding borrowings. We may have to make additional contributions that exceed our proportional share of capital if our partners fail to contribute any or all of their share. While in most instances we would be able to exercise remedies available under the applicable joint venture agreements if a partner fails to contribute its proportional share of capital, a partners financial condition may preclude any meaningful cash recovery on the obligation.
### Completion Risk.
We often sign a completion agreement in connection with obtaining financing for our joint ventures. Under such agreements, we may be compelled to complete a project, usually with costs within the budget related to the project being funded by the lender with any budget shortfalls being borne by us even if we no longer have an economic interest in the joint venture or the joint venture no longer has an interest in the property.
Illiquid Investment Risk
We lack a controlling interest in certain of our joint ventures and therefore are generally unable to compel such joint ventures to sell assets, return invested capital, require additional capital contributions or take any other action without the vote of at least one or more of our venture partners. This means that, absent partner agreement, we may not be able to liquidate our joint venture investments to generate cash.
### Consolidation Risk
The accounting
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Incorporation, as well as certain procedural protections. We have also entered into transactions with certain of our directors and officers, as described under the section Executive Compensation.
### Director Independence
Our common stock is traded on the NASDAQ Global Market. The Board of Directors has determined that seven of the members of the Board of Directors qualify as independent, as defined by the listing standards of the NASDAQ. Consistent with these considerations, after review of all relevant transactions and relationships between each director, or any of his family members, and the Company, its senior management and its independent auditors, the Board has determined further that Messrs. Berman, Sherman, Zecchini, Rebak, Giraldo and Ms. Seloff and Quinn are independent under the listing standards of NASDAQ. In making this determination, the Board of Directors considered that there were no new transactions or relationships between its current independent directors and the Company, its senior management and its independent auditors since last making this determination.
Each member of our Board of Directors serving on our Audit, Compensation and Nominations and Governance committees is independent within the meaning of the applicable Nasdaq listing standards.
The following table presents fees for professional audit services rendered by EisnerAmper LLP (EisnerAmper) for the audit of the Companys annual financial statements for the year ended December 31, 2020 and 2019 and fees billed for other services rendered during those periods:
__________
(1) Audit fees consisted of audit work performed in the preparation of financial statements, as well as work generally only the independent registered public accounting firm can reasonably be expected to provide, such as statutory audits.
(2) Fees relating to due diligence services related to acquisition.
1.
Audit services include audit work performed in the preparation of financial statements, as well as work that generally only an independent registered public accounting firm can reasonably be expected to provide, including comfort letters, statutory audits, and attest services and consultation regarding financial accounting and/or reporting standards.
2.
3.
4.
PART IV
ITEM 15.
(a)(3)
Exhibits
The following exhibits are filed as part of this report:
### Exhibit
No.
Description
3.1
Amended and Restated Certificate of Incorporation of Catasys, Inc., incorporated by reference to Appendix A to Catasys, Inc.s Definitive Schedule 14 C filed with the Securities and Exchange Commission on October 4, 2019.
3.2
Certificate of Amendment of Certificate of Incorporation, filed July 6, 2020 (incorporated herein by reference to Exhibit 3.1 to the Company's Form 8-K filed with the Securities and Exchange Commission ("SEC") on July 6, 2020).
3.3
By-Laws of Catasys, Inc., a Delaware corporation, incorporated by reference to Exhibit 3.6 of Catasys, Incs Form 10-K filed with the Securities and Exchange Commission on March 22, 2019.
3.4
Amended and Restated Bylaws of Ontrak, Inc., effective July 6, 2020 (incorporated herein by reference to Exhibit 3.2 to the Company's Form 8-K filed with the SEC on July 6, 2020).
3.5
Certificate of Designations regarding 9.50% Series A Cumulative Perpetual Preferred Stock (incorporated herein by reference to Exhibit 3.1 to the Company's Form 8-K filed with the SEC on August 21, 2020)
3.6
Amendment No. 1 to Certificate of Designations regarding 9.50% Series A Cumulative Perpetual Preferred Stock (incorporated herein by reference to Exhibit 3.1 to the Company's Form 8-K filed with the SEC on October 16, 2020).
4.1
Specimen Common Stock Certificate, incorporated by reference to exhibit of the same number to Catasys Inc.s annual report on Form 10-K filed with the Securities and Exchange Commission for the year ended December 31, 2005, on March 16, 2016.
4.2
Form of Heritage Warrant, incorporated by reference to Exhibit 4.1 of Catasys, Inc.s Form 8-K filed with the Securities and Exchange Commission on June 15, 2018.
4.3
Form of Horizon Warrant, incorporated by reference to Exhibit 4.1 of Catasys, Inc.s Form 8-K filed with the Securities and Exchange Commission on March 14, 2019.
4.4
Form of Senior Secured Note, incorporated by reference to Exhibit 4.1 of Catasys, Inc's Form 8-K filed with the Securities Exchange Commission on September 25, 2019.
4.5
Purchase Warrant for Common Shares issued in favor of Special Situations Investing Group II, LLC, dated September 24, 2019, incorporated by reference to Exhibit 4.2 of Catasys, Inc.'s Form 8-K filed with the SEC on September 25, 2019.
4.6**
Description of Securities.
10.1#
and Terren S. Peizer, dated September 29, 2003, incorporated by reference to Exhibit 10.2 of Catasys Inc.s annual report on Form 10-K filed with the Securities and Exchange Commission for the year ended December 31, 2005, on March 16, 2016.
10.2#
and Christopher Shirley, dated May 16, 2017, incorporated by reference to Exhibit 10.1 of Catasys, Inc.s current report on Form 8-K filed with the Securities and Exchange Commission on May 16, 2017.
10.3#
Form of Stock Option Grant Notice incorporated by reference to exhibit 10.4 of Catasys, Inc.s Form 10-K filed with the Securities and Exchange Commission on March 31, 2015.
10.4#
2017 Stock Incentive Plan, incorporated by reference to Exhibit B of Catasys, Inc.s Preliminary Information Statement on Schedule 14C filed with the Securities and Exchange Commission on February 28, 2017.
10.5#
Amended Employment Agreement, by and between the Company and Mr. Richard A. Anderson dated April 10, 2018, incorporated by reference to Exhibit 10.1 of Catasys Inc.s Form 8-K filed with the Securities and Exchange Commission on April 16, 2018.
10.6
Note Agreement, dated as of September 24, 2019, by and among Catasys, Inc., certain of its subsidiaries party thereto as guarantors, Goldman Sachs Specialty Lending Group, LP, as purchaser and any other purchasers party thereto from time to time and Goldman Sachs Specialty Lending Group, LP, as collateral agent, incorporated herein by reference to Exhibit 10.1 to the Company's Form 8-K filed with the SEC on September 25, 2019.
10.7
First Amendment to Note Purchase Agreement, dated as of June 30,2020, by and among Catasys, Inc., the Purchaser signatory thereto and Goldman Sachs Specialty Lending Group, L.P., incorporated herein by reference to Exhibit 10.1 to the Company's Form 8-K filed with the SEC on July 1, 2020.
10.8
Second Amendment to Note Purchase Agreement by and among the Company and Goldman Sachs Specialty Lending Group, L.P. dated as of August 19, 2020 (incorporated herein by reference to Exhibit 10.1 to the Company's Form 8-K filed with the SEC on August 20, 2020).
10.9
Third Amendment to Note Purchase Agreement between and among the Company and Goldman Sachs Specialty Lending Group, L.P. dated as of September 11, 2020 (incorporated herein by reference to Exhibit 10.1 to the Company's Form 8-K filed with the SEC on September 14, 2020)
10.10
Fourth Amendment to Note Purchase Agreement between and among the Company and Goldman Sachs Specialty Lending Group, L.P. dated as of September 30, 2020 (incorporated herein by reference to Exhibit 10.1 to the Company's Form 8-K filed with the SEC on October 2, 2020).
10.11
Fifth Amendment to Note Purchase Agreement between and among the Company and Goldman Sachs Specialty Lending Group, L.P. dated as of December 14, 2020 (incorporated herein by reference to Exhibit 10.1 to the Company's Form 8-K filed with the SEC on December 15, 2020).
10.12#
Modification of Employment Agreement dated December 16, 2019 by and between Catasys, Inc. and Mr. Christopher Shirley, incorporated by reference to Exhibit 10.1 of Catasys, Inc.s Form 8-K filed with the Securities and Exchange Commission on December 20, 2019.
10.13#
Employment Agreement dated November 15, 2019 by and between the Company and Mr. Curtis Medeiros, incorporated by reference to Exhibit 10.1 of Catasys, Inc.s Form 8-K filed with the Securities and Exchange Commission on December 6, 2019.
10.14#
Employment Agreement dated March 16, 2020 by and between the Company and Mr. Brandon LaVerne, incorporated herein by reference to Exhibit 10.1 of Ontrak, Inc.'s Form 8-K filed with the SEC on March 17, 2020
10.15#
Employment Agreement dated October 19, 2020 by and between the Company and Mr. Robert Newton, incorporated herein by reference to Exhibit 10.1 of Ontrak, Inc.'s Form 8-K filed with the SEC on October 23, 2020.
14.1
Code of Conduct and Ethics, incorporated by reference to Exhibit 14.1 of Catasys Inc.s Annual Report on Form 10-K filed with the Securities and Exchange Commission for the year ended December 31, 2003.
21.1**
Subsidiaries of the Company.
23.1 **
Consent of Independent Registered Public Accounting Firm EisnerAmper LLP.
31.1**
Certification by the Chief Executive Officer, pursuant to Rule 13-a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2**
Certification by the Chief Financial Officer, pursuant to Rule 13-a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.3*
, requir ed to be filed as an exhibit to this Amendment No. 1
31.4*
, required to be filed as an exhibit to this Amendment No. 1
32.1**
Certification by the Chief Executive Officer, pursuant to 18 U.S.C.
32.2**
Certification by the Chief Financial Officer, pursuant to 18 U.S.C.
101.INS**
XBRL Instance Document
101.SCH**
101.CAL**
101.DEF**
101.LAB**
101.PRE**
104*
____________________________
*Filed herewith.
**Previously filed or furnished.
#Management contract or compensatory plan or arrangement.<|endoftext|>Employee Stock Ownership Plan.
Sunnyside Federal sponsors an employee stock ownership plan (ESOP) for eligible employees. Sunnyside Federals named executive officers are eligible to participate in the ESOP just like any other employee. Eligible employees who have attained age 21 are eligible for participation in the ESOP on the first entry date commencing on or after the eligible employees completion of 1,000 hours of service during a continuous 12-month period.
The ESOP trustee purchased, on behalf of the employee stock ownership plan, 55,545 shares of Sunnyside Bancorp common stock in the initial stock offering. The purchase was funded with a loan from Sunnyside Bancorp equal to the aggregate purchase price of the common stock. The loan will be repaid principally through Sunnyside Federals contribution to the employee stock ownership plan and dividends payable on common stock held by the employee stock ownership plan over the anticipated 25-year term of the loan.
The trustee holds the shares purchased by the employee stock ownership plan in an unallocated suspense account, and shares are released from the suspense account on a pro-rata basis as we repay the loan. A participant becomes vested in his or her account balance at a rate of 20% per year over a 6-year period, beginning in the second year. Participants also will become fully vested automatically upon normal retirement, death or disability, a change in control, or termination of the employee stock ownership plan. Generally, participants will receive distributions from the employee stock ownership plan upon separation from service. The employee stock ownership plan reallocates any unvested shares forfeited upon termination of employment among the remaining participants.
Under applicable accounting requirements, Sunnyside Federal records a compensation expense for the employee stock ownership plan at the fair market value of the shares as they are committed to be released from the unallocated suspense account to participants accounts, which may be more or less than the original issue price. The compensation expense resulting from the release of the common stock from the suspense account and allocation to plan participants results in a corresponding reduction in Sunnyside Bancorps earnings.
### Director Compensation
The following table sets forth for the year ended December 31, 2020 certain information as to the total remuneration we paid to our directors other than Timothy D. Sullivan and Gerardina Mirtuono. Timothy D. Sullivan and Gerardina Mirtuono do not receive additional compensation for their service as a director. Information with respect to compensation paid to Timothy D. Sullivan and Gerardina Mirtuono is included above in Executive Officer Compensation Summary Compensation Table.
Director Fees
Each person who serves as a director of Sunnyside Bancorp also serves as a director of Sunnyside Federal and earns director and committee fees only in his or her capacity as a board or committee member of Sunnyside Federal.
Each individual who serves as a director of Sunnyside Federal earns annual attendance and committee fees. For the year ended December 31, 2020, each director was paid a fee of $1,200 for each board meeting attended. Additionally, for each Audit Committee meeting attended, each director was paid a fee of $400 if the director served as a member of the committee.
Item 12.
Persons and groups who beneficially own in excess of five percent of the Companys common stock are required to file certain reports with the Securities and Exchange Commission (the SEC) regarding such ownership. The following table sets forth, as of April 27, 2021, the shares of common stock beneficially owned by the Companys named executive officers and directors individually, by executive officers and directors as a group, and by each person or group known by us to beneficially own in excess of five percent of the Companys common stock.
*
Less than 1%.
(1)
In accordance with Rule 13d-3 under the Securities Exchange Act of 1934, a person is deemed to be the beneficial owner for purposes of this table, of any shares of Common Stock if he or she has shared voting or investment power with respect to such security, or has a right to acquire beneficial ownership at any time within 60 days from the Record Date. As used herein, voting power is the power to vote or direct the voting of shares, and investment power is the power to dispose or direct the disposition of shares. The shares set forth above for directors and executive officers include all shares held directly, as well as by spouses and minor children, in trust and other indirect ownership, over which shares the named individuals effectively exercise sole or shared voting and investment power.
(2)
Based on a Schedule 13G/A filed jointly with the SEC on February 12, 2021 by (i) M3 Funds, LLC, a Delaware limited liability company; (ii) M3 Partners, LP, a Delaware limited partnership; (iii) M3F, Inc, a Utah corporation; (iv) Jason A. Stock; and (v) William C. Waller.
(3)
Based on a Schedule 13D filed jointly with the SEC on April 20, 2021 by (i) Rhodium BA Holdings LLC, a Delaware limited liability company; (ii) OppCapital Associates LLC, a Wyoming limited liability company and (iii) Mark M. Silber.
(4)
Based on a Schedule 13G/A filed jointly with the SEC on February 3, 2017 by (i) Maltese Capital Management LLC, a New York limited liability company (MCM) and (ii) Terry Maltese, Managing Member of MCM.
(5)
The business address of each director, nominee and executive officer is 56 Main Street, Irvington, New York 10533.
(6)
Includes 3,635 shares allocated to Ms. Mirtuonos ESOP account and 3,750 shares of restricted stock over which Ms. Mirtuono has voting control.
(7)
Includes 5,106 shares allocated to Mr. Sullivans ESOP account and 5,500 shares of restricted stock over which Mr. Sullivan has voting control.
(8)
Includes 2,481 shares allocated to Mr. Lipkus ESOP account and 1,250 shares of restricted stock over which Mr. Lipkus has voting control.
In 2014, our stockholders approved the 2014 Equity Incentive Plan which authorizes the issuance of up to 103,155 shares of common stock, of which up to 79,350 shares of common stock may be delivered pursuant to the exercise of stock options and 23,805 shares of common stock may be issued pursuant to grants of restricted stock awards.
At December 31, 2020, all of the awards granted under the 2014 Equity Incentive Plan were vested.
Item 13.
In the ordinary course of business, Sunnyside Federal makes loans available to its directors, officers and employees. These loans are made in the ordinary course of business on substantially the same terms, including interest rate and collateral, as those prevailing at the time for comparable loans to other borrowers not related to Sunnyside Federal. Management believes that these loans neither involve more than the normal risk of collectability nor present other unfavorable features.
The Sarbanes-Oxley Act of 2002 generally prohibits us from making loans to the Companys executive officers and directors, but it contains a specific exemption from such prohibition for loans made by Sunnyside Federal to the Companys executive officers and directors in compliance with federal banking regulations. At December 31, 2020, all of Sunnyside Federals loans to directors and executive officers were made in the ordinary course of business, were made on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable loans to persons not related to Sunnyside Federal, and did not involve more than the normal risk of collectability or present other unfavorable features.
### Board Independence
The Board of Directors has determined that each of the Companys directors and nominees, with the exception of directors Sullivan and Mirtuono, is independent as defined in the listing standards of the Nasdaq Stock Market which the Company chooses to follow for purposes of such determination. Neither Mr. Sullivan nor Ms. Mirtuono is independent because each of them is an executive officer of the Company. There were no transactions required to be reported under Transactions With Certain Related Persons, below that were considered in determining the independence of the Companys directors.
Item 14.
### Audit Fees
The aggregate fees billed for professional services rendered by Fontanella Associates, LLC for the audit of the Companys annual financial statements for 2020 and 2019 were $45,000 and $46,000.
Audit-Related Fees
Fees billed for professional services rendered by Fontanella Associates, LLC that were reasonably related to the performance of the audits described above for 2020 and 2019 were $50,000 and $51,000.
### Tax Fees
There were no fees billed for professional services by Fontanella Associates LLC for tax services for 2020 and 2019.
All Other Fees
There were no fees billed for professional services rendered for the Company by Fontanella Associates LLC for services other than those listed above for 2020 and 2019.
The Audit Committees policy is to pre-approve all audit and non-audit services provided by independent auditors. Pre-approval is generally provided for up to one year and any pre-approval is detailed as to particular service or category of services and is generally subject to a specific budget. The independent auditors and management are required to periodically report to the full Audit Committee regarding the extent of services provided by the independent auditors in accordance with this pre-approval, and the fees for the services performed to date. There were no fees paid by the Company to its independent auditors for tax services or non-audit services during 2020 and 2019.
### PART IV
ITEM 15.
(a)(3)
Exhibits
31.1
31.2
Signatures
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
And advances made by officers and directors of the Company and its subsidiaries, unsecured and due on demand. As of June 30, 2020 and 2019, the balances were $1,696,274 and $890,897, respectively.
NOTE 8
LOANS AND PROMISSORY NOTES
As of June 30, 2020, the Company had $395,950 in short-term notes payable consisting of $352,200 regular short-term notes and $43,750 SBA loan with $1,259,094 in accrued and unpaid interest.
As of June 30, 2020, the principal balance of the outstanding convertible notes was $272,207 with total derivative liabilities of $310,870.
NOTE 9
### PAYROLL TAX LIABILITIES
As of June 30, 2020, payroll tax liabilities were $5,747.
NOTE 10
128, Earnings per Share. Basic and diluted weighted average numbers of shares for the year ended June 30, 2020 were the same since the inclusion of Common stock equivalents is anti-dilutive.
NOTE 11
I. Class A Preferred Stock
### A.
1. c.
2. Designation.
). c. Number of Shares. The number of shares of authorized shall be two hundred million (200,000,000) shares. c.
3. Designation.
). b. Number of Shares. The number of shares of authorized shall be fifty million (50,000,000) shares. c.
4. Designation.
). b. Number of Shares. The number of shares of authorized shall be one hundred ninety-nine million (199,000,000) shares. c.
### B. CONVERSION
1.
2.
3. Conversion of of PHI Group, Inc.
The entire of PHI Group, Inc. (i.e.
4. Conversion Shares.
Where
CS
:
Amount of CS
=
OIP + AUD or alternatively, of a subsidiary of PHI Group, Inc.s.
VCP
OIP
:
AUD
:
Accrued and Unpaid Dividends.
VCP
:
### C. REDEMPTION RIGHTS
D. LIQUIDATION
As used herein,
### Permitted Merger
E. RANK
F. VOTING RIGHTS
1.
shall have no voting rights.
### G. PROTECTION PROVISIONS
H. MISCELLANEOUS
1. Status of Redeemed Stock
2. Lost or Stolen Certificates
### Waiver
### Notices
If to the Corporation:
PHI GROUP, INC.
30 N Gould Street, Suite R
### Sheridan, WY 82801
Facsimile: 702-472-8556
II. Class B Preferred Stock
1. b. Number of Shares: The number of shares of uthorized will be one million (1,000,000) shares.
c. Dividend: None d.
NOTE 12.
in the State of Nevada.
NOTE 13.
### STOCKHOLDERS EQUITY
As of June 30, 2020, the total number of authorized capital stock of the Company consisted of Forty Billion shares of voting Common Stock with a par value of $0.001 per share and Five Hundred Million shares of Preferred Stock with a par value of $0.001 per share.
Treasury Stock
The balance of treasury stock as of June 30, 2020 was 487,767 shares valued at $44,170 based on cost basis.
### Common Stock
During the fiscal year ended June 30, 2020, the Company issued the following amounts of its Common Stock:
As of June 30, 2020, there were 13,232,408,755 shares of the Companys common stock issued and outstanding.
### Preferred Stock
As of June 30, 2020, the following amounts of Preferred Stock were issued and outstanding:
Class A Series II Preferred Stock: 10,000,000 shares.
NOTE 14
As of June 30, 2020 the Company has not issued any stock in lieu of cash under this plan.
NOTE 15
### OTHER INCOME (EXPENSE)
Net Other Income (Expense) for the fiscal year ended June 30, 2020 consists of the following:
NOTE 16
The Company recognized $210,000 in salaries for the President and Secretary of the Company during the year ended June 30, 2020.
NOTE 17
### INCOME TAXES
Through June 30, 2020, the Company incurred net operating losses for tax purposes of approximately $44,010,352.
NOTE 18
CONTRACTS AND COMMITMENTS
B244952.
Stock Market.
Though this transaction was technically closed on September 28, 2018, the Company did not recognize the operations of Vinafilms JSC in its consolidated financial statements as of June 30, 2020 and will only do so when a GAAP audit of Vinafilms JSC financial statements is conducted and completed by a PCAOB-registered auditing firm.
b. c. d.
NOTE 19
As shown in the accompanying consolidated financial statements, the Company has accumulated deficit of $44,010,352 and total stockholders deficit of $7,059,790 as of June 30, 2020.
NOTE 20
### SUBSEQUENT EVENTS
These financial statements were approved by management and available for issuance on June 22, 2021.
1. ISSUANCES OF COMMON STOCK OF THE COMPANY
From July 01, 2020 through June 22, 2021, the Company issued the following amounts of stock to holders of convertible promissory notes and shareholders:
*
Note: On April 01, 2019, the Company amended the Promissory Notes dated 6/09/2008, 7/08/2008, 7/09/2008, 7/30/2008 and 02/05/2010 consisting of $262,500 of the principal amounts and $941,071.23 of accrued and unpaid interest totaling $1,203,571.23 with Luan Ngo (Holder) to allow Holder to convert any portions of these Notes, plus any accrued and unpaid interest thereof into shares of Common Stock of the Company, par value $0.001, at a conversion price equal to twenty-five percent (25%) discount to the ten-day average closing price of the Companys Common Stock immediately prior to such conversion request, as authorized by the Corporate Resolutions of the Companys Board of Directors dated March 12, 2012, June 06, 2012 and November 02, 2012, which have not been repealed or amended and are still in full force and effect. On April 02, 2021, Holder submitted a Conversion Notice to convert the total balance of $262,500 of the referenced promissory notes, as amended on April 01, 2019, plus $941,071.23 of accrued and unpaid interest totaling $1,203,571.23 into 614,851,203 shares of common stock under Rule 144, Section 4(a)(1). These shares were issued to Holder on April 21, 2021.
2.
AGREEMENTS
As of June 22, 2021, Tecco Group has paid four billion Vietnam Dong (VND) towards the total agreed amount.
LTD.
Ltd. Ltd. As of June 22, 2021, Phat Van Hung has not made any payment towards the agreed amount.
As of June 22, 2021, Xuan Quynh LLC has not made any payment towards the agreed amount.
dollars.
On June 04, 2021 the Company incorporated Asia Diamond Exchange, Inc., a Wyoming corporation, ID number 2021-001010234, as the holding companyto develop the Asia Diamond Exchange in Vietnam.
ITEM 9.
None.
### ITEM 9A. CONTROLS AND PROCEDURES
Based upon their evaluation, our management (including our Chief Executive Officer) concluded that our disclosure controls and procedures were not effective as of June 30, 2019, based on the material weaknesses defined below.
Under the supervision and with the participation of management, including its principal executive officer and principal financial officer, the Companys management assessed the design and operating effectiveness of internal control over financial reporting as of June 30, 2019 based on the framework set forth in
Based on this assessment, management concluded that the Companys internal control over financial reporting was not effective as of June 30, 2020.
and
Management believes that despite our material weaknesses set forth above, our consolidated financial statements for the fiscal year ended June 30, 2020 are fairly stated, in all material respects, in accordance with US GAAP.
### ITEM 9B. OTHER MATTERS
None.
PART III
ITEM 10.
The following table sets forth certain information as of June 30, 2020, with respect to the Directors and Executive Officers of the Company.
NAME
AGE
### POSITION
Henry D. Fahman
### Tina T. Phan
Treasurer, Secretary
Tam T. Bui
### Director
Frank Hawkins
Director
Henry D. Mr. Mr. Mr.
Mr. One of Mr. Mr.
in Miami. Mr.
Tina T. from 1995 to 2000. Mrs. Phan holds a B.S. Currently Mrs. Mrs. Phan is the wife of Henry D. Fahman.
### ITEM 11. EXECUTIVE COMPENSATION
Except for any non-cash payments mentioned in this report, there was no monetary compensation paid to any officers of the Company during the year ended June 30, 2020.
ITEM 12.
The following table sets forth information regarding the beneficial ownership of shares of the Companys common stock as of June 22, 2021 (25,845,790,085 shares issued, by (i) all shareholders known to the Company to be beneficial owners of more than 5% of the outstanding common stock; and (ii) all directors and executive officers of the Company, and as a group:
(1)
(2)
(3)
(4)
**: Less than 0.1%.
ITEM 13.
Henry D.
Henry D.
### ITEM 14.
Audit Fees
Madhava Rao, an independent accountancy firm, are $19,500 for the audit of the Companys annual consolidated financial statements for the fiscal year ended June 30, 2020 and for the review of unaudited financial statements for the quarters ending 9/30/2020, 12/31/2020 and 3/31/2021.
### All Other Fees
The Company did not pay M.S. Madhava Rao any non-audit fees for fiscal year 2020 or 2019.
PART IV
ITEM 15.
### Financial Statements
EXHIBIT INDEX
Exhibit No.
Exhibit Description
2.1
2.2
3.1
3.2
3.3
3.4
Certificate of
3.5
Bylaws, as amended (6)
4.1
4.2
(6)
4.3
(6)
4.4
(6)
4.5
4.6
4.7
(6)
5.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
Benatone Deed (2)
10.9
10.10
10.11
10.12
(6)
10.13
(6)
10.14
(6)
10.15
(6)
10.16
(6)
10.17
(5)
10.18.1
(5)
10.18.2
Amendment to (5)
10.18.3
Amendment to (5)
10.18.4
Amendment to (5)
10.18.5
Amendment to (5)
10.19
(5)
10.20
(5)
10.21
(5)
10.22
(5)
10.23
dated October 18, 2001. (6)
10.24
(6)
10.25
(6)
10.26
10.27
(7)
10.28
(7)
10.29
(7)
10.30
10.31
10.32
(8).
10.33
(8)
10.34
10.35
10.36
(8).
10.37
(8).
10.38
10.39
10.40
(8)
10.41
10.42
10.43
16.1
17.1
Resignation of Nhi T.
17.2
17.3
Resignation of Gene M.
17.4
17.5
17.6
17.7
17.8
17.9
17.10
17.11
17.12
17.13
17.14
17.15
17.16
17.17
17.18
Closing Memorandum for the
EXHIBIT INDEX (CONTINUED).
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE<|endoftext|>General partner of the 100% owner of ICS Opportunities and may also be deemed to have shared voting control and investment discretion over securities owned by ICS Opportunities. Millennium Group Management LLC, a Delaware limited liability company (Millennium Group Management), is the managing member of Millennium Management and may also be deemed to have shared voting control and investment discretion over securities owned by Integrated Core Strategies and Riverview Group. Millennium Group Management is also the general partner of Millennium International Management and may also be deemed to have shared voting control and investment discretion over securities owned by ICS Opportunities. The managing member of Millennium Group Management is a trust of which Israel A. Englander, a United States citizen (Mr.Englander), currently serves as the sole voting trustee. Therefore, Mr.Englander may also be deemed to have shared voting control and investment discretion over securities owned by Integrated Core Strategies, Riverview Group and ICS Opportunities. The address of the principal business office of each of Integrated Core Strategies, Riverview Group, ICS Opportunities, Millennium International Management, Millennium Management, Millennium Group Management, and Mr.Englander is 666 Fifth Avenue, New York, New York 10103.
ENPC Holdings, LLC, our sponsor, and our executive officers and directors are deemed to be our promoters as such term is defined under the federal securities laws.
### Changes in Control
None.
ITEM13.
### Founder Shares and Performance Shares
On June22, 2020, the Sponsor paid for certain offering costs on behalf of us in exchange for (i) 737,789 ClassF common stock in exchange for a capital contribution of $ 6,250, or approximately $0.008 per share and (ii) 1,200 shares of ClassB common stock (the Performance Shares) for a capital contribution of $18,750, or $15.625 per share. On
September17, 2020, we effected a 1 for 1.2 forward stock split that increased the outstanding ClassF common stock from 690,000 shares to 828,000 shares.
### Private Placement CAPS
If any of our officers or directors becomes aware of a partnering transaction opportunity that falls within the line of business of any entity to which he or she has then-current fiduciary or contractual obligations, he or she will honor his or her fiduciary or contractual obligations to present such partnering transaction opportunity to such entity. We may pursue an affiliated joint acquisition opportunity with one or more affiliates of Solamere and/or one or more investors in Solamere or one of its affiliates, to which an officer or director has a fiduciary or contractual obligation.
Pursuant to a letter agreement with our sponsor, we have agreed not to enter into a definitive agreement regarding a partnering transaction without the prior written consent of our sponsor.
No compensation of any kind, including finders and consulting fees, will be paid by the Company to our sponsor, executive officers and directors, or any of their respective affiliates, for services rendered prior to or in connection with the completion of a partnering transaction. However, these individuals will be reimbursed for any out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential partnering candidates and performing due diligence on suitable partnering transactions.
### Related Party Loans
On June22, 2020, the Sponsor agreed to loan us up to an aggregate of $300,000 pursuant to an unsecured promissory note (the Note) to cover expenses related to the initial public offering.
### Registration and Stockholder Rights
The holders of the founder shares, Performance Shares, private placement warrants and private placement shares underlying Private Placement CAPS and Private Placement CAPS that may be issued upon conversion of Working Capital Loans (and any shares of ClassA common stock into which such securities may convert and that may be issued upon exercise of private placement warrants) are entitled to registration rights pursuant to a registration rights agreement, requiring the Company to register such securities for resale. In addition, the holders have certain piggy-back registration rights with respect to registration statements filed subsequent to the completion of the Partnering Transaction.
The audit committee of our board of directors will adopt a policy setting forth the policies and procedures for its review and approval or ratification of related party transactions. A related party transaction is any consummated or proposed transaction or series of transactions: (i)in which the Company was or is to be a participant; (ii)the amount of which exceeds (or is reasonably expected to exceed) the lesser of $120,000 or 1% of the average of the Companys total assets at year end for the prior two completed fiscal years in the aggregate over the duration of the transaction (without regard to profit or loss); and (iii)in which a related party had, has or will have a direct or indirect material interest. Related parties under this policy will include: (i)our directors, nominees for director or executive officers; (ii)any record or beneficial owner of more than 5% of any class of our voting securities; (iii)any immediate family member of any of the foregoing if the foregoing person is a natural person; and (iv)any other person who maybe a related person pursuant to Item 404 of Regulation
S-K under the Exchange Act. Pursuant to the policy, the audit committee will consider (i)the relevant facts and circumstances of each related party transaction, including if the transaction is on terms comparable to those that could be obtained in arms-length dealings with an unrelated third party, (ii)the extent of the related partys interest in the transaction, (iii)whether the transaction contravenes our code of ethics or other policies, (iv)whether the audit committee believes the relationship underlying the transaction to be in the best interests of the Company and its shareholders and (v)the effect that the transaction may have on a directors status as an independent member of the board and on his or her eligibility to serve on the boards committees. Management will present to the audit committee each proposed related party transaction, including all relevant facts and circumstances relating thereto. Under the policy, we may consummate related party transactions only if our audit committee approves or ratifies the transaction in accordance with the guidelines set forth in the policy. The policy will not permit any director or executive officer to participate in the discussion of, or decision concerning, a related person transaction in which he or she is the related party.
### Director Independence
We have four independent directors as defined in the NYSE rules and applicable SEC rules prior to completion of our initial public offering.
ITEM14.
Audit Fees
The aggregate fees billed by WithumSmith+Brown, PC for audit fees, inclusive of required filings with the SEC for the period from June22, 2020 (inception) to ended December31, 2020 and of services rendered in connection with our initial public offering, totaled $86,000.
### Audit-Related Fees
During the period from June22, 2020 (inception) to December31, 2020, we did not pay WithumSmith+Brown, PC any audit-related fees.
### Tax Fees
During the period from June22, 2020 (inception) to December31, 2020, we did not pay WithumSmith+Brown, PC any tax fees.
All Other Fees
During the period from June22, 2020 (inception) to December31, 2020, we did not pay WithumSmith+Brown, PC any other fees.
### Pre-Approval
Policy
PART IV
ITEM15.
(a)
10-K:
(1)
### Financial Statements
The financial statements are found in a separate section of this Report starting on pages
F-1.
F-1.
(2)
There are no financial statement schedules filed as part of this Report, since the required information is included in the financial statements, including the notes thereto, included in Item 8.
(3)
### Exhibits
Exhibit
No.
Description
3.1
Amended and Restated Certificate of Incorporation (2)
3.2
First Amendment to Amended and Restated Certificate of Incorporation (3)
3.3
Amended and Restated Bylaws (2)
4.1
Form of Specimen CAPS
TM
Certificate (1)
4.2
Form of Specimen ClassA Common Stock Certificate (1)
4.3
Form of Specimen Warrant Certificate (1)
4.4
Warrant Agreement dated September15, 2020 between Continental Stock Transfer& Trust Company and the Company (2)
4.5
Amendment No.1 to Warrant Agreement dated March24, 2021 between Continental Stock Transfer & Trust Company and the Company (3)
4.6
Description of Registrants Securities (4)
10.1
Investment Management Trust Agreement between Continental Stock Transfer& Trust Company and the Company (2)
10.2
Registration and Stockholder Rights Agreement dated September 15, 2020 between the Company, the Sponsor and certain other security holders named therein (2)
10.3
Private Placement CAPS
TM
Purchase Agreement dated September 15, 2020 between the Company and the Sponsor (2)
10.4
Administrative Services Agreement dated September15, 2020 between the Company and the Sponsor (2)
10.5
Letter Agreement between the Company and the Sponsor and each of the Companys directors and officers (2)
10.6
Form of Indemnity Agreement (1)
10.7
Promissory Note issued to ENPC Holdings, LLC. (1)
31.1
13a-14(a) or Rule
15d-14(a).*
32.1
13a-14(b) or Rule
15d-14(b) and 18 U.S.C. 1350**
101.INS
XBRL Instance Document
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
*
Filed herewith.
**
Furnished herewith.
(1)
S-1, filed with the SEC on September14, 2020.
(2)
8-K, filed with the SEC on September21, 2020.
(3)
8-K, filed with the SEC on March, 25, 2021.
(4)
ITEM16.
FORM
10-K
### SUMMARY
Not applicable.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Company, certain subsidiaries of the Company, Bank of America, N.A., as administrative agent, and the other agents and various lenders party hereto (incorporated by reference to Exhibit 10.11 to ACCO Brands Corporation's Annual Report on Form 10-K filed with the SEC on February 27, 2017 (File No. 001-08454))
10.2
First Amendment to the Third Amended and Restated Credit Agreement, dated as of July 26, 2018, among the Company, certain subsidiaries of the Company, Bank of America, N.A., as administrative agent and the other agents and various lenders party hereto (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on October 30, 2018 (File No. 001-08454))
10.3
Second Amendment to Third Amended and Restated Credit Agreement, dated as of May 23, 2019, among the Company, certain subsidiaries of the Company, Bank of America, N.A., as administrative agent, and the other lenders party thereto. (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on May 23, 2019 (File No. 001-08454))
10.4
Third Amendment to Third Amended and Restated Credit Agreement, dated as of May 1, 2020, among the Company, certain subsidiaries of the Company, Bank of America, N.A., as administrative agent, and the other lenders party thereto. (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on May 1, 2020 (File No. 001-08454))
10.5
Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of November 10, 2020, among the Company, certain subsidiaries of the Company, Bank of America, N.A., as administrative agent, and the other lenders party thereto. (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on November 12, 2020 (File No. 001-08454))
### EXHIBIT INDEX
Executive Compensation Plans and Management Contracts
10.6
ACCO Brands Corporation Executive Severance Plan (effective December 1, 2007) (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on November 29, 2007 (File No. 001-08454))
10.7
Form of Indemnification Agreement (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on December 24, 2008 (File No. 001-08454))
10.8
Amended and Restated ACCO Brands Deferred Compensation Plan for Non-Employee Directors, effective December 14, 2009 (incorporated by reference to Exhibit 10.41 to ACCO Brands Corporation's Annual Report on Form 10-K filed with the SEC on February 26, 2010 (File No. 001-089454))
10.9
2011 Amended and Restated ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on May20, 2011 (File No. 001-08454
))
10.10
Amendment of 2011 Amended and Restated ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on April 24, 2012 (File No. 001-08454))
10.11
Amendment of the ACCO Brands Corporation Executive Severance Plan, adopted as of October23, 2012 (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on October 31, 2012 (File No. 001-08454))
10.12
Amendment to Deferred Compensation Plan for Non-Employee Directors, effective January 1, 2014 (incorporated by reference to Exhibit 10.15 to ACCO Brands Corporation's Annual Report on Form 10-K filed with the SEC on February 25, 2014 (File No. 001-089454))
10.13
Form of 2011 Amended and Restated Incentive Plan Directors Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.16 to ACCO Brands Corporation's Annual Report on Form 10-K filed with the SEC on February 25, 2014 (File No. 001-089454))
10.14
Form of Non-qualified Stock Option Agreement under the 2011 Amended and Restated Incentive Plan (incorporated by reference to Exhibit 10.2 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on March 10, 2014 (File No. 001-08454))
10.15
Second Amendment of 2011 Amended and Restated ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.4 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on April 30, 2014 (File No. 001-08454))
10.16
ACCO Brands Corporation Incentive Plan, which is an amendment and restatement of the Amended and Restated ACCO Brands Corporation 2011 Incentive Plan, as amended (incorporated by reference to Exhibit 4.4 to ACCO Brands Corporation's Registration Statement on Form S-8 filed with the SEC on May 12, 2015 (File No. 001-08454))
10.17
Form of Directors Restricted Stock Unit Award Agreement under the ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on May 18, 2015 (File No. 001-08454))
10.18
Form of Restricted Stock Unit Award Agreement under the ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.2 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on May 18, 2015 (File No. 001-08454))
10.19
Form of Performance Stock Unit Award Agreement under the ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.3 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on May 18, 2015 (File No. 001-08454))
### EXHIBIT INDEX
10.20
Form of Nonqualified Stock Option Award Agreement under the ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.4 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on May 18, 2015 (File No. 001-08454))
10.21
Form of Executive Officer Restricted Stock Unit Award Agreement under the ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on May 9, 2017 (File No. 001-08454))
10.22
ACCO Brands Corporation Executive Severance Plan, as amended and restated effective January 1, 2019 (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Current Report on Form 8-K filed with the SEC on October 22, 2018 (File No. 001-09454))
10.23
ACCO Brands Corporation Nonqualified Deferred Compensation Plan (incorporated by reference to Exhibit 10.26 to ACCO Brands Corporation's Annual Report on Form 10-K filed with the SEC on February 27, 2019 (File No. 001-09454))
10.24
2019 ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 99 to the Companys Registration Statement on Form S-8 filed with the SEC on May 21, 2019)
10.25
Form of Directors Restricted Stock Unit Award Agreement under the 2019 ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.3 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on July 31, 2019 (File No. 001-08454))
10.26
Form of Restricted Stock Unit Award Agreement under the 2019 ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.4 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on July 31, 2019 (File No. 001-08454))
10.27
Form of Performance Stock Unit Award Agreement under the 2019 ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.5 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on July 31, 2019 (File No. 001-08454))
10.28
Form of Nonqualified Stock Option Award Agreement under the 2019 ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.6 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on July 31, 2019 (File No. 001-08454))
10.29
Form of Nonqualified Stock Option Award Agreement under the 2019 ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.1 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on May 5, 2020 (File No. 001-08454))
10.30
Form of Nonqualified Stock Option Award Agreement - Non-U.S.Employees under the 2019 ACCO Brands Corporation Incentive Plan (incorporated by reference to Exhibit 10.2 to ACCO Brands Corporation's Quarterly Report on Form 10-Q filed with the SEC on May 5, 2020 (File No. 001-08454))
10.31
ACCO Brands Corporation Deferred Compensation Plan for Non-Employee Directors Restated Effective December 3, 2019 (incorporated by reference to Exhibit 10.31 to ACCO Brands Corporation's Annual Report on Form 10-K filed with the SEC on February 27, 2020 (File No. 001-08454))
Other Exhibits
21.1
23.1
Consent of KPMG LLP
24.1
Power of attorney
31.1
Certification of the Chief Executive Officer pursuant to Section302 of the Sarbanes-Oxley Act of 2002*
### EXHIBIT INDEX
31.2
Certification of the Chief Financial Officer pursuant to Section302 of the Sarbanes-Oxley Act of 2002*
32.1
Certification of the Chief Executive Officer pursuant to Section906 of the Sarbanes-Oxley Act of 2002*
32.2
Certification of the Chief Financial Officer pursuant to Section906 of the Sarbanes-Oxley Act of 2002*
101.INSInline XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document
101.SCHInline XBRL Taxonomy Extension Schema Document
101.CALInline XBRL Taxonomy Extension Calculation Linkbase Document
101.DEFInline XBRL Taxonomy Extension Definition Linkbase Document
101.LABInline XBRL Taxonomy Extension Label Linkbase Document
101.PREInline XBRL Taxonomy Extension Presentation Linkbase Document
104Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)
*Filed herewith.<|endoftext|>$786,000.
Our Chief Executive Officer and Hong Long, from time to time, have provided advances to us for working capital purposes. The advances are short-term in nature, non-interest bearing, unsecured and payable on demand. As of December 31, 2020, we owed nil to our Chief Executive Officer and Hong Long, respectively.
On July 31, 2012, the Company entered into a lease for office space with Ping Lin, spouse of the Companys CEO (the Office Lease). Pursuant to the Office Lease, the annual rent is RMB 84,000 (approximately US$12,200) and the renewed Office Lease expired on July 31, 2021. For the year ended December 31, 2020, rent expense related to the Office Lease amounted to approximately US$12,200.
During the year ended December 31, 2020, we purchased fuel, freight, fishing nets and other on-board consumables from Honglong Ocean Fishery Co., Ltd, Zhiyan Lin and Huna Lin of approximately $2,001,000, $3,000 and $11,280,000, respectively.Zhiyan Lin is a shareholder of Pingtan Fishing, and Huna Lin is an immediate family of Zhuyan Lin.
During the year ended December 31, 2020, we purchased vessel maintenance service from Zhiyan Lin of approximately $7,000, respectively.
During the year ended December 31, 2020, we purchased storage and transportation service from Fujian Jingfu Ocean Fishery Development Co., Ltd. of approximately and $707,000, respectively.
During the year ended December 31, 2020, we purchased frozen shrimp from Global Deep Ocean of approximately $17,187,000, respectively.
In December 2015, we entered into a pledge contract with The Export Import Bank of China pursuant to which we pledged 12 fishing vessels with carrying amounts of approximately US$3,622,000, as collateral to secure Hong Longs $1,380,000 in long-term loans from the financial institution, which are due on November 28, 2021. In December 2019, we entered into another pledge contract with the Fujian Haixia Bank pursuant to which we pledged 1 fishing vessels with carrying amounts of approximately US$6,500,000, as collateral to secure Hong Longs $15,300,000 in short-term loans from the financial institution, which are due on December 31, 2021.
In March 2018, we entered into a pledge contract with The Export Import Bank of China pursuant to which we pledged 11 fishing vessels with carrying amounts of approximately US$384,000, as collateral to secure Global Deep Oceans $16,900,000 in long-term loans from the financial institution, which are due on September 21, 2025. In September 2020, we entered into a pledge contract with The Export Import Bank of China pursuant to which we pledged 11 fishing vessels with carrying amounts of approximately US$19,900,000, as collateral to secure Global Deep Oceans $76,600,000 in long-term loans from the financial institution, which are due on March 8, 2022.
From time to time, our related parties provided guarantee and collateral for our bank borrowings (See Note 11 Bank Loans to Notes to Consolidated Financial Statements).
### Director Independence
In accordance with the current listing standards of the NASDAQ Stock Market, our Board, on an annual basis, affirmatively determines the independence of each director or nominee for election as a director. Our Board has determined that, three of our current directors, Zengbiao Zhu, Lin Lin, and XingAn Lin, are independent directors as defined under the NASDAQ Rules, constituting a majority of independent directors of our Board as required by the corporate governance rules of NASDAQ. In making these determinations, our Board has concluded that none of those members has an employment, business, family or other relationship which, in the opinion of our Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.
ITEM 14.
### Change in Independent Auditor
The Company previously engaged BDO China Shu Lun Pan Certified Public Accountants LLP (BDO) as the Company's independent registered public accounting firm for the fiscal year ended December 31, 2019. BDO has served as the independent auditor for the Company since September 1, 2014. As reported in the Companys Current Report on Form 8-K filed on June 3, 2021 (Auditor 8-K), on May 31, 2021 (the Effective Date), BDO tendered its resignation to the audit committee as the Companys independent registered public accounting firm effective immediately.
BDO issued the independent registered public accounting firm reports on the Companys consolidated financial statements for the fiscal years ended December 31, 2019 and 2018.
The audit reports of BDO on the Companys consolidated financial statements for each of the two most recent fiscal years ended December 31, 2019 and 2018 did not contain any adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope, or accounting principles.
During the Companys two most recent fiscal years ended December 31, 2019 and 2018, and the subsequent interim period through the Effective Date, there were no disagreements (as defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) between the Company and BDO on any matters of accounting principles or practices, financial statement disclosure, or auditing scope or procedure which, if not resolved to the satisfaction of BDO, would have caused BDO to make reference to the subject matter of the disagreement in connection with BDOs reports on the Companys consolidated financial statements for 2019 and 2018 or in BDOs report on the consolidated financial statements for 2020, which had not been completed at the time of the resignation.
During the Companys two most recent fiscal years ended December 31, 2019 and 2018, there were no reportable events (as defined in Item 304(a)(1)(v) of Regulation S-K and the related instructions). However, during the subsequent interim period through the Effective Date, there were reportable events in connection with BDOs audit of the Companys consolidated financial statements for the fiscal year ended December 31, 2020, which had not been completed as of the Effective Date. At the time of the Effective Date, BDO was in the process of: (a) evaluating the Companys ability to continue as a going concern, (b) assessing the Companys prepayment to Huanghai Shipbuilding Co., Ltd. for the ongoing construction of a krill fishing vessel, and (c) evaluating the Companys conclusion that the Global Deep Ocean is an equity method investee.
In addition, the Companys management identified a material weakness in internal controls over financial reporting involving a failure to maintain a sufficient complement of personnel with an appropriate level of experience and training in the application of U.S. GAAP commensurate with its financial reporting requirements, as of December 31, 2020.
The Company provided BDO with a copy of the disclosures in the Auditor 8-K prior to filing the Auditor 8-K with the SEC. The Company requested that BDO furnish it with a letter addressed to the SEC stating whether BDO agrees with the statements made by the Company regarding BDO in the Auditor 8-K and, if not, stating the respects in which it does not agree. A copy of BDOs letter dated June 3, 2021 to the SEC is filed as Exhibit 16.1 to the Auditor 8-K.
On May 31, 2021, the Companys board of directors approved the appointment of Wei, Wei & Co, LLP (WW) as the Companys new independent registered public accounting firm effective as of May 31, 2021 to serve as the Companys auditor for the fiscal year ended December 31, 2020.
The following is a summary of the fees billed to the Company by its principal independent registered accounting firm for professional services rendered for the years ended December 31, 2020 and 2019 (in US dollars):
*
The amount represents auditors fee related to BDO China. WWs audit fee for audit of year 2020 amounting USD 438,000 were billed and paid by installment during the year 2021.
Audit Fees consisted of the aggregate fees billed for professional services paid for the audit of our annual financial statements and the reviews of the financial statements included in our Forms 10-Q and for any other services that were normally provided in connection with our statutory and regulatory filings or engagements.
Audit Related Fees consisted of the aggregate fees billed for professional services rendered for assurance and related services that were reasonably related to the performance of the audit or review of our financial statements and were not otherwise included in Audit Fees.
Tax Fees consisted of the aggregate fees billed for professional services rendered for tax compliance, tax advice and tax planning. Included in such Tax Fees were fees for preparation of our tax returns and consultancy and advice on other tax planning matters.
All Other Fees consisted of the aggregate fees billed for products and services provided and not otherwise included in Audit Fees, Audit Related Fees or Tax Fees.
In accordance with its policies and procedures, our Board of Directors pre-approved the audit and non-audit service performed by BDO and WW for our consolidated financial statements as of and for the year ended December 31, 2020.
PART IV
### ITEM 15.
(1) Financial Statements:
Financial statements are shown in the Index to Financial Statements included in Part II, Item 8 of this Annual Report on Form 10-K.
(3) Exhibits
*
Filed herewith
**
Pingtan Marines Annual Report on Form 10-K for the year ended December 31, 2020, at the time of filing with the Securities and Exchange Commission, shall modify and supersede all prior documents filed pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934 for purposes of any offers or sales of any securities after the date of such filing pursuant to any Registration Statement or Prospectus filed pursuant to the Securities Act of 1933, which incorporates by reference such Annual Report on Form 10-K.
### ITEM 16. FORM 10-K SUMMARY
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
This Amendment No.1 on Form10-K/A to the Annual Report of First United Corporation on Form10-K for the year ended December31, 2020, which was initially filed with the Securities and Exchange Commission (the SEC) on March25, 2021 (the Original Report), is being filed to amend Item 5 of PartII of the Original Report. Pursuant to Rule12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by First United Corporations principal executive officer and principal financial officer are filed or furnished with this Amendment No.1 asExhibits 31.1, 31.2, and 32.1, so Item 15 of PartIV of the Original Report has also been amended.
Except as expressly provided above, this Amendment No.1 on Form10-K/A speaks as of the date of the Original Report and First United Corporation has not updated the disclosures contained in any item thereof to speak as of a later date.All information contained in this Amendment No.1 on Form10-K/A is subject to updating and supplementing as provided in First United Corporations reports filed with the SEC subsequent to the date on which the Original Report was filed.
PARTII
ITEM 5.
Shares of the Corporations common stock are listed on the NASDAQ Global Select Market under the symbol FUNC. As of February28, 2021, the issued and outstanding shares of Common Stock were held by 1,240 shareholders of record.
The ability of the Corporation to declare dividends is limited by federal banking laws and Maryland corporation laws. Subject to these and the terms of its other securities, including the TPS Debentures, the payment of dividends on the shares of common stock and the amounts thereof are at the discretion of the Corporations board of directors. In November2010, the Corporations board of directors suspended the declaration and payment of cash dividends. This suspension was lifted in 2018. Cash dividends are typically declared on a quarterly basis. When paid, dividends to shareholders are dependent on the ability of the Corporations subsidiaries, especially the Bank, to declare dividends to the Corporation. Like the Corporation, the Banks ability to declare and pay dividends is subject to limitations imposed by federal and Maryland banking and Maryland corporation laws. A complete discussion of these and other dividend restrictions is contained in Item 1A of PartI of this annual report under the heading
Risks Relating to First United Corporations Securities and in Note 23 to the Consolidated Financial Statements, both of which are incorporated herein by reference. Accordingly, there can be no assurance that dividends will be declared on the shares of common stock in any future fiscal quarter.
The Corporations Board of Directors periodically evaluates the Corporations dividend policy, both internally and in consultation with the Federal Reserve.
### Issuer Repurchases
The following table provides information about shares of common stock purchased by or on behalf of First United Corporation and its affiliated purchases (as defined in Rule10b-18 promulgated under the Exchange Act) during the three-month period ended December31, 2020:
Notes:
(1)
The shares were purchased in open-market transactions using assets of the First United Corporation noncontributory defined benefit pension plan (the Pension Plan). On August 28, 2020, the Corporation publicly-announced the authorization of the Pension Plan to use its assets to purchase up to 150,000 shares of the Companys common stock in open market transactions or privately-negotiated transactions at such times, in such amounts, at such prices and upon such other terms as are determined in the discretion of Pension Plans administrator.
(2)
The Corporation's publicly announced November 19, 2019 authorization to repurchase up to 500,000 shares expired on November 19, 2020.
Pursuant to the SECs Regulation S-K Compliance and Disclosure Interpretation 106.01, the information required by this Item pursuant to Item 201(d)of Regulation S-K relating to securities authorized for issuance under the Corporations equity compensation plans is located in Item 12 of PartIII of this annual report and is incorporated herein by reference.
PARTIV
ITEM 15.
(a)(1), (2)and (c) Financial Statements.
Consolidated Statement of Financial Condition as of December31, 2020 and 2019
Consolidated Statement of Income for the years ended December31, 2020 and 2019
Consolidated Statement of Comprehensive Income for the years ended December31, 2020 and 2019
Consolidated Statement of Changes in Shareholders Equity for the years ended December31, 2020 and 2019
Consolidated Statement of Cash Flows for the years ended December31, 2020 and 2019
Notes to Consolidated Financial Statements for the years ended December31, 2020 and 2019
(a)(3)and (b) Exhibits.
The exhibits filed or furnished with this annual report are listed in the following ExhibitIndex.
### Exhibit
Description
3.1(i)
Amended and Restated Articles of Incorporation (incorporated by reference to Exhibit3.1 to First United Corporations Quarterly Report on Form10-Q for the period ended June30, 1998)
3.2(i)
Amended and Restated Bylaws (incorporated by reference to Exhibit3.2(i)to First United Corporations Annual Report on Form10-K for the year ended December31, 2007)
3.2(ii)
First Amendment to Amended and Restated Bylaws (incorporated by reference to Exhibit3.2(ii)to First United Corporations Annual Report on Form10-K for the year ended December31, 2007)
3.2(iii)
Second Amendment to Amended and Restated Bylaws (incorporated by reference to Exhibit3.2 to First United Corporations Current Report on Form8-K filed on February9, 2009)
3.2(iv)
Third Amendment to Amended and Restated Bylaws (incorporated by reference to Exhibit3.1 to First United Corporations Current Report on Form8-K filed on March27, 2020, Film No.20752016)
4.1
Letter Agreement, including the related Securities Purchase Agreement Standard Terms, dated January30, 2009 by and between First United Corporation and the U.S. Department of Treasury (incorporated by reference to Exhibit10.1 to First United Corporations Form8-K filed on February2, 2009)
4.2
Certificate of Notice, including the Certificate of Designations incorporated therein, relating to the Fixed Rate Cumulative Perpetual Preferred Stock, SeriesA (incorporated by reference Exhibit4.1 to First United Corporations Form8-K filed on February2, 2009)
4.3
Sample Stock Certificate for SeriesA Preferred Stock for the SeriesA Preferred Stock (incorporated by reference Exhibit4.3 to First United Corporations Form8-K filed on February2, 2009)
10.1
First United Bank& Trust Amended and Restated Defined Benefit Supplemental Executive Retirement Plan (incorporated by reference to Exhibit10.1 to First United Corporations Current Report on Form8-K filed on February1, 2019)
10.2
Formof Amended and Restated Participation Agreement under the Defined Benefit Supplemental Executive Retirement Plan (incorporated by reference to Exhibit10.2 to First United Corporations Current Report on Form8-K filed on February1, 2019)
10.3
Formof Endorsement Split Dollar Agreement between the Bank and each of William B. Grant, Robert W. Kurtz, Jeannette R. Fitzwater, Phillip D. Frantz, Eugene D. Helbig,Jr., Steven M. Lantz, Robin M. Murray, Carissa L. Rodeheaver, and Frederick A. Thayer,IV (incorporated by reference to Exhibit10.3 to First United Corporations Quarterly Report on Form10-Q for the period ended September30, 2003)
10.4
Amended and Restated First United Corporation Executive and Director Deferred Compensation Plan (incorporated by reference to Exhibit10.1 to First United Corporations Current Report on Form8-K filed on November24, 2008)
10.5
Formof Amended and Restated First United Corporation Defined Contribution SERP Agreement(incorporated by reference to Exhibit10.5 to First United Corporations annual report on Form10-K for the year ended December31, 2019)
10.6
Amended and Restated First United Corporation Change in Control Severance Plan (incorporated by reference to Exhibit10.5 to First United Corporations Current Report on Form8-K filed on June23, 2008)
10.7
Amended and Restated Agreement Under the First United Corporation Change in Control Severance Plan, dated as of January8, 2021 (incorporated by reference to Exhibit10.1 to First United Corporations Current Report on Form8-K filed on January8, 2021)
10.8
First United Corporation 2019 Equity Compensation Plan (incorporated by reference to Exhibit10.1 to First United Corporations Current Report on Form8-K filed on May21, 2019)
10.9
First United Corporation Long-Term Incentive Plan (incorporated by reference to Exhibit10.1 to First United Corporations Current Report on Form8-K filed on March16, 2020)
10.10
First United Corporation Short-Term Incentive Plan (incorporated by reference to Exhibit10.2 to First United Corporations Current Report on Form8-K filed on March16, 2020)
10.11
Formof Restricted Stock Unit Award Agreement (Performance-Vesting) (incorporated by reference to Exhibit10.1 to First United Corporations Current Report on Form8-K filed on March27, 2020, Film No.20747391)
10.12
Formof Restricted Stock Unit Award Agreement (Time-Vesting) (incorporated by reference to Exhibit10.2 to First United Corporations Current Report on Form8-K filed on March27, 2020, Film No.20747391)
Subsidiaries
*
23.1
Consent of Baker Tilly US, LLP,Independent Registered Public Accounting Firm
*
31.1
Certifications of Principal Executive Officer pursuant to Section302 of the Sarbanes-Oxley Act (filed herewith)
31.2
Certifications of Principal Financial Officer pursuant to Section302 of the Sarbanes-Oxley Act (filed herewith)
32.1
Certifications pursuant to Section906 of the Sarbanes-Oxley Act (furnished herewith)
101.INS
XBRL Instance Document
*
101.SCH
*
101.CAL
*
101.DEF
*
101.LAB
*
101.PRE
*
Cover pageinteractive data file (embedded within the iXBRL document)
*
Filed with the Original Report.<|endoftext|>Item 10.
Information about Executive Officers and Directors
STEWART WALLACH, age 69, is the Chief Executive Officer and President of the Company since April 23, 2007, a director of the Company since September 22, 2006, and the founder and Chief Executive Officer and Chairman of the Board of Capstone Industries, Inc., a wholly owned subsidiary and principal operating subsidiary of the Company, since September 20, 2006. Mr. Wallach is an American entrepreneur and has founded and operated a number of successful businesses over his 35-year career. Over the past 15 years, Mr. Wallach has been focused on technology-based companies in addition to consumer product businesses, the field in which he has spent most of his career. Prior to founding Capstone Industries, Inc., he sold Systematic Marketing, Inc., which designed, manufactured and marketed automotive consumer products to mass markets, to Sagaz Industries, Inc., a leader in these categories. He served as President of Sagaz Industries, Inc. for 10 years before forming Capstone Industries, Inc. In 1998, Mr. Wallach co-founded Examsoft Worldwide, Inc. ("Examsoft"), which developed and delivered software technology solving security challenges of laptop-based examinations for major educational institutions and state bar examiners. Mr. Wallach remained chairman of Examsoft until it was acquired in late 2009. Mr. Wallach has designed and patented a number of innovations over the span of his career and has been traveling to China establishing manufacturing and joint venture relationships since the early 1980s.
JAMES "GERRY" MCCLINTON, age 65. Mr. McClinton was appointed as a director of the Company on February 5, 2008. He is currently the Interim Chief Financial Officer and Chief Operating Officer of the Company and its Capstone Industries, Inc. subsidiary. His prior work experience is: (a) President of Capstone Industries, Inc. (2005 -2007); (b) General Manager of Capstone Industries, Inc. (2000-2005); (c) Held senior officer positions with Sagaz Industries, Inc. (1990-2000); and (d) Chief Financial Officer, Firedoor Corporation, a national manufacturer of security and fire doors to the construction industry (1980-1990). Mr. McClinton received a designation from The Royal Institute of Cost and Management Accountants ("I.C.M.A."), University of Northern Ireland, Belfast, United Kingdom.
DR. JEFFREY POSTAL, age 64, has served as a director of the Company since January of 2004. Dr. Postal presently is a businessman and entrepreneur in the Miami, Florida region. Dr. Postal owns, founded or funded numerous successful businesses over the last few years, including but not limited to: Sportacular Art, a company that was licensed by the National Football League, Major League Baseball and National Hockey League to design and manufacture sports memorabilia for retail distribution in the U.S; Co-Owner of Natures Sleep, LLC, a major distributor of Visco Memory Foam mattresses, both nationally and internationally; Dr. Postal is a Partner in Social Extract, LLC, a Social Media company offering consulting services to many major companies in the U.S.; Dr. Postal is the principal investor of Postal Capital Funding, LLC, a private investment fund whose mission is to find undervalued/under capitalized companies and extend funding to them in exchange for equity and/or capital consideration; and Dr. Postal is the founder of Datastream Card Services, a company that provides innovative billing solutions to companies conducting business on the internet.
LARRY SLOVEN, age 71. Mr. Sloven was appointed as a director on May 3, 2007. A U.S. Citizen, Mr. Sloven resided in Hong Kong for over 18 years. He is a member of the American Chamber of Commerce in Hong Kong. He just finished a five-year term as a Director of the American Club in Hong Kong and chaired the Development Committee which was responsible for re-engineering five major multi-million dollar re-development projects for the premier club in Asia. Mr. Sloven's company was a product development and purchasing agent for Capstone Companies, Inc., and was the purchasing agent for Dick's Sporting Goods, Inc. chain. He also helped develop private label hardware and accessory line for now defunct Circuit City, Inc. and a camcorder and cellular phone battery line for Spectrum Brands, Inc. (formerly, "Rayovac Corp."). In 1993, Mr. Sloven helped set up a joint venture factory producing cellular battery packs for AT&T along with the first cellular alkaline battery pack for Duracell. He participated in the outsourcing of the production of the one-hour NMH-fast charger for the Duracell Corporation. In the mid 1990's, he helped set up a joint venture with Rayovac Corp. and the largest alkaline consumer battery factory in China. Mr. Sloven also assisted in the outsourcing of video games for Atari, Inc., and arranging for Chinese manufacture of The Stanley Works' garage door motors and products.
JEFFREY GUZY: Mr. Guzy, aged 69, was appointed to the Company's Board of Directors on May 3, 2007. He serves as Chairman and Chief Executive Officer of CoJax Oil and Gas Corporation, an SEC reporting company. Mr. Guzy is an outside director of Leatt Corporation, an SEC reporting company. Mr. Guzy served, from October 2007 to August 2010 as President of Leatt Corporation. Mr. Guzy has a MBA in Strategic Planning and Management from The Wharton School of the University of Pennsylvania; a M.S. in Systems Engineering from the University of Pennsylvania; a B.S. in Electrical Engineering from Penn State University; and a Certificate in Theology from Georgetown University. Mr. Guzy has served as an executive manager or consultant for business development, sales, customer service and management in the telecommunications industry, specifically, with IBM Corp., Sprint International, Bell Atlantic Video Services, Loral CyberStar and FaciliCom International. Mr. Guzy has also started his own telecommunications company providing Internet services in Western Africa. He serves as an independent director and chairman of the audit committee of Capstone Industries (OTC.CAPC) a public corporation. He serves as an independent director and chairman of the audit committee of Purebase Corporation (OTC.PUBC) a public company.
There are no agreements or understandings for any of our executive officers, directors or significant employees to resign at the request of another person and no officer or director is acting on behalf of nor will any of them act at the direction of any other person.
Qualifications, Attributes, Skills and Experience Represented on the Board
The Board has identified particular qualifications, attributes, skills and experience that are important to be represented on the board as a whole, in light of our current needs and business priorities. The Board believes that each director is a recognized person of high integrity with a proven record of success in his field. Each director demonstrates innovative thinking, familiarity with and respect for corporate governance requirements and practices, an appreciation of multiple cultures and a commitment to the business and operations of the Company. In addition to the foregoing qualifications, the Board has assessed the intangible qualities including the director's ability to ask difficult questions and, simultaneously, to work collegially. The Board also considers diversity of age, cultural background and professional experiences in evaluating candidates for Board membership. Diversity is important because a variety of points of view contribute to a more effective decision-making process.
Set forth below is a tabular disclosure summarizing some of the specific qualifications, attributes, skills and experiences of our directors.
### Name
Title
Qualifications
### Stewart Wallach
Chairman of the Board and Chief Executive Officer
He has extensive experience in executive management of companies.
He has experience in growing operations and merger and acquisition transactions.
He has extensive experience in arranging the design, development and production of products in foreign nations for shipment and sale in the U.S. and conducting business abroad.
His experience provides insight for the implementation of effective operational, financial and strategic leadership of the Company.
### James McClinton
Chief Financial Officer and Director
He has a degree in accounting.
He has prior practical experience in corporate accounting.
He has executive operational experience, including acting as a chief financial officer.
His invaluable experience in finance and accounting provides insight for the implementation of effective operational, financial and strategic leadership of the Company.
### Jeffrey Postal
Director
He has extensive experience in investing in companies.
He has extensive experience in management and business,
He has experience growing a company and mergers and acquisitions.
### Larry Sloven
Director
He has extensive experience in conducting business in foreign nations and international business, especially China and Southeast Asia, and he brings this valuable experience to the Board.
### Jeffrey Guzy
Director
Through his MBA in Strategic Planning & Management and his knowledge of U.S. capital markets, Mr. Guzy provides invaluable guidance and perspective to the Board.
He serves and has served as an officer and director of public companies and worked for large corporations in business development. He brings this experience to the Board.
The Board of Directors approved the annual grant of stock options to Jeffrey Guzy and Jeffrey Postal, both directors of Company, and Aimee Gaudet Brown, an officer of the Company. For each of the stock options: the grant date is August 5, 2020, the exercise period is August 6, 2020 to August 5, 2021 and the exercise price is $0.435 per share. The Form 5 for Mr. Postal and Ms. Gaudet Brown were filed on 31 March 2021 and the Form 5 for Mr. Guzy was filed on April 8, 2021.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
And credits are expected to be used. This assessment requires estimates as to future operating results, as well as an evaluation of the effectiveness of the Companys tax planning strategies. These estimates are made on an ongoing basis based upon the Companys business plans and growth strategies in each market and consequently, future material changes in the valuation allowance are possible.
The principal considerations for our determination that performing procedures relating to gross deferred tax assets and related valuation allowances is a critical audit matter are the significant judgment by management when developing the estimates as to future operating results. This in turn led to a high degree of auditor judgment, subjectivity, and effort in performing procedures as a result of the size and complexity of the legal entity structure, data utilized in the calculation of temporary differences and the realizability of net operating loss and credit carryforwards. Also, the evaluation of audit evidence available to support the assessment of whether or not a valuation allowance is required is complex and involved significant auditor effort.
### Table of contents
These procedures included testing the effectiveness of controls relating to gross deferred tax assets and related valuation allowances. These procedures also included, among others (i) evaluating managements assessment of the realizability of deferred tax assets on a jurisdictional basis, (ii) evaluating assumptions related to the future operating results and related expected utilization for net operating loss and credit carryforwards, (iii) testing the underlying data and mathematical accuracy of temporary differences and the data utilized in the assessment of the realizability of net operating loss and credit carryforwards, and (iv) testing the appropriateness of the tax rates used when temporary differences reverse.
### Tampa, Florida
March 10, 2021, except for the effects of the corrections to the out-of-period misstatement disclosure included in Note 1 to the consolidated financial statements and the matter discussed in the penultimate paragraph of Managements Report on Internal Control Over Financial Reporting, as to which the date is August 5, 2021
We have served as the Companys auditor since 1995.
Item 9A. Controls and Procedures.
At the time of the Original Filing, the Companys principal executive officer and principal financial officer had concluded that as of December 26, 2020 the disclosure controls and procedures were not effective at the reasonable assurance level due to a material weakness in internal control over financial reporting at the Tupperware Mexico location. However, management has subsequently determined that material weaknesses in internal control over financial reporting existed related to the control environment at the Mexico operations and that there was override by local management of certain internal controls at the Fuller Mexico location that existed as of December 26, 2020.
Following identification of the material weaknesses and prior to filing this amended Annual Report on Form 10-K/A, the Company completed substantive procedures for the year ended December 26, 2020. Based on these procedures, management believes that its consolidated financial statements included in this Form 10-K/A have been prepared in accordance with GAAP. The Companys Chief Executive Officer and Chief Financial Officer have certified that, based on their knowledge, the financial statements, and other financial information included in this Form 10-K/A, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this Form 10-K/A.
Restated Management's Report on Internal Control Over Financial Reporting
The Company is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) under the Exchange Act. Internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Projections of any evaluation of effectiveness for future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Under the supervision of and with the participation of the Companys management, the effectiveness of its internal control over financial reporting as of December 26, 2020 was assessed using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in
Internal ControlIntegrated Framework
(2013).
### Table of contents
In connection with this assessment, in fiscal year 2020 the Company identified material weaknesses in the control environment at its Mexico operations; specifically, with respect to information technology general controls, the Company did not maintain effective user access controls to ensure appropriate segregation of duties and to adequately restrict user and privileged access to financial applications and data to appropriate Company personnel at the Tupperware Mexico location; and there was override by local management of certain internal controls at the Tupperware Mexico and Fuller Mexico locations resulting in immaterial misstatements in net sales, accounts receivable, inventories, and accrued liabilities for the fiscal years ended December 2020, 2019 and 2018, and each of the interim periods within those annual periods. Additionally, it is reasonably possible that these material weaknesses could result in a material misstatement to the Companys annual or interim consolidated financial statements that would not be prevented or detected. Based on these material weaknesses, management concluded that as of December 26, 2020, the Companys internal control over financial reporting was not effective.
In Managements Report on Internal Control Over Financial Reporting included in the Original Filing, management previously concluded that the Company did not maintain effective internal control over financial reporting as of December 26, 2020 due to the material weakness previously disclosed. Subsequent to the filing date of the Original Filing, additional material weaknesses in the Companys internal control over financial reporting were identified, which also existed as of December 26, 2020, related to the control environment at its Mexico operations; specifically, there was override by local management of certain internal controls at the Fuller Mexico location.
The effectiveness of the Company's internal control over financial reporting as of December 26, 2020 has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, which appears in Item 8. of this amended Annual Report on Form 10-K/A.
### Remediation
As previously described in Part II, Item 9A of the Original Filing, management has been implementing measures designed to ensure that the control deficiencies contributing to the material weaknesses are remediated, such that these controls are designed, implemented, and operating effectively. In 2020, the Company completed the following remedial actions: (i) terminated the individuals involved in the override, (ii) provided enhanced Code of Conduct training to all employees at the Mexico operations, and (iii) changed the organizational reporting structure at its Mexico operations. The Company will continue to enhance its control environment with the following actions: (i) provide training on the Corporate Accounting Manual to all employees in finance and operations for Mexico operations; (ii) hire a Director of Compliance, located in Mexico, to oversee the Code of Conduct Program globally; (iii) initiate a Finance Transformation (FIT) initiative in Mexico, including both Fuller Mexico and Tupperware Mexico, to continue to improve the control environment; (iv) monitor user access controls to ensure that access to financial applications and data is adequately restricted and segregated to appropriate personnel; (v) maintain controls to ensure that privileged access is timely and appropriately granted; (vi) execute a training program addressing information technology general controls, specifically educating control owners concerning the principles and requirements of controls, related to provisioning and monitoring of user access; (vii) enhance information technology governance over review of user access; and (viii) provide quarterly reporting on the remediation measures to the Audit Committee of the Board of Directors.
The Company believes that these actions, and additional actions to be taken, will remediate the material weaknesses and that the measures described above will remediate the control deficiencies identified and strengthen the Companys internal control over financial reporting. As the Company continues to evaluate and work to improve its internal control over financial reporting, management may determine to take additional measures to address control deficiencies or determine to modify certain of the remediation measures described above. The material weaknesses will not be considered remediated, however, until the applicable controls operate for a sufficient period of time and management has concluded, through testing, that these controls are operating effectively. The Company expects that the remediation of these material weaknesses will be completed prior to the end of fiscal year 2021.
There have been no changes in the Company's internal control over financial reporting during the Company's fiscal quarter ended December 26, 2020 that have materially affected or are reasonably likely to materially affect its internal control over financial reporting, as defined in Rule 13a-15(f) promulgated under the Exchange Act.
Table of contents
### PART IV
Item 15.<|endoftext|>With his retirement: (a) retirement payments of $100,000 per year ("
Retirement Compensation
"); (b) the then applicable regular non-employee director fees ("
### Regular Fees
"), currently $55,000 per year, and a supplemental Board fee of $50,000 per year ("
Supplemental Fees
"); and (c) the same medical, dental, eye and life insurance benefits he received for the year ended December 31, 2019, under an arrangement whereby Mr. Bartels shared part of the cost of Medicare and supplemental health benefits, currently valued at approximately $15,588 per year ("
### Medical Benefits
");
Bartels.
Such compensation, fees and benefits (in whole or in part) may be extended beyond the Five-Year Period in the discretion of the Board.The Company recognized $700,000 of retirement benefit expense during the year ended December 31, 2020, representing the present value of the future payments due Mr. Bartels.
Bartels.
Mr. Brown (together with Mr. Bartels), which group most recently acted to (1) unilaterally select, appoint and elect Panagiotis ("Panos") N. Brown to serve on the board of directors of SGRP, effective as of April 24, 2020 (see
Information In Connection With Appointment Of Robert G. Brown As A Director
, above).
Brown
The Governance Committee re-evaluated the independence of Peter W. Brown and determined, effective July 16, 2020, that Peter W. Brown could be considered independent except for Related Party Matters and that he would not be voting on Related Party Matters. A "Related Party Matter" means anything directly or indirectly related to any payment to or for, or any transaction, settlement or litigation with:(i) Robert G. Brown, William H. Bartels, any of their respective family members, or any company or other business or entity (other than the Corporation) directly or indirectly owned or controlled by any one or more of Mr. Brown, Mr. Bartels or their respective family members; (ii) Mr. Jonathan Dagues Martins, any of his family members, or any company or other business or entity directly or indirectly owned or controlled by any one or more of Mr. Martins or his family members; (iii) Earth Investments, LLC, or any other company or other business or entity directly or indirectly owned or controlled by any one or more of Peter W. Brown or his family members; or (iv) SGRP Brasil Participaes Ltda., SPAR Brasil Servios de Merchandising e Tecnologia S.A., or any of the Corporation's other Brazilian subsidiaries.
Peter W. Brown was appointed as a Director on the Board as of May 3, 2018, replacing Mr. Robert G. Brown upon his retirement from the Board and Company at that date. Peter W. Brown has been re-determined to be an independent director except for Related Party Matters (see above). However, Peter W. Brown remains an affiliate and related party respecting SGRP and was proposed by Mr. Robert G. Brown to represent the Brown family interests. He worked for and is a stockholder of SAS (see above) and certain of its affiliates, he is the nephew of Mr. Robert G. Brown, SPAR BSMTand owns EILLC, which owns 10% interest in the SGRP's Brazilian subsidiary.
In November, 2020, SPAR BSMT hired Peter W. Brown as a consultant to provide Brazil acquisition strategy services to SPAR BSMT, with a one-time initiation fee of $30,000 Brazilian Real and a monthly fee of $15,000 Brazilian Real effective December 1, 2020, and on January 6, 2021, he resigned from the Audit Committeeas he was no longer sufficiently independent for membership on the Audit Committee in accordance with Nasdaq Rules.
Other Related Party Transactions and Arrangements:
In July 1999, SMF, SBS and SIT entered into a perpetual software ownership agreement providing that each party independently owned an undivided share of and has the right to unilaterally license and exploit certain portions of the Company's proprietary scheduling, tracking, coordination, reporting and expense software (the "
### Co-Owned Software
") are co-owned with SBS and Infotech and each entered into a non-exclusive royalty-free license from the Company to use certain "SPAR" trademarks in the United States (the "
Licensed Marks
").
### Item 14.
The aggregate fees billed to us for professional accounting services by BDO USA, LLP, including the audit of our annual financial statements for the years ended December 31, 2019 and 2018, are set forth in the table below (amounts in thousands):
For purposes of the preceding table professional fees are classified as follows:
### Audit fees
These are fees for professional services performed for the audit of our annual financial statements and the required review of quarterly financial statements and other procedures performed by the independent registered public accounting firm in order for them to be able to form an opinion on our consolidated financial statements. These fees also cover services that are normally provided by independent registered public accounting firm in connection with statutory and regulatory filings or engagements.
Audit-related fees
These are fees for assurance and related services that traditionally are performed by independent registered public accounting firm that are reasonably related to the performance of the audit or review of the financial statements. Audit related fees in the above table represent fees for a 401(k) audit and fees for a stand-alone audit of a subsidiary requested by the Company.
### Tax fees
These are fees for all professional services performed by professional staff in our independent registered public accounting firm's tax division, except those services related to the audit of our financial statements. These include fees for tax compliance, tax planning and tax advice, including federal, state and local issues. Services may also include assistance with tax audits and appeals before the IRS and similar state and local agencies, as well as federal, state and local tax issues related to due diligence.
Since the Audit Committee's formation in 2003, as required by applicable law and Nasdaq rules, each audit-related or tax or other non-audit service performed by the Company's independent registered public accounting firm either (i) was approved in advance on a case-by-case basis by SGRP's Audit Committee, or (ii) fit within a pre-approved "basket" of audit-related or tax and other non-audit services of limited amount, scope and duration established in advance by SGRP's Audit Committee. In connection with the standards for independence of the Company's independent registered public accounting firm promulgated by the SEC, the Audit Committee considers (among other things) whether the provision of such services would be compatible with maintaining the independence of the Company's independent registered public accounting firm.
PART IV
15.
### Amended Exhibits
Exhibit
Number
Description
3.3
Amended and Restated By-Laws of SPAR Group, Inc., as adopted, restated, effective and dated
January 18, 2019 and as further amended through February 22, 2021 (as filed herewith
).
3.4
Amended and Restated Charter of the Audit Committee of the Board of Directors of SPAR Group, Inc., adopted, restated, effective and Dated (as of) August 12, 2020 (as filed herewith).
3.5
Charter of the Compensation Committee of the Board of Directors of SPAR Group, Inc., Amended, Restated and Dated (as of)August 11, 2020 (as filed herewith).
3.6
Charter of the Governance Committee of the Board of Directors of SPAR Group, Inc., Dated (as of) April 23, 2020 and As Amended through March 18, 2021
(as filed herewith).
3.7
[Intentionally Deleted]
3.8
[Intentionally Deleted]
3.9
[Intentionally Deleted]
10.25
Executive Officer Severance Agreement by and among SPAR Group, Inc., SPAR Marketing Force, Inc. and Fay DeVriese, dated as of August 4, 2020 (Incorporated by reference to SGRP's Current Report on Form 8-K dated August 19, 2020, as filed with the SEC on August 19, 2020).
10.52
Waiver and Modification Agreement entered in as of January 4, 2021, and effective as of December 31, 2020 (the "Modification Agreement"), among North Mill Capital, LLC ("NM"), SPAR Group, Inc. ("SGRP") and certain of its direct and indirect subsidiaries in the United States and Canada, namely SPAR Marketing Force, Inc. ("SMF"), and SPAR Canada Company ("SCC"), and SPAR Canada, Inc., SPAR Acquisition, Inc., SPAR Assembly and Installation, Inc., and SPAR Trademarks, Inc. (together with SGRP, each a "NM Guarantor" and collectively, the "NM Guarantors", and together with SMF and SCC, each a "NM Loan Party" and collectively, the "NM Loan Parties" (incorporated by reference to SGRP's Current Report on Form 8-K as filed with the SEC on January 11, 2021).
10.53
US$14.5 million Amended and Restated Revolving Credit Master Promissory Note executed and delivered by SMF to NM and dated as of December 31, 2020 (incorporated by reference to SGRP's Current Report on Form 8-K, as filed with the SEC on January 11, 2021).
10.54
CDN$1.5 million Amended and Restated Revolving Credit Master Promissory Note executed and delivered by SCC to NM and dated as of December 31, 2020 (incorporated by reference to SGRP's Current Report on Form 8-K, as filed with the SEC on January 11, 2021).
31.1
Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (as filed herewith).
31.2
Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (as filed herewith).
32.1
Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (as filed herewith).
32.2
Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (as filed herewith).
### Please see SGRP's
Financial Statement Schedules in Part IV in
### SGRP's Annual Report o n
Form 10-K for the year ended December 31, 2020 ("
Form 10-K
"), originally filed with the Securities and Exchange Commission (the "
SEC
") on March 31, 2021, which are incorporated herein by reference.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Or more outside directors, who shall be appointed to a fully functioning audit committee, will remedy the lack of a functioning audit committee and a lack of a majority of outside directors on our Board.
We will work as quickly as possible to implement these initiatives; however, the lack of adequate working capital and positive cash flow from operations will likely slow this implementation.
There have been no changes in internal controls over the financial reporting that occurred during the fiscal fourth quarter, that have materially affected, or are reasonably likely to materially affect our internal controls over financial reporting.
Item 9B. Other Information.
None.
-8-
### PART III
Item 10.
Biographical information regarding the Officers and Directors of the Company, who will continue to serve as Officers and Directors of the Company are provided below:
World Scan Project, Inc.
### World Scan Project Corporation
Ryohei Uetaki
Mr. Ryohei Uetaki graduated from the Osaka Gakuin University Faculty of Commerce in 1997. In 2000, he incorporated Zero Step Ltd and assumed the position of president. In 2006, Zero Step Ltd ceased all operations. In 2006, Mr. Uetaki joined EAZ Holdings Ltd as a director in charge of the companys marketing efforts. Mr. Uetaki remained as director of EAZ until 2007. From 2007 to 2019, he was engaged as an independent business consultant. From 2017 to 2018, he served as an associated professor of Keio University Graduate School. On October 25, 2019, he was appointed as the president, CEO and director of World Scan Project, Inc. On January 10, 2020, he was appointed as the CEO and member of SKYPR LLC. Inc. On January 22, 2020, he was appointed as the president, CEO and director of World Scan Project Corporation. Currently, he serves as the officer and director of World Scan Project, Inc., World Scan project Corporation and SKYPR LLC.
Due to Mr. Uetakis diverse business experience, the Board has determined it is in the best interest of the company to appoint him as the companys Chief Executive Officer, Chief Financial Officer, President, Treasurer and Director.
### Yasumasa Ichikawa
Mr. Yasumasa Ichikawa graduated from Kyoto Saga University of Arts in 2015. After graduation, he was engaged as an independent computer graphic designer. On November 18, 2019, he was appointed as Chief Technology Officer (CTO) of World Scan Project, Inc. On January 22, 2020, he was appointed as the CTO of World Scan Project Corporation and World Scan Project Corporation. Currently, he serves as the CTO of World Scan Project, Inc. and World Scan project Corporation.
Due to Mr. Ichikawas technological experience, the Board has determined it is in the best interest of the company to appoint him as the companys Chief Technology Officer.
### Ethics
endeavors to provide full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with the Securities and Exchange Commission (the "SEC") and in other public communications made by the Company; The Company has not formally adopted a written code of business conduct and ethics that governs the Company's employees, officers and directors as the Company is not required to do so.
In lieu of an Audit Committee, the Company's board of director(s) (the "Board of Directors" or "Board"), is responsible for reviewing and making recommendations concerning the selection of outside auditors, reviewing the scope, results and effectiveness of the annual audit of the Company's financial statements and other services provided by the Company's independent public accountants. The Board of directors, the Chief Executive Officer and the Chief Financial Officer of the Company review the Company's internal accounting controls, practices and policies.
### Committees of the Board
Our sole director believes that it is not necessary to have such committees, at this time, because the director(s) can adequately perform the functions of such committees.
Our director has determined that we do not have a board member that qualifies as an audit committee financial expert as defined in Item 407(D)(5) of Regulation S-K, nor do we have a Board member that qualifies as independent as the term is used in Item 7(d)(3)(iv)(B) of Schedule 14A under the Securities Exchange Act of 1934, as amended, and as defined by Rule 4200(a)(14) of the FINRA Rules.
In addition, we believe that retaining an independent director who would qualify as an " audit committee financial expert
" would be overly costly and burdensome and is not warranted in our circumstances given the stage of our development and the fact that we have not generated any positive cash flows from operations to date.
Our officers and sole director have not been involved in or a party in any of the following events or actions during the past ten years:
1.
2.
3. or
4.
5.
6.
7.
or
8.
Code of Ethics
The Board of Director(s) evaluated the business of the Company and the number of employees and determined that since the business is operated by a small number of persons, general rules of fiduciary duty and federal and state criminal, business conduct and securities laws are adequate ethical guidelines.
### Shareholder Proposals
The Board of Director(s) believes that, given the stage of our development, a specific nominating policy would be premature and of little assistance until our business operations develop to a more advanced level. The Board of Director(s) will assess all candidates, whether submitted by management or shareholders, and make recommendations for election or appointment.
A shareholder who wishes to communicate with our Board of Director(s) may do so by directing a written request addressed to our sole Director Ryohei Uetaki, at the address appearing on the first page of this Information Statement.
Section 16(a) of the Exchange Act requires the Companys executive officers, directors and persons who beneficially own more than ten percent of a registered class of the Companys equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of the Companys common stock. Such officers, directors and persons are required by SEC regulation to furnish the Company with copies of all Section 16(a) forms that they file with the SEC.
Based solely on a review of the copies of such forms that were received by the Company, or written representations from certain reporting persons that no Form 5s were required for those persons, the Company is not aware of any failures to file reports or report transactions in a timely manner during the Companys fiscal year ended October 31, 2020.
### Procedure for Nominating Directors
In 2020, we have not made any material changes to the procedures by which security holders may recommend nominees to our Board of Directors.
Family Relationships
There are no family relationships among our directors, executive officers or persons nominated to become executive officers or directors.
During the past ten (10) years, none of our directors, persons nominated to become directors, executive officers, promoters or control persons was involved in any of the legal proceedings listen in Item 401 (f) of Regulation S-K.
Arrangements
There are no arrangements or understandings between an executive officer, director or nominee and any other person pursuant to which he was or is to be selected as an executive officer or director.
-9-
### Item 11. Executive Compensation.
The table below summarizes all compensation awarded to, earned by, or paid to our named executive officer(s) and director(s) for the year ended October 31, 2020 and for the year ended October 31, 2019 This in relation to the Company, World Scan Project, Inc.
(1)
(2)
### Option/SAR Grants in Last Fiscal Year
None.
None.
###
Not applicable.
Employment Agreements of our Officers and Directors
None.
Director Compensation
Our Board of Directors reserves the right to pay our executive or any future executives a salary, and/or issue them shares of common stock issued in consideration for services rendered and/or to award incentive bonuses which are linked to our performance, as well as to the individual executive officers performance.
Incentive Bonus
-8-
Item 12.
As of our fiscal year end, the Company has 10,647,350 shares of common stock and 10,000,000 shares of Series A preferred stock issued and outstanding..
*The table below is as of October 31, 2020.
* Our Series A Preferred Stock currently has no voting rights. Currently we have 10,000,000 shares of Series A Preferred Stock issued and outstanding of which Ryohei Uetaki owns and controls 100% of through his ownership interests in SKYPR LLC.
(1) Ryohei Uetaki currently serves as our Chief Executive Officer, Chief Financial Officer, President, Director, Secretary, and Treasurer. Ryohei Uetaki owns 100% of the membership interests in SKYPR LLC., a Delaware Limited Liability Company which owns 7,000,000 shares of our common stock and 10,000,000 shares of our Series A Preferred Stock. The table above includes the share ownership of SKYPR LLC with Ryohei Uetaki collectively, in the row for Mr. Uetaki.
In addition, shares are deemed to be beneficially owned by a person if the person has the right to acquire shares (for example, upon exercise of an option or warrant) within 60 days of the date as of which the information is provided.
Item 13.
Pursuant to this agreement Mr. The Companys primary business focus is developing and manufacturing autonomous aerial vehicles such as, but not limited to, drones.
### Item 14.
Board of Directors Pre-Approval Process, Policies and Procedures
Our principal auditors have informed our sole director of the scope and nature of each service provided. With respect to the provisions of services other than audit, review, or attest services, our principal accountants brought such services to the attention of our sole director prior to commencing such services.
-9-
### PART IV
Item 15.<|endoftext|>[
Hamilton Lane Inc
]
### EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A (this Amendment) amends the Annual Report on Form 10-K of Hamilton Lane Incorporated (the Company) for the fiscal year ended March 31, 2021, originally filed with the Securities and Exchange Commission (the SEC) on May 27, 2021 (the Original Filing).
The Company is filing this Amendment to: (i) amend Item 9B of Part II to disclose information regarding compensatory awards to certain of the Companys named executive officers that was required to be disclosed on a Current Report on Form 8-K during the fourth quarter of the fiscal year covered by this Annual Report on Form 10-K, but which was not timely reported on a Form 8-K during that period; (ii) amend the Exhibit Index referenced in Item 15 of Part IV to add related Exhibits 10.32, 10.33 and 10.34; and (iii) update the Companys well-known seasoned issuer status as a result of the foregoing. This Amendment also contains currently dated certifications under the Sarbanes-Oxley Act of 2002, filed as exhibits 31.3, 31.4 and 32.
Pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, this Amendment contains only the changes noted above. Those sections or exhibits of the Original Filing that are unaffected by this Amendment (including the financial statements included in the Original Filing) are not included herein.
This Amendment continues to speak as of the date of the Original Filing, and the Company has not updated the disclosure contained herein to reflect events that have occurred since the filing of the Original Filing or modified those disclosures that may be affected by subsequent events. Accordingly, this Amendment should be read in conjunction with the Companys other filings made with the SEC subsequent to the filing of the Original Filing.
### PART II
Item9B. Other Information
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Compensatory Arrangements of Certain Officers.
In January 2021, Hamilton Lane Incorporated (the Company) closed an initial public offering (IPO) for a special purpose acquisition company, Hamilton Lane Alliance Holdings I, Inc. (HLAH). HLAH is sponsored by HL Alliance Holdings Sponsor LLC (the Sponsor), an indirect wholly-owned subsidiary of the Company. As part of HLAHs initial public offering, the Sponsor purchased 5,013,333 warrants from HLAH (the Warrants). Each Warrant entitles its holder to purchase one share of Class A common stock of HLAH, par value $0.0001 per share (each, a Share), at an exercise price of $11.50 per Share, subject to adjustment.
On March 3, 2021, the Compensation Committee of the Companys Board of Directors approved the transfer by the Sponsor of Warrants to certain employees of the Company as permitted transferees for services rendered in connection with HLAH, including the following named executive officers:
Subject to certain conditions, the Warrants become exercisable upon the later of: (i) the date that is 30 days after the date on which HLAH completes a merger or other business combination with a target company (a Business Combination); or (ii) the date that is 12 months from the date of the closing of the HLAH IPO, and terminating on the earliest to occur of: (x) the date that is five years after the date on which HLAH completes its initial Business Combination; or (y) the liquidation of HLAH if HLAH fails to complete a Business Combination. If HLAH does not complete a Business Combination within the prescribed period, the Warrants will expire worthless. The Warrants will generally be non-redeemable for cash and exercisable on a cashless basis so long as they are held by permitted transferees. Additionally, the Warrants may only be transferred to permitted transferees until 30 days after the completion of a Business Combination.
The foregoing description of the Warrants does not purport to be complete and is qualified in its entirety by reference to the: (i) Warrant Agreement, dated January 15, 2021, by and between HLAH and Continental Stock Transfer & Trust Company; (ii) Letter Agreement, dated January 15, 2021, among HLAH, the Sponsor and each of HLAHs officers and directors; and (iii) Form of Warrant Assignment and Transfer, which are each filed as exhibits to this Form 10-K/A and incorporated herein by reference as if fully set forth hereto.
### PART IV
Item 15.
1. All financial statements. See Index to Consolidated Financial Statements in Item 8 of this Form 10-K.
2. Financial Statement Schedules. Financial statement schedules are omitted as they are either not required or the information is otherwise included in the consolidated financial statements.
3. Exhibits. See Exhibit Index.
### Exhibit Index
Incorporated By Reference
Filed Herewith
Exhibit No.
### Description of Exhibit
Form
Exhibit
### Filing Date
File No.
3.1
Amended and Restated Certificate of Incorporation of Hamilton Lane Incorporated
8-K
3.1
3/10/17
001-38021
3.2
Amended and Restated Bylaws of Hamilton Lane Incorporated
10-K
3.2
6/27/17
001-38021
4.1
Description of Common Stock of Hamilton Lane Incorporated
10-K
4.1
5/30/19
001-38021
10.1
Fourth Amended and RestatedLimited Liability Company Agreement of Hamilton Lane Advisors,L.L.C., dated as of March 6, 2017, by and among Hamilton Lane Advisors, L.L.C. and its members
8-K
10.1
3/10/17
001-38021
10.2
Amendment No. 1 to the Fourth Amended and Restated Limited Liability Company Agreement of Hamilton Lane Advisors,L.L.C., dated as of February 26, 2018, by and among Hamilton Lane Advisors, L.L.C. and its members
S-1
10.2
2/26/18
333-223235
10.3
Amendment No. 2 to the Fourth Amended and Restated Limited Liability Company Agreement of Hamilton Lane Advisors, L.L.C., dated as of June 13, 2018, by and among Hamilton Lane Advisors, L.L.C. and its members
10-K
10.3
6/14/18
001-38021
10.4
Tax Receivable Agreement, dated as of March 6, 2017, by and among Hamilton Lane Incorporated, Hamilton Lane Advisors, L.L.C., and each of the other persons and entities party thereto
8-K
10.2
3/10/17
001-38021
10.5
Amendment No. 1 to Tax Receivable Agreement, dated December 31, 2020, by and among Hamilton Lane Incorporated, Hamilton Lane Advisors, L.L.C. and each of the other persons and entities party thereto
10-Q
10.1
2/2/21
001-38021
10.6
Exchange Agreement, dated as of March 6, 2017, by and among Hamilton Lane Incorporated, Hamilton Lane Advisors, L.L.C., and each of the other persons and entities party thereto
8-K
10.3
3/10/17
001-38021
10.7
Amendment No. 1 to the Exchange Agreement, dated as of February 6, 2018, by and among Hamilton Lane Incorporated, Hamilton Lane Advisors, L.L.C., and each of the other persons and entities party thereto
10-Q
10.3
2/9/18
001-38021
10.8
Registration Rights Agreement, dated as of March 6, 2017, by and among Hamilton Lane Incorporated and the other persons party thereto
8-K
10.4
3/10/17
001-38021
Filed Herewith
Exhibit No.
### Description of Exhibit
Form
Exhibit
### Filing Date
File No.
10.24
First Amendment to Revolving Loan and Security Agreement, dated March 24, 2020, by and between First Republic Bank and Hamilton Lane Advisors, L.L.C.
8-K
10.3
3/25/20
001-38021
10.25
Second Amendment to Revolving Loan and Security Agreement, dated September 30, 2020, by and between First Republic Bank and Hamilton Lane Advisors, L.L.C.
10-Q
10.2
11/4/20
001-38021
10.26
Multi-Draw Term Loan and Security Agreement, dated March 24, 2020, by the between First Republic Bank and Hamilton Lane Advisors, L.L.C.
8-K
10.1
3/25/20
001-38021
10.27
First Amendment to Multi-Draw Term Loan and Security Agreement, dated September 30, 2020, by and between First Republic Bank and Hamilton Lane Advisors, L.L.C.
10-Q
10.3
11/4/20
001-38021
10.28
Second Amendment to Multi-Draw Term Loan and Security Agreement, dated April 22, 2021, by and between First Republic Bank and Hamilton Lane Advisors, L.L.C.
8-K
10.2
4/27/21
001-38021
10.29
Employment Agreement, effective as of May 23, 2016, by and between Hamilton Lane (Hong Kong) Limited and Juan Delgado-Moreira
10-K
10.12
6/27/17
001-38021
10.30
Offer Letter of Atul Varma, dated November 25, 2019
8-K
10.1
1/2/20
001-38021
10.31
Investment Agreement, dated March 29, 2021, by and between Russell Investments Group, Ltd. and Hamilton Lane Advisors, L.L.C.
10-K
10.31
5/27/21
001-38021
10.32
Warrant Agreement, dated January 15, 2021, by and between Hamilton Lane Alliance Holdings I, Inc. and Continental Stock Transfer & Trust Company (incorporated by reference to the listed filing of Hamilton Lane Alliance Holdings I, Inc.)
8-K
4.1
1/19/21
001-39884
10.33
Letter Agreement, dated January 15, 2021, among Hamilton Lane Alliance Holdings I, Inc., HL Alliance Holdings Sponsor LLC and each of the Companys officers and directors (incorporated by reference to the listed filing of Hamilton Lane Alliance Holdings I, Inc.)
8-K
10.1
1/19/21
001-39884
10.34
Form of Warrant Assignment and Transfe r
X
21.1
List of Subsidiaries
10-K
21.1
5/27/21
001-38021
Filed Herewith
Exhibit No.
### Description of Exhibit
Form
Exhibit
### Filing Date
File No.
23.1
10-K
23.1
5/27/21
001-38021
31.1
10-K
31.1
5/27/21
001-38021
31.2
10-K
31.2
5/27/21
001-38021
31.3
X
31.
X
Certifications of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C.
The following financial information from our Annual Report on Form 10-K for the year ended March 31, 2021 formatted in Inline XBRL (Extensible Business Reporting Language) includes: (i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Income, (iii) the Consolidated Statements of Comprehensive Income, (iv) the Consolidated Statements of Stockholders Equity, (v) the Consolidated Statements of Cash Flows and (vi) Notes to the Consolidated Financial Statements.
10-K
5/27/21
001-38021
X
Confidential information in this exhibit has been omitted.
Furnished herewith.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Over the applicable service period of the award
The service period is generally the vesting period. The following assumptions were used to calculate stock-based compensation expense for the year ended December 31, 2020:
1847 GOEDEKER INC.
NOTES TO
The following table sets forth stock-based compensation expense for the year ended December 31, 2020 and the four succeeding years:
Warrants
On August 4, 2020, the Company issued warrants for the purchase of 55,560 shares of common stock to affiliates of the representative in the IPO (the Underwriter Warrants)
The Underwriter Warrants are exercisable at any time and from time to time, in whole or in part, beginning on
January 26, 2021 until July 30, 2025, at a per share exercise price equal to $11.25.
On April 5, 2019, the Company issued to SBCC a ten-year warrant to purchase shares of the most senior capital stock of the Company equal to 5.0% of the outstanding equity securities of the Company on a fully-diluted basis for an aggregate price equal to $100. SBCC exercised this warrant for the purchase of 250,000 shares of common stock on August 4, 2020.
The following table presents activity relating to the Underwriter Warrants for theyear ended December 31, 2020:
The Company recognizes stock issuance expense for the Underwriter Warrants on a straight-line basis over the vesting period of the Underwriter Warrants. The following assumptions were used to calculate stock issuance expense for the year ended December 31, 2020:
### NOTE 18INCOME TAXES
As of December 31, 2020 and 2019, the Company had net operating loss carry forwards of approximately $15,002,557 and $1,593,680, respectively, that may be available to reduce future years taxable income indefinitely. Future tax benefits which may arise as a result of these losses have not been recognized in these consolidated financial statements, as their realization is determined not likely to occur and accordingly, the Company has recorded a valuation allowance for the deferred tax asset relating to these tax loss carry-forwards. The net change in the valuation allowance resulted in an increase of $4,377,815 and $709,582 for the years ended December 31, 2020 and 2019, respectively.
1847 GOEDEKER INC.
NOTES TO
The provision for Federal and state income tax consists of the following.
The cumulative tax effect at the expected rate of 25.7% and 25.7% of significant items comprising the Companys net deferred tax amount is as follows.
Due to the change in ownership provisions of the Tax Reform Act of 1986, net operating loss carry forwards incurred prior to 2018 for Federal income tax reporting purposes are subject to annual limitations. Should a change in ownership occur net operating loss carry forwards may be limited as to use in future years.
The components for the provision of income taxes include:
A reconciliation of the statutory US Federal income tax rate to the Companys effective income tax rate is as follows:
The major components of deferred tax assets and liabilities are as follows:
The Company accrues interest and penalties related to unrecognized tax benefits. The Company does not believe it has any unrecognized tax benefits for December 31, 2020 and 2019 that would have a material impact on the financial statements. The Companys income tax returns are open to examination by the Internal Revenue Service and various State jurisdictions.
1847 GOEDEKER INC.
NOTES TO
DECEMBER 31, 2020 AND 2019
### NOTE 19SUBSEQUENT EVENTS
In accordance with ASC 855-10, the Company has analyzed its operations subsequent to December 31, 2020 to the date these consolidated financial statements were issued and has determined that it does not have any material subsequent events to disclose in these consolidated financial statements, except as set forth below.
Lease Agreement
On January 13, 2021, the Company entered into a lease agreement with Westgate 200, LLC for a new premises in St. Charles, Missouri. The Company must also pay its 29% pro rata portion of the property taxes, operating expenses and insurance costs and is also responsible to pay for the utilities used on the premises.
The lease contains customary events of default, including (i) if the Company shall fail to pay rent within five (5) days after the due date, (ii) if the Company shall fail to observe or perform any other terms, covenants, conditions or provisions under the lease and fail to cure such default within thirty (30) days after written notice to the Company, (iii) if the Company fails to occupy all or any material portion of the lease premises for more than ninety (90) consecutive days, for reasons other than force majeure, and fails to pay all costs incurred by the landlord as a result of such failure to occupy, and other customary representations, warranties and covenants.
On March 19, 2021, the Company entered into a Securities Purchase Agreement (the Purchase Agreement) with two institutional investors (each, a Purchaser and together, the Purchasers), pursuant to which the Company issued to each Purchaser (i) a 10% OID senior secured promissory note in the principal amount of $2,750,000 (together, the Notes) and (ii) a four-year warrant to purchase 200,000 shares of the Companys common stock at an exercise price of $12.00, subject to adjustments, which may be exercised on a cashless basis (together, the Warrants), for a purchase price of $2,500,000 each, or $5,000,000 in the aggregate. After deducting a placement fee and other expenses, the Company received net proceeds of $4,590,000.
The Notes may be prepaid by the Company in whole or in part at any time or from time to time without penalty or premium upon at least five (5) days prior written notice, which notice period may be waived by the holder. In addition, if the Company issues and sells shares of its equity securities to investors on or before the maturity date in an equity financing with total gross proceeds of not less than $10,000,000 (excluding the conversion of the notes or other convertible securities issued for capital raising purposes), then the Company must repay the then-outstanding principal amount of the Notes and any accrued but unpaid interest.
The Notes are secured by a first priority security interest in all of the Companys assets and contain customary events of default. In addition, if the Company sells or grants any common stock or securities convertible into or exchangeable for common stock or grants any right to reprice such securities at an effective price per share that is lower than the then conversion price, the conversion price shall be reduced to such price, subject to certain exceptions set forth in the Notes.
1847 GOEDEKER INC.
NOTES TO
Notwithstanding the foregoing, the Company shall not effect any conversion of a Note, and a holder shall not have the right to convert any principal and/or interest of a Note, to the extent that after giving effect to the conversion the holder (together with the holders affiliates and any persons acting as a group together with the holder or any of the holders affiliates) would beneficially own over 4.99% of the number of shares of the common stock outstanding immediately after giving effect to the issuance of shares of common stock upon conversion of the Note. The holder may, upon not less than 61 days prior notice to the Company, increase or decrease such limitation, provided that such limitation in no event exceeds 9.99% of the number of shares of the common stock outstanding immediately after giving effect to the issuance of shares of common stock upon conversion of the Note.
The Purchase Agreement contains customary representations, warranties and covenants for a transaction of this type. Pursuant to the Purchase Agreement, the Purchasers were granted piggy-back registration rights with respect to the shares issuable upon conversion of the Notes and exercise of the Warrants. The Company also agreed that, until the date that no Purchasers own any securities, the Company will timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act. In addition, the Company agreed that, so long as any of the Notes remain outstanding, neither the Company, nor any subsidiary of the Company, shall, without each Purchasers written consent and subject to certain exceptions set forth in the Purchase Agreement: sell, lease or otherwise dispose of any significant portion of its assets outside the ordinary course of business; incur or suffer to exist or guarantee any indebtedness that is senior to or pari passu with (in priority of payment and performance) the Companys obligations under the Purchase Agreement except for non-equity linked indebtedness relating to the acquisition of inventory secured by certain liens; redeem, repurchase or otherwise acquire in any one transaction or series of related transactions any shares of capital stock of the Company or any warrants, rights or options to purchase or acquire any such shares, or repay any pari passu or subordinated indebtedness of the Company other than non-equity linked indebtedness relating to the acquisition of inventory secured by certain liens; lend money, give credit, make advances to or enter into any transaction with any person, firm, joint venture or corporation, including, without limitation, officers, directors, employees, subsidiaries and affiliates of the Company, except loans, credits or advances (i) in existence or committed on the closing date and which the Company has informed each Purchaser in writing prior to the closing date, (ii) in regard to transactions with unaffiliated third parties, made in the ordinary course of business, or (iii) in regard to transactions with unaffiliated third parties, not in excess of $50,000; or repay any affiliate (as defined in Rule 144) of the Company in connection with any indebtedness or accrued amounts owed to any such party.<|endoftext|>Override of controls. Projections of any evaluation of controls effectiveness to future periods are subject to risk.
### ITEM 9B. OTHER INFORMATION
Except as provided above, there is no information to be disclosed in a report on Form 8-K during the fourth quarter of the year covered by this Form 10-K that has not been previously filed with the Securities and Exchange Commission.
PART III
ITEM 10.
### Business Experience
Brett H. Pojunis,
President, Chief Executive Officer, Chief Financial Officer, Secretary, Treasurer, and Sole Director.
### Mr. Pojunis has served as the Companys
President, Chief Executive Officer, Chief Financial Officer, Secretary, Treasurer, and Sole Director since May 5, 2020.
### Since
2014, Mr. Pojunis has served on the Board of Directors of a publicly traded agriculture company whose holdings include Green Leaf Farms, a Las Vegas based Nevada licensed Cultivation and Production facility, and Green Leaf Farms International, a 33,600-acre cultivation farm in Jujuy, Argentina.
Prior to founding GPO Plus, Mr. Pojunis was one of the leaders of the Libertarian Party serving two-terms on the Libertarian National Committee (LNC), two terms as the Chairman of the Libertarian Party of Nevada, and was part of the senior staff for the 2016 Johnson/Weld Presidential campaign. Mr. Pojunis was very involved with state level legislation and advocacy which included Question 2 (in 2016) as well as an advisor to other statewide initiatives. Mr. Pojunis hosted and produced over 150 political events including the 2016 Libertarian Presidential Debate hosted by Penn Jillette (Penn & Teller) that included video questions from well-known celebrities which aired on TheBlaze Network. Mr. Pojunis was the creator of multiple politically focused events and conferences including LPEX the Libertarian Political Expo, a political conference for Libertarian political training, The Political Party, a non-partisan organization with the goal of getting more Nevadans involved in the political process with the well-known Meet the Candidates events series.
Mr. Pojunis has been involved in finance and the public markets since 1999. Mr. Pojunis has been a consultant to many start-up companies as well as publicly traded companies including high tech Internet to traditional brick and mortar companies. From 2002 through October 2009, Mr. Pojunis has been involved in nightlife and entertainment ventures bridging technology and social media with events. He has hosted over 650 events in Las Vegas as well as other markets throughout the United States. Mr. Pojunis served on the Board of Directors of multiple private and public companies and organizations. Mr. Pojunis has military training ranging from Civil Affairs Specialist (38A) to Combat Engineer (12B). While in the US ARMY he was awarded the Outstanding American award, twice. Mr. Pojunis is a fellow at The Leadership Institute which provides political activism training. Mr. Pojunis studied Environmental Liberal Arts at Green Mountain College and Entrepreneurship classes at the Simon School of Business at the University of Rochester. Mr. Pojunis attended elective International Business and Finance classes at Rochester Institute of Technology.
Our company believes that Mr. Pojunis business experience and industry expertise qualify him to serve as an officer of our company.
### Employment Agreements
Family Relationships
### Not Applicable
1.
2.
3.
4.
5. or
6.
Section 16(a) of the Securities Exchange Act of 1934 requires our executive officers and directors and persons beneficially owning more than ten percent of our equity securities to file initial reports of ownership and changes in ownership with the Securities and Exchange Commission. As of the end of our fiscal year ended April 30, 2020, our officers, directors and persons beneficially owning more than 10% were not subject to file these reports.
Code of Ethics
We have not adopted a code of ethics that applies to our principal executive officer, principal financial officer, principal accounting officer or controller. We only have one officer and director and do not believe we need a code of ethics at this time.
### Committees of the Board
Our company currently does not have nominating, compensation or audit committees or committees performing similar functions nor does our company have a written nominating, compensation or audit committee charter.
A shareholder who wishes to communicate with our board of directors may do so by directing a written request addressed to our President at the address appearing on the first page of this annual report.
### Board and Committee Meetings
Our board of directors held no formal meetings during the year ended April 30, 2021.
### ITEM 11. EXECUTIVE COMPENSATION
(b) each of our two most highly compensated executive officers who were serving as executive officers at the end of the years ended April 30, 2021 and 2020; and
(c) up to two additional individuals for whom disclosure would have been provided under (b) but for the fact that the individual was not serving as our executive officer at the end of the years ended April 30, 2019 and 2018, who we will collectively refer to as the named executive officers of our company, are set out in the following summary compensation table, except that no disclosure is provided for any named executive officer, other than our principal executive officers, whose total compensation did not exceed $100,000 for the respective fiscal year:
SUMMARY COMPENSATION TABLE
____________
(1)
Jian Han Chen resigned as President, Chief Executive Officer, Chief Financial Officer, Treasurer and Director on May 5, 2020.
(2)
Chun Hao Chen resigned as Secretary of the Company on May 5, 2020.
During the fiscal year ended April 30, 2021 we did not grant any stock options.
During our fiscal year ended April 30, 2021 there were no options exercised by our named officers.
ITEM 12.
The following table sets forth certain information concerning the number of shares of our common stock owned beneficially based on 20,470,066 shares issued and outstanding as of October 13,2021 by: (i) each person (including any group) known to us to own more than five percent (5%) of any class of our voting securities, (ii) members of our Board of Directors, and or (iii) our executive officers. Unless otherwise indicated, the stockholder listed possesses sole voting and investment power with respect to the shares shown.
____________
(1)
A beneficial owner of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or shares: (i) voting power, which includes the power to vote, or to direct the voting of shares;
Our company has not adopted any equity compensation plans and does not anticipate adopting any equity compensation plans in the near future. Notwithstanding the foregoing, because the company has limited cash resources at this time, it may issue shares or options to or enter into obligations that are convertible into shares of common stock with its employees and consultants as payment for services or as discretionary bonuses. The company does not have any arrangements for such issuances or arrangements at this time.
ITEM 13.
Except as disclosed herein, no director, executive officer, shareholder holding at least 5% of shares of our common stock, or any family member thereof, had any material interest, direct or indirect, in any transaction, or proposed transaction since the year ended April 30, 2021, in which the amount involved in the transaction exceeded or exceeds the lesser of $120,000 or one percent of the average of our total assets at the year-end for the last three completed fiscal years.
On January 21, 2021, the Company issued 500,000 shares of series A convertible preferred stock to the CEO of the Company at $0.0001 per share for consideration of $50.
On January 21, 2021, the Company issued 500,000 shares of series A convertible preferred stock to the executive of the Company at $0.0001 per share for consideration of $50.
During the years ended April 30, 2021 and 2020, the Companys former sole officer and director loaned the Company $0 and $29,391, respectively, to pay for operating expenses. These amounts were non-interest-bearing and due on demand. During the year ended April 30, 2020 and in conjunction with the change in control on May 5, 2020, the aggregate related party loan of $101,659 was forgiven.
### Director Independence
We currently act with one director, Brett H. Pojunis
We have determined that we do not have an independent director, as that term is used in Rule 4200(a)(15) of the Rules of National Association of Securities Dealers.
From inception to present date, we believe that the members of our audit committee and the board of directors have been and are collectively capable of analyzing and evaluating our consolidated financial statements and understanding internal controls and procedures for financial reporting.
### ITEM 14.
The aggregate fees billed for the most recently completed fiscal year ended April 30, 2021 and for fiscal year ended April 30, 2020 for professional services rendered by the principal accountant for the audit of our annual financial statements and review of the financial statements included in our quarterly reports on Form 10-Q and services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for these fiscal periods were as follows:
Audit committee policies & procedures
The above services were approved by our Board of Directors.
PART IV
### ITEM 15.
(a)
Financial Statements
(1)
Financial statements for our company are listed in the index under Item 8 of this document.
(2)
All financial statement schedules are omitted because they are not applicable, not material or the required information is shown in the financial statements or notes thereto.
(b)
Exhibits
_________
*Filed herewith.
**Furnished herewith.
### ITEM 16. FORM 10-K SUMMARY
None.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Directors, or our or their affiliates. Any such payments prior to an initial business combination will be made from funds held outside the trust account. Other than quarterly audit committee review of such reimbursements, we do not expect to have any additional controls in place governing our reimbursement payments to our directors and executive officers for their out-of-pocket expenses incurred in connection with our activities on our behalf in connection with identifying and consummating an initial business combination. Other than these payments and reimbursements, no compensation of any kind, including finders and consulting fees, will be paid by the company to our Sponsor, executive officers and directors, or any of their respective affiliates, prior to completion of our initial business combination.
We do not intend to take any action to ensure that members of our management team maintain their positions with us after the consummation of our initial business combination, although it is possible that some or all of our executive officers and directors may negotiate employment or consulting arrangements to remain with us after our initial business combination. The existence or terms of any such employment or consulting arrangements to retain their positions with us may influence our managements motivation in identifying or selecting a target business but we do not believe that the ability of our management to remain with us after the consummation of our initial business combination will be a determining factor in our decision to proceed with any potential business combination. We are not party to any agreements with our executive officers and directors that provide for benefits upon termination of employment.
Item 12.
The following table sets forth information regarding the beneficial ownership of our common stock as of March 29, 2021 by: each person known by us to be the beneficial owner of more than 5% of our outstanding shares of common stock; each of our executive officers and directors; and all our executive officers and directors as a group.
Unless otherwise indicated, we believe that all persons named in the table have sole voting and investment power with respect to all shares of common stock beneficially owned by them. The following table does not reflect record or beneficial ownership of the private placement warrants as these warrants are not exercisable within 60 days of the date of this Form 10-K.
The beneficial ownership of our common stock is based on 25,156,250 shares of common stock issued and outstanding as of March 29, 2021, consisting of 20,125,000 shares of Class A common stock and 5,031,250 shares of Class B common stock.
(1)
The principal business address of each of the following entities or individuals is c/o , 1 World Trade Center, 85 th
(2)
Interests shown consist of founder shares, classified as shares of Class B common stock. Such shares are convertible into shares of Class A common stock on a one-for-one basis, subject to adjustment.
(3)
Represents shares held by 10X Capital SPAC Sponsor I LLC, our Sponsor. Mr. Thomas is the sole managing member of 10X Capital SPAC Sponsor I LLC. Mr. Thomas has voting and investment discretion with respect to the common stock held of record by 10X Capital SPAC Sponsor I LLC. Each of our officers and directors other than Mr. Thomas disclaims any beneficial ownership of any shares held by 10X Capital SPAC Sponsor I LLC. Each such person disclaims any beneficial ownership of the reported shares other than to the extent of any pecuniary interest they may have therein, directly or indirectly.
(4)
According to a Schedule 13G/A filed with the SEC on February 16, 2021 on behalf of Citadel Advisors LLC (Citadel Advisors), Citadel Advisors Holdings LP (CAH), Citadel GP LLC (CGP), Citadel Securities LLC (Citadel Securities), CALC IV LP (CALC4), Citadel Securities GP LLC (CSGP) and Mr. Kenneth Griffin (collectively with Citadel Advisors, CAH, CGP, Citadel Securities, CALC4 and CSGP, the Reporting Persons) with respect to shares of Class A common stock owned by Citadel Equity Fund Ltd., a Cayman Islands company (CEFL), Citadel Multi-Strategy Equities Master Fund Ltd., a Cayman Islands company (CM), and Citadel Securities. Citadel Advisors is the portfolio manager for CEFL and CM. CAH is the sole member of Citadel Advisors. CGP is the general partner of CAH. CALC4 is the non-member manager of Citadel Securities. CSGP is the general partner of CALC4. Mr. Griffin is the President and Chief Executive Officer of CGP, and owns a controlling interest in CGP and CSGP. Each of Citadel Advisors, CAH and CGP may be deemed to beneficially own 1,350,000 shares of Class A common stock. Mr. Griffin may be deemed to beneficially own 1,350,018 shares of Class A common stock. The principal business address of each Reporting Person is 131 S. Dearborn Street, 32nd Floor, Chicago, Illinois 60603.
Item 13.
### Founder Shares
On August 10, 2020, our Sponsor purchased an aggregate of 6,325,000 founder shares for an aggregate price of $25,000. The founder shares will automatically convert into Class A common stock upon the consummation of a business combination on a one-for-one basis, subject to adjustments.
Our Sponsor has agreed, subject to certain limited exceptions, not to transfer, assign or sell any of its founder shares until the earlier to occur of: (i) (w)with respect to 25% of such shares, until consummation of the Companys initial Business Combination, (x)with respect to 25% of such shares, until the closing price of the Companys ClassA common stock exceeds $12.00 for any 20 trading days within a 30-tradingday period following the consummation of the Companys initial Business Combination, (y)with respect to 25% of such shares, until the closing price of the Companys ClassA common stock exceeds $13.50 for any 20 trading days within a 30-tradingday period following the consummation of the Companys initial Business Combination and (z)with respect to 25% of such shares, until the closing price of the Companys ClassA common stock exceeds $17.00 for any 20 trading days within a 30-tradingday period following the consummation of the Companys initial Business Combination and (ii)the date on which we complete a liquidation.
### Related Party Loans
On August 10, 2020, we issued an unsecured promissory note to our Sponsor (the Promissory Note), pursuant to which we could borrow up to an aggregate principal amount of $300,000. The Promissory Note was non-interest bearing and payable on the earlier of December 31, 2020 or the completion of the initial public offering. The Promissory Note was repaid on November 27, 2020.
In addition, in order to finance transaction costs in connection with a business combination, our Sponsor or an affiliate of our Sponsor, or certain of our officers and directors may, but are not obligated to, loan us funds as may be required (Working Capital Loans). Except for the foregoing, the terms of such Working Capital Loans, if any, have not been determined and no written agreements exist with respect to such loans. The Working Capital Loans would either be repaid upon consummation of a business combination, without interest, or, at the lenders discretion, up to $1,500,000 of such Working Capital Loans may be convertible into warrants at a price of $1.00 per warrant.
### Administrative Services Agreement
We entered into an agreement with our Sponsor whereby, commencing on November 24, 2020 through the earlier of the consummation of a business combination and our liquidation, we agreed to pay our Sponsor $20,000 per month for office space, utilities and secretarial and administrative support.
Item 14.
The firm of WithumSmith+Brown, PC, or Withum, acts as our independent registered public accounting firm. The following is a summary of fees paid to Withum for services rendered.
### Audit Fees
Audit fees consist of fees billed for professional services rendered for the audit of our year-end financial statements and services that are normally provided by Withum in connection with regulatory filings. The aggregate fees billed by WithumSmith+Brown, PC required filings with the SEC for the period from August 10, 2020 (inception) through December 31, 2020 and of services rendered in connection with our initial public offering totaled $50,470.
Audit-Related Fees.
Audit-related fees consist of fees billed for assurance and related services that are reasonably related to performance of the audit or review of our year-end financial statements and are not reported under Audit Fees. These services include attest services that are not required by statute or regulation and consultation concerning financial accounting and reporting standards. During the period from August 10, 2020 (inception) through December 31, 2020, we did not pay WithumSmith+Brown, PC any audit-related fees.
### Tax Fees
Tax fees consist of fees billed for professional services relating to tax compliance, tax planning and tax advice. During the period from August 10, 2020 (inception) through December 31, 2020, we did not pay WithumSmith+Brown, PC any tax fees.
All Other Fees
All other fees consist of fees billed for all other services. During the period from August 10, 2020 (inception) through December 31, 2020, we did not pay WithumSmith+Brown, PC any other fees.
### Pre-Approval Policy
Our audit committee was formed upon the consummation of our initial public offering. As a result, the audit committee did not pre-approve all of the foregoing services, although any services rendered prior to the formation of our audit committee were approved by our board of directors. Since the formation of our audit committee, and on a going-forward basis, the audit committee has and will pre-approve all auditing services and permitted non-audit services to be performed for us by our auditors, including the fees and terms thereof (subject to the de minimis exceptions for non-audit services described in the Exchange Act which are approved by the audit committee prior to the completion of the audit).
### PART IV
Item 15.<|endoftext|>Executive, and any employee benefits the executive may be entitled to as of the termination date.
Should the executive be terminated without cause, the Company shall pay the aforementioned accrued amounts, and a lump sum payment depending on how long the executive has been with the Company. If the termination occurs before the two-year anniversary of the employment agreement, the Company shall pay a lump sum of $2,000,000. If the termination occurs between the two-year anniversary and the four-year anniversary of the employment agreement, the Company shall pay a lump sum of $1,600,000. If the termination occurs after the four-year anniversary of the employment agreement, the Company shall pay a lump sum of $1,200,000.
In the event that the executive is terminated without cause, the executive will have a one-time right to require that the Company purchase all shares of the Companys stock held by the executive. The executive must provide written notice of exercise within three months of such termination. In the event that the executive is terminated for any reason other than termination without cause, the Company will have a one-time right to require that the executive sell all of the Companys stock held by the executive. The Company must provide written notice of exercise within three months of such termination. The parties will negotiate in good faith to agree on a purchase price. If they are unable to agree, the purchase price will be based on the Company valuation used in the most recent sale of Company stock if it occurred within the last six months. If no such sale has occurred, the purchase price will instead be referred to an independent third-party valuation expert mutually agreed upon by all parties and the fair market value of the stock as determined by such expert shall be the purchase price.
In the event that an executive proposes to make any assignment, sale, disposition, or transfer of Company stock held by the executive to a third party in amounts greater than 5% of the currently issued and outstanding stock, the executive shall first deliver a written notice to the Company setting forth the material terms and conditions, including price and form of consideration and the identity of the proposed transferee. Following the Companys receipt of such notice, the Company shall, for a period of fourteen days thereafter, have the right, but not the obligation, to purchase all of the stock subject to such proposed transfer on the same terms and conditions specified in the executives notice. The Company must provide written notice of its intent to exercise this right of first refusal within the same fourteen day period. The executive is annually entitled to transfer up to five percent of the aggregate issued and outstanding stock of the Company owned by the executive without triggering this right of first refusal or without first getting Board approval.
### Significant Employees
We have no significant employees who are not executive officers or directors.
Family Relationships
No officer or director of the Company has a family relationship with any other member of the Company.
### Directorships
None
During the past ten years, no director, promoter or control person: has filed a petition under federal bankruptcy laws or any state insolvency laws, nor had a receiver, fiscal agent or similar officer appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two years before the time of such filing;
or
was the subject of any order, judgment or decree, not subsequently reverse, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in the preceding bullet point, or to be associated with persons engaged in any such activity;
ITEM 12. SECURITIES OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDERS MATTERS
The table below sets forth the beneficial ownership of our common stock, as of April 15, 2021, by:
All of our current directors and executive officers, individually; and
All persons who beneficially own more than 5% of our outstanding common stock.
The beneficial ownership of each person was calculated based on 32,452,000 common shares outstanding as of April 15, 2021. The SEC has defined beneficial ownership to mean more than ownership in the usual sense. For example, a person has beneficial ownership of a share not only if he owns it in the usual sense, but also if he has the power (solely or shared) to vote, sell or otherwise dispose of the share. Beneficial ownership also includes the number of shares that a person has the right to acquire within 60 days, pursuant to the exercise of options or warrants or the conversion of notes, debentures or other indebtedness, but excludes stock appreciation rights. Two or more persons might count as beneficial owners of the same share. Each person named in the table has sole voting and investment power with respect to all of the shares of our common stock shown as beneficially owned by such person, except as otherwise set forth in the notes to the table. Unless otherwise noted, the address of the following persons listed below is c/o Pipergy, Inc., 2096 Skull Creek Road, Four Corners, WY 82715.
The following table sets forth, as of April 15, 2021, the number and percentage of our outstanding shares of common stock owned by (i) each person known to us to beneficially own more than 5% of its outstanding common stock, (ii) each director, (iii) each named executive officer and significant employee, and (iv) all officers and directors as a group.
(1)
Based upon 32,452,000 outstanding common shares as of April 15, 2021.
### Changes in Control
There are no present arrangements or pledges of our securities that may result in a change in control of the Company.
ITEM 13.
### Office Space
Advances
Additionally, Mr.
There have been no transactions since inception, or any currently proposed transaction in which we were or are to be a participant and the amount involved exceeds the lesser of $120,000 or one percent of the average of our total assets at year-end for the last three completed fiscal years.
Director Independence
There is no market for our securities. Our common stock is presently not traded on any public market or securities exchange, and we have not applied for listing or quotation on any public market. We intend to apply to be registered on the OTCQB Marketplace operated by the OTC Markets Group, Inc
, which does not impose specific standards relating to director independence or the makeup of committees with independent directors or provide definitions of independence. In accordance with the rules of the SEC, we determine the independence of our directors by reference to the rules of The Nasdaq Stock Market. In accordance with such rules, the Board has determined that Mark Braun is an independent director. There were no transactions, relationships or arrangements not disclosed under the caption Certain Relationships and Related Transactions of this report that were considered by the Board of Directors under the applicable independence definitions in determining that there are no independent directors.
ITEM 14.
### Audit Fees
The aggregate fees billed for the period from January 3, 2020 (date of inception) to December 31, 2020 for professional services rendered by Haynie & Company for the audit of the Companys annual financial statements and review of the financial statements included in the Companys Form 10-K or services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for the period from January 3, 2020 (date of inception) to December 31, 2020 was $16,506.
Tax Fees
We incurred aggregate tax fees and expenses from Haynie & Company during the January 3, 2020 (date of inception) to December 31, 2020 for professional services rendered for tax compliance, tax advice, and tax planning of $0.
### All Other Fees
The board of directors, acting as the Audit Committee considered whether, and determined that, the auditor's provision of non-audit services was compatible with maintaining the auditor's independence. All of the services described above for fiscal year 2020 were approved by the board of directors pursuant to its policies and procedures.
PART IV
### ITEM 15.
(a)(1) List of Financial statements included in Part II hereof
Balance Sheet at December 31, 2020
### To December 31, 2020
(Inception) to December 31, 2020
### To December 31, 2020
(a)(2) List of Financial Statement schedules included in Part IV hereof: None.
(a)(3) Exhibits
### The following exhibits are included herewith:
Exhibit No.
Description
Certification of Chief Executive Officer and Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
101.INS*
XBRL Instance Document
101.SCH*
101.CAL*
101.DEF*
101.LAB*
101.PRE*
*XBRL (Extensible Business Reporting Language) information is furnished and not filed or a part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise is not subject to liability under these sections.
Following are a list of exhibits which we previously filed in other reports which we filed with the SEC, including the Exhibit No., description of the exhibit and the identity of the Report where the exhibit was filed.
3.1
Articles of Incorporation dated January 3, 2020 incorporated by reference to Form S-1, file #333-240364 filed on August 4, 2020
3.2
Bylaws incorporated by reference to Form S-1, file #333-240364 filed on August 4, 2020
10.1
Promissory Note by and between Company and Thomas Mohnen dated June 19, 2020 incorporate d by reference to Form S-1/A, file #333-240364 filed on September 4, 2020
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Will use its commercially reasonable efforts to register or qualify the shares under applicable blue sky laws to the extent an exemption is not available.
In addition, if (x) the Company issues additional shares of Class A common stock or equity-linked securities for capital raising purposes in connection with the closing of the initial Business Combination at an issue price or effective issue price of less than $9.20 per share of Class A common stock (with such issue price or effective issue price to be determined in good faith by the board of directors and, in the case of any such issuance to the initial stockholders or their affiliates, without taking into account any Founder Shares held by the initial stockholders or such affiliates, as applicable, prior to such issuance) (the Newly Issued Price) (y) the aggregate gross proceeds from such issuances represent more than 60% of the total equity proceeds, and interest thereon, available for the funding of the initial Business Combination on the date of the consummation of the initial Business Combination (net of redemptions), and (z) the volume weighted average trading price of the Class A common stock during the 20 trading day period starting on the trading day after the day on which the Company consummates the initial Business Combination (such price, the Market Value) is below $9.20 per share, the exercise price of the warrants will be adjusted (to the nearest cent) to be equal to 115% of the higher of the Market Value and the Newly Issued Price, the $18.00 per share redemption trigger price described under Redemption of warrants when the price per share of Class A common stock equals or exceeds $18.00 will be adjusted (to the nearest cent) to be equal to 180% of the higher of the Market Value and the Newly Issued Price, and the $10.00 per share redemption trigger price described under Redemption of warrants when the price per share of Class A common stock equals or exceeds $10.00 will be adjusted (to the nearest cent) to be equal to the higher of the Market Value and the Newly Issued Price.
Additionally, the Private Placement Warrants will be non-redeemable (except as described below in Redemption of warrants when the price per share of Class A common stock equals or exceeds $10.00) so long as they are held by the Sponsor or its permitted transferees.
and if, and only if, the last reported sale price (the closing price) of the Class A common stock equals or exceeds $18.00 per share (as adjusted) for any 20 trading days within a 30-trading day period ending on the third trading day prior to the date on which the Company sends the notice of redemption to the warrant holders.
The Company will not redeem the warrants as described above unless a registration statement under the Securities Act covering the issuance of the shares of Class A common stock issuable upon exercise of the warrants is then effective and a current prospectus relating to those shares of Class A common stock is available throughout the 30-day redemption period.
Redemption of warrants for when the price per share of Class A common stock equals or exceeds $10.00:
at $0.10 per warrant upon a minimum of 30 days prior written notice of redemption provided that holders will be able to exercise their warrants on a cashless basis prior to redemption and receive that number of shares determined by reference to an agreed table based on the redemption date and the fair market value of Class A common stock; if, and only if, the closing price of the Class A common stock equals or exceeds $10.00 per Public Share (as adjusted) for any 20 trading days within the 30-trading day period ending three trading days before the Company sends notice of redemption to the warrant holders; and if the closing price of the shares of Class A common stock for any 20 trading days within a 30- trading day period ending on the third trading day prior to the date on which the Company sends the notice of redemption to the warrant holders is less than $18.00 per share (as adjusted), the Private Placement Warrants must also be concurrently called for redemption on the same terms as the outstanding Public Warrants, as described above.
The fair market value of Class A common stock shall mean the volume-weighted average price of the Class A common stock during the ten trading days ending on the third trading day immediately following the date on which the notice of redemption is sent to the holders of warrants. In no event will the warrants be exercisable in connection with this redemption feature for more than 0.361 shares of Class A common stock per warrant (subject to adjustment).
Preferred Stock
### Class A Common Stock
As of December 31, 2020, there were 25,875,000 shares of Class A common stock issued or outstanding including 23,364,811 shares subject to possible redemption.
Class B Common Stock
On October 13, 2020, the Company issued 5,750,000 shares of Class B common stock to the Sponsor and Jones & Associates for an aggregate price of $25,000. Of the 6,468,750 shares of Class B common stock outstanding, up to 843,750 shares were subject to forfeiture to the extent that the underwriters over-allotment option was not exercised in full or in part, so that the initial stockholders would collectively own 20% of the Companys issued and outstanding common stock after the Initial Public Offering. The underwriter exercised its over-allotment option in full on December 22, 2020;
Holders of record of the Class A common stock and holders of record of the Class B common stock will vote together as a single class on all matters submitted to a vote of the stockholders, with each share of common stock entitling the holder to one vote except as required by law.
The Class B common stock will automatically convert into Class A common stock concurrently with or immediately following the consummation of the initial Business Combination on a one-for-one basis, subject to adjustment for stock splits, stock dividends, reorganizations, recapitalizations and the like, and subject to further adjustment as provided herein. In the case that additional shares of Class A common stock or equity-linked securities are issued or deemed issued in connection with the initial Business Combination, the number of shares of Class A common stock issuable upon conversion of all Founder Shares will equal, in the aggregate, on an as-converted basis, 20% of the total number of shares of Class A common stock outstanding after such conversion (after giving effect to any redemptions of shares of Class A common stock by Public Stockholders), including the total number of shares of Class A common stock issued, or deemed issued or issuable upon conversion or exercise of any equity- linked securities or rights issued or deemed issued, by the Company in connection with or in relation to the consummation of the initial Business Combination, excluding any shares of Class A common stock or equity-linked securities or rights exercisable for or convertible into shares of Class A common stock issued, or to be issued, to any seller in the initial Business Combination and any private placement warrants issued to the Sponsor, officers or directors upon conversion of Working Capital Loans, provided that such conversion of Founder Shares will never occur on a less than one-for-one basis.
There was no transfer in or out of Level 3 measurements in the period from September 23 (inception) through December 31, 2020.
Level 3 instruments are comprised of derivative warrant liabilities measured at fair value using a Binomial Lattice model and Black-Scholes.
The fair value of the Public Warrants issued in connection with the Public Offering have been measured at fair value using a Binomial Lattice model. The fair value of the warrants issued in the Private Placement were estimated using Black-Scholes.
The estimated fair value of the Private Placement Warrants and the Public Warrants is determined using Level 3 inputs. Inherent in a Binomial Lattice model and Black-Scholes are assumptions related to expected stock-price volatility, expected life, risk-free interest rate and dividend yield.
The change in the fair value of the derivative warrant liabilities for the period from September 23, 2020 (inception) through December 31, 2020 is summarized as follows:
### Note 10Income Taxes
### Note 11Subsequent Events
Management has evaluated subsequent events to determine if events or transactions occurring through June 3, 2021
, the date the financial statements were issued required potential adjustment to or disclosure in the financial statements and has concluded that all such events that would require recognition or disclosure have been recognized or disclosed.
### Exhibit
Description
3.1
3.2
Bylaws (Incorporated by reference to Exhibit 3.3 to Amendment No.
4.1
Specimen Unit Certificate (Incorporated by reference to the corresponding exhibit to Amendment No.
4.2
Specimen Class A common stock Certificate (Incorporated by reference to the corresponding exhibit to Amendment No.
4.3
Specimen Warrant Certificate (Incorporated by reference to the corresponding exhibit to Amendment No.
4.4
Warrant Agreement between the Company and Continental Stock Transfer & Trust Company, dated as of December 17, 2020
4.5(1)
Description of Securities
10.1
Letter Agreement, dated December 17, 2020, by and among the Company, Seven Oaks Sponsor LLC, Jones & Associates, Inc. and each of the initial stockholders of the Company
10.2
Investment Management Trust Agreement, dated December 17, 2020, by and between the Company and Continental Stock Transfer & Trust Company, as trustee.
10.3
Registration Rights Agreement, dated December 17, 2020, by and among the Company, Seven Oaks Sponsor LLC and the other holders party thereto
10.4
Private Placement Warrants Purchase Agreement, dated December 17, 2020, by and among the Company and Seven Oaks Sponsor LLC
31.1
31.2
Certification of Principal Financial and Accounting Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1
32.2<|endoftext|>Of $907,406, income tax provision of $17,841 and a change in the fair value of the warrant liability of $655,098, offset by interest income on securities held in the trust account established for the benefit of our public stockholders (the Trust Account) of $138,764 and the forgiveness of previously recorded professional fees of $352,071.
For the year ended December 31, 2019, we had a net income of $408,427, which consists of interest income on securities held in the Trust Account of $1,205,820, offset by operating costs of $713,187 and provision for income taxes of $84,206.
As of December 31, 2020, we had cash and marketable securities held in the Trust Account of $5,967,947 (including approximately $138,764 of interest income) consisting of money market funds. Interest income earned on the balance in the Trust Account may be used by us to pay taxes. To date, we have withdrawn $716,788 of interest from the Trust Account in order to pay our income and franchise taxes, of which $161,430 was withdrawn during the year ended December 31, 2020.
For the year ended December 31, 2020, cash used in operating activities amounted to $598,617. Net loss of $1,089,510 was the result of the forgiveness of previously recorded professional fees in the amount of $352,071, a non-cash charge for the change in the fair value of warrant liability of $655,098 and interest earned on securities held in the Trust Account of $138,764 and changes in operating assets and liabilities, which provided $326,630 of cash for operating activities.
For the year ended December 31, 2019, cash used in operating activities amounted to $792,731. Net income of $408,427 was the result of interest earned on securities held in the Trust Account of $1,205,820, offset by changes in operating assets and liabilities, which provided $4,662 of cash for operating activities.
We intend to use substantially all of the funds held in the Trust Account to acquire a target business or businesses and to pay our expenses relating thereto. To the extent that our capital stock is used, in whole or in part, as consideration to complete our Business Combination, the remaining proceeds held in the Trust Account, as well as any other net proceeds not expended, will be used as working capital to finance the operations of the target business. Such working capital funds could be used in a variety of ways including, but not limited to, continuing or expanding the target business operations, for strategic acquisitions and for marketing, research and development of existing or new products. Such funds could also be used to repay any expenses or finders fees which we had incurred prior to the completion of our Business Combination if the funds available to us outside of the Trust Account were insufficient to cover such expenses.
As of December 31, 2020, A/Z Property has loaned us an aggregate of approximately $862,148 in order to pay our Non-Business Combination Related Expenses and extension payments. Upon consummation of a Business Combination, up to $200,000 of the Non-Business Combination Related Expenses may be repaid by us to the Sponsor provided that we have funds available to us sufficient to repay such expenses (the Cap) as well as to pay for all stockholder redemptions, all Business Combination Expenses, repayment of the Notes, and any funds necessary for our working capital requirements following closing of the Business Combination. Any remaining amounts in excess of the Cap will be forgiven. If we do not consummate a Business Combination, all outstanding loans made by the Sponsor to cover the Non-Business Combination Related Expenses will be forgiven. We repaid $35,000 of such loans during the year ended December 31, 2020.
As of December 31, 2020, BRAC has loaned us an aggregate of approximately $1,809,889 in order to fund extension payments and other expenses.
We do not believe we will need to raise additional funds in order to meet expenditures required for operating our business. However, if our estimate of the costs of identifying a target business, undertaking in-depth due diligence and negotiating a Business Combination are less than the actual amounts necessary to do so, we may have insufficient funds available to operate our business prior to our Business Combination. In order to fund working capital deficiencies or finance transaction costs in connection with a Business Combination, our Sponsor, officers and directors or their respective affiliates may, but are not obligated to, except as described above, loan us funds as may be required. Up to $1,500,000 of such loans may be convertible into units, at a price of $10.00 per unit at the option of the lender. The units would be identical to the Private Placement Units.
Contractual obligations
We do not have any long-term debt, capital lease obligations, operating lease obligations or long-term liabilities.
We have engaged EarlyBirdCapital as an advisor in connection with a Business Combination to assist us in holding meetings with its stockholders to discuss a potential Business Combination and the target business attributes, introduce us to potential investors that are interested in purchasing securities, assist us in obtaining stockholder approval for the Business Combination and assist us with our press releases and public filings in connection with a Business Combination. The Business Combination Marketing Agreement between us and EarlyBirdCapital provides that we will pay EarlyBirdCapital a cash fee for such services upon the consummation of a Business Combination in an amount equal to 4.0% of the gross proceeds of the Initial Public Offering (exclusive of any applicable finders fees which might become payable). In connection with the proposed Merger with NeuroRx, EarlyBirdCapital agreed that, in lieu of such cash fee, it would be paid an aggregate of 200,000 shares of our common stock upon consummation of the Merger. If a Business Combination is not consummated for any reason, no fee will be due or payable.
Warrant Liability
We account for warrants in accordance with the guidance contained in ASC 815-40-15-7D under which the warrants that do not meet the criteria for equity treatment and must be recorded as liabilities. As the Private Warrants meet the definition of a derivative as contemplated in ASC 815, we classify the Private Warrants as liabilities at their fair value and adjust the warrants to fair value at each reporting period. The fair value of the Private Warrants was estimated using a Black-Scholes Model approach.
Accordingly, common stock subject to possible redemption is presented at redemption value as temporary equity, outside of the stockholders equity section of our consolidated balance sheets.
Net income (loss) per common share, basic and diluted for common stock subject to possible redemption is calculated by dividing the interest income earned on the Trust Account, net of applicable taxes, if any, by the weighted average number of shares of common stock subject to possible redemption outstanding for the period. Net income (loss) per common share, basic and diluted for and non-redeemable common stock is calculated by dividing net loss less income attributable to common stock subject to possible redemption, by the weighted average number of shares of non-redeemable common stock outstanding for the period presented.
ITEM 9A.CONTROLS AND PROCEDURES.
As required by Rules 13a-15 and 15d-15 under the Exchange Act, our Chief Executive Officer and Chief Financial Officer (our Certifying Officers) carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as of December31, 2020. On April1, 2021, we filed our Original 10-K. Based upon their evaluation at that time, our Certifying Officers had concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e)and 15d-15(e) under the Exchange Act) were effective. Subsequently, and in connection with this Amendment, our Certifying Officers re-evaluated the effectiveness of our disclosure controls and procedures as of December31, 2020, pursuant to Rule 13a-15(b) under the Exchange Act. Based upon that evaluation and in light of the SEC Statement, our Certifying Officers concluded that, solely due to the Companys restatement of its financial statements to reclassify the Companys Private Warrants as described in the Explanatory Note to this Amendment, our disclosure controls and procedures were not effective as of December31, 2020.
In connection with the restatement of our financial statements included in this Amendment, our management, including our principal executive and financial officers, have evaluated the effectiveness of our internal control over financial reporting and concluded that we did not maintain effective internal control over financial reporting as of December31, 2020 because of a material weakness in our internal control over financial reporting described below related to the accounting for a significant and unusual transaction related to the Private Warrants.
In connection with the restatement described in Note 2 Restatement of Previously Issued Financial Statements to the accompanying financial statements included in this Amendment, management identified a material weakness in our internal control over financial reporting related to the accounting for a significant and unusual transaction related to the Private Warrants. This material weakness resulted in a material misstatement of our warrant liability, change in fair value of warrant liability, additional paid-in capital and accumulated deficit as of and for the year ended December 31, 2020.
On April 28, 2021, we revised our prior position on accounting for warrants and concluded that our previously issued financial statements as of and for the year ended December 31, 2020 should not be relied on because of a misapplication in the guidance on warrant accounting.
PART IV
ITEM 15
(a) The following documents are filed as part of this Amendment:
(1) Financial Statements:
None.
(3) Exhibits
The following exhibits are filed as part of, or incorporated by reference into, this Amendment.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Voting power of 13,704,357 shares of common stock, or the Vitruvian Shares. The holdings reported represent the shares of common stock held by Vitruvian. VEX Holdings holds a majority of the capital interests of Vitruvian and has the right to appoint four of the six managers of the Vitruvian Board (such managers referred to herein as the VEX Holdings Managers). Certain actions of Vitruvian, including certain dispositions, require the approval of the VEX Holdings Managers. VEX has the right to appoint a majority of the board of managers of VEX Holdings. Q
-VEX has the right to appoint a majority of the board of managers of VEX. QEM is the sole general partner of Q
-VEX
Any decision taken by QEM to vote, or to direct to vote, and to dispose, or to direct the disposition of, the Vitruvian Shares has to be approved by a majority of the members of the investment committee of QEM, which majority must include S.Wil VanLoh, Jr. Therefore, VEX Holdings, VEX, Q
-VEX
, QEM and S. Wil VanLoh, Jr. may be deemed to share voting and dispositive power over the Vitruvian Shares and may also be deemed to be the beneficial owners of such securities.
ITEM 13.
The Audit Committee, as provided in its charter, reviews and approves related party transactions. The Company does not have a formal set of standards to be substantively applied to each transaction reviewed by the Audit Committee. Instead of a formalized policy, related party transactions are reviewed and judgment is applied to determine whether such transactions are in the best interests of the Company. The Companys Code of Business Conduct and Ethics governs various compliance areas, including conflicts of interest and fair dealings, which are considered in the process of the review and approval of related party transactions.
The Companys policy is that all its employees and directors, as well as their family members, must avoid any activity that is or has the appearance of conflicting with the Companys business interest. This policy is included in the Companys Code of Business Conduct and Ethics posted on its website. Each director and executive officer is instructed to always inform the designated compliance officer when confronted with any situation that may be perceived as a conflict of interest. Only the Board of Directors or a committee consisting solely of independent directors may grant waivers of the provisions of the Code of Business Conduct and Ethics for the Companys executive officers and directors. In addition, at least annually, each director and executive officer completes a detailed questionnaire specifying any business relationship that may give rise to a conflict of interest.
Under the Audit Committee charter, the Audit Committee is responsible for reviewing and monitoring compliance with our Code of Business Conduct and Ethics and recommending any warranted changes to the Board of Directors. In addition, the Board of Directors and, pursuant to its written charter, the Audit Committee, reviews and approves all relationships and transactions in which the Company and its directors, director nominees and executive officers and their immediate family members, as well as holders of more than 5% of any class of our voting securities and their family members, have a direct or indirect material interest. The Board of Directors and the Audit Committee approve only those transactions that, in light of known circumstances, are consistent, or are not inconsistent with, the Companys best interests, as they determine in the good faith exercise of their discretion.
Our Board of Directors has determined that seven of our eight current Board members (Deborah Adams, Alvin Bledsoe, Valerie Jochen, Doug Johnson, Ben Morris, John Somerhalder and Samantha Holroyd) meet the independence requirements in the Nasdaq listing standards and are free of any relationship that, in the opinion of our Board of Directors, would interfere with the exercise of independent judgment in carrying out their responsibilities as directors of the Company. In determining Ms. Adams independence, the Board considered Ms. Adams service on the Board of Directors and the Audit and Compensation Committees of MRC Global Inc., a company listed on the New York Stock Exchange (the NYSE) from which we purchased products and services representing less than 1% of either Companys revenues in 2020.
### ITEM 14.
Grant Thornton LLPs fees for professional services totalled $966,000 for 2019 and $866,250 for 2020. Grant Thornton LLPs fees for professional services included the following:
Audit Fees aggregate fees for audit services, which relate to the fiscal year consolidated audit, quarterly reviews and accounting consultations were $966,000 for 2019 and $866,250 for 2020.
### Audit
-Related
Fees aggregate fees for audit
-related services, consisting of audits in connection with proposed or consummated dispositions, benefit plan audits, other subsidiary audits, special reports, and accounting consultations, were $0 in 2019 and 2020.
Tax and All Other Fees there were no tax or other fees for products or services provided by Grant Thornton LLP in addition to the services described above in 2019 and 2020.
The primary role of the Audit Committee is to assist the Board of Directors in its oversight of the Companys accounting and financial reporting processes. In doing so, the Audit Committee is responsible for the appointment and compensation of the Companys independent registered public accounting firm and has oversight for its qualification, independence and performance. The Audit Committee charter guides our duties and responsibilities. The Audit Committee charter, which was last amended during 2020, is available on the Companys website at www.gulfportenergy.com
As set forth in the charter, management is responsible for the internal controls and accounting and financial reporting processes of Gulfport Energy Corporation. The independent registered public accounting firm is responsible for expressing opinions on the conformity of Gulfport Energy Corporations audited consolidated financial statements with generally accepted accounting principles and on the effectiveness of the Companys internal control over financial reporting. Our responsibilities include monitoring and overseeing these processes.
### Our Committee is comprised of three non
-employee
, independent members of the Board of Directors. No member serves on more than two other public company audit committees. The Board of Directors has determined that all of the members of the Audit Committee are financially literate and that Doug Johnson is a financial expert as that term is defined by the SEC. The members of our Committee are not professionally engaged in the practice of accounting or auditing. The Audit Committees considerations and discussions referred to below do not assure that the audit of the Companys financial statements has been carried out in accordance with generally accepted auditing standards, that the financial statements are presented in accordance with generally accepted accounting principles or that the Companys auditors are in fact independent.
In the performance of our oversight function, we have reviewed and discussed the audited financial statements of the Company for the fiscal year ended December
31, 2020 and managements assessment of the effectiveness of the Companys internal control over financial reporting with the management of Gulfport Energy Corporation. We have met with Grant Thornton LLP, the Companys independent registered public accounting firm, with and without management present. We discussed with Grant Thornton LLP the matters required to be discussed under the applicable requirements of the Public Company Accounting Oversight Board (PCAOB) and the SEC and other matters we have deemed to be appropriate, including the overall scope and plans for the audit. We also have received the written disclosures and the letter from Grant Thornton LLP required by the applicable PCAOB requirements regarding the independent accountants communications with the Audit Committee concerning independence, and we have discussed with Grant Thornton LLP that firms independence from management and the Company. We also reviewed fees paid to Grant Thornton LLP for both audit and non
-audit services. In doing so, we considered whether the provision of non
-audit services to the Company was compatible with maintaining the independence of Grant Thornton LLP.
Based on the reports and discussions above, we recommended to the Board of Directors that the audited financial statements be included in the Gulfport Energy Corporation 2020 Annual Report on Form 10
-
K
This report is not soliciting material, is not deemed to be filed with the SEC, and is not to be incorporated by reference in any filing of the Company under the Securities Act of 1933, as amended, whether made before or after the date hereof and irrespective of any general incorporation language in any filing.
This report has been furnished by the Audit Committee of the Board of Directors.
### THE AUDIT COMMITTEE
Doug Johnson,
Chairman
### Samantha Holroyd
Valerie Jochen
ITEM15.
(a) The following financial statements, financial statement schedules and exhibits are filed as part of this report:
1.
Financial Statements.
No financial statements are filed with this Form10
-K
/A.
2.
3.
### Exhibits.
The exhibits listed below in the Index of Exhibits are filed, furnished or incorporated by reference pursuant to the requirements of Item601 of Regulation S
-K
*Schedules have been omitted pursuant to Item601(b)(2) of RegulationS
-K
The registrant hereby undertakes to furnish supplemental copies of any of the omitted schedules upon request by the SEC.
**The Company agrees to furnish a copy of any of its unfiled long
-term debt instruments to the Securities and Exchange Commission upon request.
+Management contract, compensatory plan or arrangement.
#Confidential treatment has been requested for portions of this exhibit. These portions have been omitted and submitted separately to the Securities and Exchange Commission.
***Previously filed with the Original 10
-K
Filing.<|endoftext|>RSUs vested on February 11, 2020.
The following table sets forth information with respect to outstanding equity-based awards at December 31, 2020 for our named executive officers, including grant dates and vesting dates related thereto:
(3)
On October 18, 2018, Mr. Galvin was awarded 231,161 PSUs as an inducement grant, subject to the terms and conditions of a performance stock unit award agreement, which sets forth certain performance targets and a performance period. The PSUs cliff vest at the end of a three-year performance period ending on October 15, 2021 based on the percentile ranking of the Companys total shareholder return relative to its peer companies for such performance period.
(4)
On April 16, 2019, Mr. Galvin was awarded 154,145 RSUs subject to the 2016 Plan. 51,382 of the RSUs vested on March 31, 2020, 51,382 vested on March 31, 2021 and 51,381 vest on March 31, 2022, subject to Mr. Galvins continuous employment with the Company through such vesting date.
(5)
On April 16, 2019, Mr. Galvin was awarded a target number of 143,135 PSUs (the Galvin 2019 PSUs), subject to the terms and conditions of a performance stock unit award agreement, which sets forth certain performance targets and a performance period. This number of PSUs represents the remaining target number of Galvin 2019 PSUs that can be earned based on performance during the 2020 calendar year.
(6)
This number of shares represents the number of Galvin 2019 PSUs that were earned based on 2019 performance and that are not subject to reduction based on TSR, which vested on March 31, 2021.
(7)
On February 11, 2019, Mr. McClain was awarded a target number of 175,000 PSUs (the McClain 2019 PSUs), subject to the terms and conditions of a performance stock unit award agreement, which sets forth certain performance targets and a performance period. This number of PSUs represents the remaining target number of McClain 2019 PSUs that can be earned based on performance during the 2020 calendar year.
(8)
This number of PSUs represents the number of McClain 2019 PSUs that were earned based on 2019 performance and that are not subject to reduction based on TSR, which vested on March 31, 2021, generally subject to Mr. McClains continued employment with the Company on such vesting date.
### Director Compensation
For the year ended December 31, 2020, each non-employee member of the Board of Directors received a cash payment of $60,000 payable one half on January 1st and one half on July 1 st
Although historically prior to 2018 each non-employee director has received an annual equity grant valued at $120,000 based on the closing price of our stock on the first trading day of the year, with vesting occurring on July 1st of the year of grant, the Compensation Committee determined that for 2020 our directors would again receive this amount in cash vesting in twelve (12) equal installments.
The following table sets forth compensation information for 2020 for each person who served as a member of our Board of Directors at any time during 2020 who was not also an executive officer. Anyone who serves on our Board of Directors that was an executive officer during any portion of a calendar year does not receive additional compensation for serving on the Board of Directors for the remainder of that year. None of our non-employee Directors held any outstanding stock awards or options as of December 31, 2020.
Item12.
The following table presents information regarding beneficial ownership of our Common Stock as of April 27, 2021 by each of our directors and our named executive officers, all of our executive officers and directors, as a group, and each person known by us to beneficially hold more than five percent (5%) of our Common Stock, based on information obtained from such persons.
Unless indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole investment power with respect to all securities beneficially owned, subject to community property laws where applicable. The shares beneficially owned by a person are determined in accordance with the definition of beneficial ownership set forth in the regulations of the SEC and, accordingly, shares of our Common Stock underlying options, warrants, restricted stock units and other convertible securities that are exercisable or convertible within sixty (60) days of April 27, 2021 and shares of our Common Stock underlying restricted stock awards that vest within sixty (60) days of April 27, 2021 are deemed to be beneficially owned by the person holding such securities and to be outstanding for purposes of determining such holders percentage ownership. The same securities may be beneficially owned by more than one person. Percentage ownership is based on 15,064,704 shares of our Common Stock outstanding as of April 27, 2021. The address for each beneficial owner, unless otherwise noted, is c/o Iconix Brand Group, Inc. at 1450 Broadway, Third Floor, New York, New York 10018.
*
Less than 1%
(1)
Based on a Schedule 13G/A filed on February 12, 2021, Mudrick Capital Management, LLC disclaims beneficial ownership of such securities not beneficially owned by Mudrick Capital Management, LLC.
(2)
Mudrick Capital Management, LLCs holdings above include shares to be issued upon the conversion of the Companys 5.75% Convertible Notes due 2023.
The following table sets forth certain information about our common stock that may be issued upon the exercise of options, warrants and rights under all of our compensation plans (including individual compensation arrangements) under which our equity securities are authorized for issuance as of December31, 2020, which includes the 2016 Plan.
(2)
No exercise price is attributable to outstanding RSUs or PSUs.
(3)
### Reflects the Galvin Inducement PSUs.
Item13.
The Company has entered into certain license agreements in which the core licensee is also one of our joint venture partners.In the case of Sports Direct International plc (Sports Direct), the Company maintains license agreements with Sports Direct and previously had a cooperation agreement with Sports Direct that allowed Sports Direct to appoint two members to the Companys Board of Directors. The cooperation agreement expired pursuant to its terms during the first quarter of 2019. As of December31, 2020 the Company recognized the following royalty revenue amounts:
### Director Independence
Barnes, Cohen and Marcum are each an independent director under the applicable Marketplace Rules of The Nasdaq Global Select Market (Nasdaq). The Board appointed Mr. Cohen as Lead Director of our Board in August 2015. Mr. Cuneo served as our Chairman of the Board from January 1, 2017 to December 18, 2017, when he was appointed to serve as Executive Chairman to help management navigate a difficult period. In connection with John Haughs (our former Chief Executive Officer) departure from the Company, Mr. Cuneo was appointed by the Board as Interim Chief Executive Officer on June 15, 2018, to provide stability while the Board conducted a search for and hired a permanent Chief Executive Officer. Mr. Cuneo ceased to serve as our interim Chief Executive Officer on October 15, 2018, upon the appointment of Mr. Galvin, and Mr. Cuneo served as Executive Chairman through December 31, 2018. Since January 1, 2019, Mr. Cuneo has served as Chairman of the Board.
Item14.
BDO USA, LLP has audited and reported upon our financial statements for our fiscal year ended December 31, 2020. In addition to retaining BDO USA, LLP to audit our financial statements, we engage BDO USA, LLP from time to time to perform other services, as approved by the Audit Committee.
### Audit Fees.
The aggregate fees billed by BDO USA, LLP for professional services rendered for the audit of (a) the Companys annual financial statements for 2020, the reviews of the financial statements included in the Companys Forms 10-Q totaled approximately $711,078, and (b) the Companys annual financial statements for 2019, the reviews of the financial statements included in the Companys Forms 10-Q and consents related to SEC registration statements for 2019 totaled approximately $835,051.
Audit-Related Fees.
There were approximately $176,698 and $136,199 aggregate fees billed by BDO USA, LLP for assurance and related services that are reasonably related to the performance of the audit or review of the Companys financial statements for 2020 and 2019, respectively, and that are not disclosed in the paragraph captioned Audit Fees above.
### Tax Fees.
The aggregate fees billed by BDO USA, LLP for professional services rendered for tax compliance and consulting for 2020 and 2019 were approximately $81,409 and $203,928, respectively.
All Other Fees.
In 2020 and 2019, BDO USA, LLP billed an aggregate of $341,607 and $1,748,011, respectively, for legal fees.
The Audit Committee has established its pre-approval policies and procedures, pursuant to which the Audit Committee approved the foregoing audit services provided by BDO USA, LLP in 2020. Consistent with the Audit Committees responsibility for engaging the Companys independent auditors, all audit and permitted non-audit services require pre-approval by the Audit Committee. The full Audit Committee approves proposed services and fee estimates for these services. The Audit Committee Chairperson or his or her designee has been designated by the Audit Committee to approve any services arising during the year that were not pre-approved by the Audit Committee. Services approved by the Audit Committee Chairperson are communicated to the full Audit Committee at its next regular meeting and the Audit Committee reviews services and fees for the fiscal year at each such meeting. Pursuant to these procedures, the Audit Committee approved all the foregoing audit services and permissible non-audit services provided by BDO USA, LLP.
### PART IV
Item15.
31.1*
Certification of Chief Executive Officer pursuant to Rule13a-14under the Securities Exchange Act of 1934, as amended.
31.2*
Certification of Chief Financial Officer pursuant to Rule13a-14under the Securities Exchange Act of 1934, as amended.
### Item16. Form 10-K Summary
Not applicable.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Completion of the initial closing of the Offering. Northland also purchased from us an aggregate of 20,000 Private Underwriter Shares at a price of $10.00 per share in a private placement that occurred simultaneously with the completion of the second closing of the Offering with the exercise of the over-allotment option.
Subject to certain limited exceptions, our Founders and management team have agreed not to transfer, assign or sell any of their Founder Shares or private placement units, or the securities underlying the private placement units, including the Placement Shares, until one year after the date of the consummation of our initial business combination. Notwithstanding the foregoing, (1)if the last sale price of our common stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 90 days after our initial business combination, or (2)if we consummate a liquidation, merger, stock exchange or other similar transaction after our initial business combination which results in all of our stockholders having the right to exchange their shares of common stock for cash, securities or other property, then the aforenamed securities will be released from the lock-up. Permitted transferees would be subject to the same restrictions and other agreements of our initial stockholders with respect to any such securities.
In order to meet our working capital needs, our Sponsor, executive officers and directors, or their affiliates may, but are not obligated to, loan us funds, from time to time or at any time, in whatever amount they deem reasonable in their sole discretion. Up to $1,500,000 of such loans may be convertible into additional units of the post-business combination entity at a price of $10.00 per unit at the option of the lender.
The holders of our Founder Shares issued and outstanding, as well as the holders of the private placement units and any units our Sponsor, officers, directors or their affiliates may be issued in payment of working capital loans made to us (and all underlying securities), will be entitled to registration rights pursuant to an agreement to be signed prior to or on the effective date of this offering. The holders of a majority of these securities are entitled to make up to three demands that we register such securities. The holders of a majority of the Founders private placement units or units issued in payment of working capital loans made to us (or underlying securities) can elect to exercise these registration rights at any time after we consummate a business combination. Notwithstanding the foregoing, EarlyBird, Northland Investment, and Northland may not exercise their demand and piggyback registration rights after five and seven years, respectively, after the effective date of the registration statement, June5, 2019 and may not exercise their demand rights on more than one occasion.
An affiliate of our Sponsor, GigFounders, LLC, has agreed that, commencing on the effective date of the registration statement, June5, 2019, through the earlier of our consummation of our initial business combination or our liquidation, it will make available to us certain general and administrative services, including office space, utilities and administrative support, as we may require from time to time. We have agreed to pay it an aggregate of $20,000 per month for these services. Dr.AviS. Katz, our Executive Chairman of the Board of Directors, is the manager of our Sponsor, and is also the managing member of GigFounders, LLC. In addition, he and Mr.Miotto, one of our independent directors, are the members of GigFounders, LLC, of which 90% is owned by Dr.Katz and the remaining 10% is owned by Mr.Miotto, and that partnership has a financial and voting interest in our Sponsor that entitles this partnership to participate in any economic return that the Sponsor receives for its investment in the Company in accordance with terms negotiated with the other holders of financial and voting interests in our Sponsor. Mr.Miottos minority interest in GigFounders, LLC is passive as he does not participate in the governance of GigFounders, LLC. In addition, Messrs. Mikulsky and Frostig, our other two independent directors, each have a financial and voting interest in our Sponsor that entitles each of them to participate in any economic return that the Sponsor receives for its investment in the Company in accordance with terms negotiated with the other holders of financial and voting interests in our Sponsor. Accordingly, they will benefit from the transaction to the extent of their interest in our Sponsor. The arrangement that we have with GigFounders, LLC is solely for our benefit and is not intended to provide our officers or directors compensation in lieu of a salary. We believe, based on rents and fees for similar services in the San Francisco Bay Area, that the fee charged by our Sponsor is at least as favorable as we could have obtained from an unaffiliated person.
In conjunction with our services agreement with GigFounders, LLC and in connection with GigFounders, LLCs affiliation with our Sponsor, we have a licensing arrangement with GigFounders, LLC whereby we are permitted to use their Private-to-Public Equity (PPE) TM and Mentor-Investor TM trademarks.
On March20, 2019, we entered into a Strategic Services Agreement with Tara McDonough, our former Vice President and Chief Financial Officer at an hourly rate of $200 per hour, which was effective through August12, 2019, Ms.McDonoughs last day providing services to us. On August6, 2019, we entered into a Strategic Services Agreement with Brad Weightman, our current Vice President and Chief Financial Officer at a monthly rate of $10,000 per month.
The Working Capital Note is convertible at the Sponsors election upon the consummation of the proposed business combinations, described in the Companys Current Report on Form 8-K as filed with the Securities and Exchange Commission on November23, 2020 (the Business Combinations) and also described in the Business Combination section of Item8.
Other than the foregoing and as described in this paragraph, no compensation or fees of any kind, including finders, consulting fees and other similar fees, will be paid to our Sponsor, members of our management team or their respective affiliates, for services rendered prior to or in connection with the consummation of our initial business combination (regardless of the type of transaction that it is). However, such individuals will receive the repayment of any loans from our Sponsor, officers and directors for working capital purposes and reimbursement for any out-of-pocket expenses incurred by them in connection with activities on our behalf, such as identifying potential target businesses, performing business due diligence on suitable target businesses and business combinations as well as traveling to and from the offices, plants or similar locations of prospective target businesses to examine their operations. Our Board of Directors may also approve the payment of advisory fees for such activities, including board committee service, and extraordinary administrative and analytical services. Our independent directors will review on a quarterly basis all payments that were made to our Sponsor, executive officers or our or their affiliates.
Dr.Katz, our Secretary and Executive Chairman of the Board of Directors, and Dr.Raluca Dinu, one of our directors and our President and Chief Executive Officer, are husband and wife.
Dr.Katz and Messrs. Miotto and Mikulsky are on the boards of directors of Kaleyra, Inc., Drs. Katz and Dinu and Messrs. Miotto and Mikulsky are on the board of directors of GigCapital3, Inc., Drs. Katz and Dinu and Messrs. Miotto and Betti-Berutto are on the board of directors of GigCapital4, Inc., Drs. Katz and Dinu and Mr.Miotto are on the board of directors of GigCapital5, Inc., and Drs. Katz and Dinu and Mr.Wang are on the board of directors of GigCapital6, Inc.
### Related Party Policy
Our Code of Ethics will require us to avoid, wherever possible, all related party transactions that could result in actual or potential conflicts of interests, except under guidelines approved by the Board of Directors (or the audit committee).
Our audit committee, pursuant to its written charter, will be responsible for reviewing and approving related- party transactions to the extent we enter into such transactions. No director may participate in the approval of any transaction in which he is a related party, and that director is required to provide the audit committee with all material information concerning the transaction.
To further minimize conflicts of interest, we have agreed not to consummate an initial business combination with an entity that is affiliated with any of our Sponsor or management team including (i)an entity that is either a portfolio company of, or has otherwise received a material financial investment from, any private equity fund or investment company (or an affiliate thereof) that is affiliated with any of the foregoing, (ii)an entity in which any of the foregoing or their affiliates are currently passive investors, (iii)an entity in which any of the foregoing or their affiliates are currently officers or directors, or (iv)an entity in which any of the foregoing or their affiliates are currently invested through an investment vehicle controlled by them, unless we have obtained an opinion from an independent investment banking firm, or another independent entity that commonly renders valuation opinions on the type of target business we are seeking to acquire, and the approval of a majority of our disinterested independent directors that the business combination is fair to our unaffiliated stockholders from a financial point of view.
### Item14.
(1)
Audit Fees.
(2)
Audit-Related Fees. These services include attest services that are not required by statute or regulation and consultation concerning financial accounting and reporting standards, including permitted due diligence services related to a potential business combination.
(3)
Tax Fees.
(4)
All Other Fees.
### PART IV
Item15.<|endoftext|>### Explanatory Note
Procyon Corporation (the "Company") is filing this Amendment No. 1 (the "Amendment") to its Annual Report on Form 10-K for the fiscal year ended June 30, 2021 (the "Fiscal 2021 Form 10-K"), as filed with the Securities and Exchange Commission on October 8, 2021 solely to make certain restatements to the accompanying financial statements for the year ended June 30, 2021 related to accruing certain incentive bonuses earned by three executive officers, and notes thereto, and to amend figures contained in the Managements Discussion and Analysis of Financial Condition and Results of Operations and Summary Compensation Table contained in Item 11, Executive Compensation. The financial statements for the year ended June 30, 2020 were not restated.
Except as it relates to the provision of the information described above, this Amendment does not reflect subsequent events occurring after the original filing date of the Fiscal 2021 Form 10-K or modify or update in any way disclosures made in the Fiscal 2021 Form 10-K.
Pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), this Amendment also contains new certifications of the Companys principal executive officer and principal financial officer pursuant to Section 302 and 906 of the Sarbanes-Oxley Act of 2002. These certifications are attached to this Amendment as Exhibits.
INDEX
PART II
ITEM 7.
MANAGEMENT
Deferred Income Taxes
Deferred income taxes are recognized for the expected tax consequences in future years for differences between the tax bases of assets and liabilities and their financial reporting amounts, based upon exacted tax laws and statutory tax rates applicable to the periods in which the differences are expected to affect taxable income. The Company accounts for income taxes under Topic 740 - Income Tax in the Accounting Standards Codification. A valuation allowance is used to reduce deferred tax assets to the net amount expected to be recovered in future periods. The estimates for deferred tax assets and the corresponding valuation allowance require us to exercise complex judgments. We periodically review and adjust those estimates based upon the most current information available. We had a valuation allowance of $144,619 as of June 30, 2020. We had no valuation allowance as of June 30, 2021.
### Results of Operations
Comparison of Fiscal 2021 and 2020
During fiscal 2021 and 2020, our results of operations related solely to the operations of AMERX. Net sales during fiscal 2021 were approximately $4,720,000 as compared to approximately $4,334,000 in fiscal 2020, an increase of approximately $386,000 or 9%. Sales grew through continued sales of core brands combined with growth in new product brand sales.
Cost of sales were approximately $1,331,000 in fiscal 2021, as compared to approximately $1,135,000 in fiscal 2020, an increase of approximately $196,000 or 17%. Cost of sales in fiscal 2021, as a percentage of net sales, increased to 28%, from 26% in the previous fiscal year ending 2020.
Gross profit increased to approximately $3,389,000 during fiscal 2021, as compared to approximately $3,199,000 during fiscal 2020, an increase of about $189,000, or 6%. As a percentage of net sales, gross profit was approximately 72% in fiscal 2021 as compared to 74% in fiscal 2020.
Operating expenses during fiscal 2021 were approximately $3,162,000, consisting of approximately $1,832,000 in salaries and benefits and $1,330,000 in selling, general and administrative expenses. Operating expenses in fiscal 2020 were approximately $3,046,000 and consisted of approximately $1,730,000 in salaries and benefits and approximately $1,317,000 in selling, general and administrative expenses. This represents an increase in expenses of approximately $116,000 in fiscal 2021 over the operating expenses in fiscal 2020. As a percentage of net sales, operating expenses during fiscal 2021 were 67% as compared to 70% during fiscal 2020; as gross profit increased approximately $189,000 for the year on an approximately $116,000 increase in operating expenses. Salaries and Benefits increased slightly. Selling, General and Administrative expenses increased primarily due to shipping expense increases from increased sales.
Income from operations finished at approximately $227,000 in 2021, as compared to approximately $153,000 in fiscal 2020. Income before income taxes finished at approximately $734,000 in 2021, as compared to income of approximately $160,000 in 2020. Net income (after dividend requirements for Preferred Shares) was approximately $678,000 during fiscal 2021, compared to approximately $95,000 of net income during fiscal 2020. The Company recorded approximately $39,000 of income tax expense when determining the net income available to common shares in fiscal 2021, compared to $48,000 in fiscal 2020.
Management believes it is more likely than not that the tax benefit of approximately $446,000 of NOL carryforwards will be realized. Therefore, management did not provided valuation allowance. Management will continue to evaluate its operating results each reporting period and assess whether it will be able to utilize all available NOL carryforwards before expiration.
Historically, we have financed our operations through revenues from operations. As of June 30, 2021, our principal sources of liquidity included inventories of approximately $591,000, net accounts receivable of approximately $497,000, cash of approximately $1,227,000, and certificates of deposit of approximately $280,000. We had net working capital of approximately $2,136,000 at June 30, 2021.
Operating activities provided cash of approximately $280,000 during fiscal 2021, and approximately $199,000 during fiscal 2020, consisting primarily of an increase in net income of approximately $694,000, in fiscal 2021 and an decrease in inventory, in fiscal 2020. Cash provided by investing activities during fiscal 2021 was approximately $480,000 as compared to cash used by investing activities in fiscal 2020 of approximately $24,000, respectively. Cash used in financing activities during fiscal 2021 was $199,000 compared cash provided by financing activities of $201,000 during fiscal 2020, respectively.
During fiscal 2021, no holder of shares of Preferred Stock converted its shares to Common Stock.
ITEM 8.
Consolidated financial statements as of June 30, 2021, and 2020 were audited by Ferlita, Walsh, Gonzalez and Rodriguez, P.A., the Companys independent auditors, as indicated in their report included appearing at page F-1.
ITEM 11.
EXECUTIVE COMPENSATION.
The following table sets forth compensation information for the two fiscal years ended June 30, 2021 and 2020 of the Companys Chief Executive Officer, Chief Financial Officer, the President and Vice President of Sales of our subsidiary, AMERX Health Care Corp. (the Named Executive Officers). Elements of compensation for our Named Executive Officers include salary, discretionary cash bonuses, stock option awards and other prerequisites and benefits. We do not have a pension plan and do not offer non-qualified deferred compensation arrangements.
1.
Aggregate grant date fair value. 25,000 options granted with $0.373 exercise price.
2.
Profit sharing earned in fiscal 2020/2021 respectively, but paid on or about October 1, 2020/2021 respectively.
### Named Executive Officer's Employment Contracts
Justice W. Anderson's Restated and Amended Executive Employment Agreement, which is effective July 1, 2021, provides for a base annual salary of $257,000 and other benefits, including certain incentive bonus compensation based upon Amerx achieving certain financial goals for sales and net profit and at the discretion of the Board of Directors. Mr.
James B. Anderson's Restated and Amended Executive Employment Agreement, which is effective July 1, 2021, provides for a base annual salary of $187,200 and other benefits, including short-term and long-term incentive bonus compensation based upon Amerx achieving certain operational and financial goals and at the discretion of the Board of Directors. Mr.
George Borak's Restated and Amended Executive Employment Agreement, which is effective July 1, 2021, provides for a base annual salary of $187,200 and other benefits, including certain incentive bonus compensation based upon Amerx achieving certain financial goals for sales and net profit and at the discretion of the Board of Directors. Mr. Borak's Agreement calls for a term of one year, but may be terminated by either party, with or without cause, upon thirty day's written notice.
An Agreement to grant 25,000 options to purchase common stock was executed and delivered to Justice Anderson, pursuant to his Restated and Amended Executive Employment Agreement dated July 1, 2020 on September 24, 2021, but was granted and effective on June 30, 2021.
An Agreement to grant 25,000 options to purchase common stock was executed and delivered to James Anderson, pursuant to his Restated and Amended Executive Employment Agreement dated July 1, 2020 on September 24, 2021, but was granted and effective on June 30, 2021.
An Agreement to grant 40,000 Options to purchase common stock was executed and delivered to Justice Anderson, pursuant to his executive employment agreement, on September 27, 2016, but with a grant date of June 30, 2016.
An Agreement to grant 25,000 Options to purchase common stock was executed and delivered to Justice Anderson, pursuant to his executive employment agreement, on August 23, 2017, but with a grant date of June 30, 2017.
ITEM 15.
(a)
Exhibits
1.
The financial statements filed herewith are listed in the Index to Financial Statements included in Item 7.
Exhibit No.
Document x
31.1
Certification of Justice W.
31.2
Certification of James B.
32.1
1350, as Adopted Pursuant to Section906 of the Sarbanes-Oxley Act Of 2002
101.1
The following materials from the Company's Annual Report on Form 10-K/A for the period ended June 30, 2021, formatted as XBRL (Extensible Business Reporting Language): (I) the Condensed Balance Sheets, (ii) the Condensed Consolidated Statements of Operations, (iii) the Consolidated Statements of Cash Flows, and (iv) the Notes to Condensed Consolidated Financial Statements x
Filed herewith.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Are presently exercisable or that may become exercisable within 60 days, 20,000 RSUs that will vest within 60 days, and 3,495 shares that may be acquired upon the exercise of certain warrants. Excludes 545,037 shares that may be acquired upon the exercise of certain stock options that are not presently exercisable and that will not become exercisable within 60 days.
(3)
Includes 169,688 shares that may be acquired through the exercise of stock options that are presently exercisable or that may become exercisable within 60 days. Excludes 561,112 shares that may be acquired upon the exercise of certain stock options that are not presently exercisable and that will not become exercisable within 60 days.
(4)
Includes 323,000 shares that may be acquired through the exercise of stock options that are presently exercisable or that may become exercisable within 60 days. Excludes 139,331 shares that may be acquired upon the exercise of certain stock options that are not presently exercisable and that will not become exercisable within 60 days.
(5)
Includes 384,111 shares held solely by Mr. Kingsley, and 75,345 shares held by Greenbelt Corp. and 18,767 shares held by Greenway Partners, LP, which are affiliates of Mr. Kingsley. Mr. Kingsley disclaims beneficial ownership of 15,069 shares held by Greenbelt Corp. Includes 281,300 shares that may be acquired through the exercise of stock options that are presently exercisable or that may become exercisable within 60 days.
(6)
Includes 146,520 shares that may be acquired through the exercise of stock options that are presently exercisable or that may become exercisable within 60 days and 52,447 shares that may be acquired upon the exercise of certain warrants.
(7)
Includes 146,520 shares that may be acquired through the exercise of stock options that are presently exercisable or that may become exercisable within 60 days and 6,993 shares that may be acquired upon the exercise of certain warrants.
(8)
Includes 156,520 shares that may be acquired through the exercise of stock options that are presently exercisable or that may become exercisable within 60 days and 52,447 shares that may be acquired upon the exercise of certain warrants. Excludes 62,000 shares that may be acquired upon the exercise of certain stock options that are not presently exercisable and that will not become exercisable within 60 days.
(9)
Includes 45,000 shares that may be acquired through the exercise of stock options that are presently exercisable or that may become exercisable within 60 days.
(10)
(11)
Includes 2,292,509 shares and that may be acquired upon the exercise of certain stock options that are presently exercisable or that may become exercisable within 60 days, 126,221 RSUs that will vest within 60 days, and 132,864 shares that may be acquired upon the exercise of certain warrants. Excludes 3,089,148 shares that may be acquired upon the exercise of certain stock options that are not presently exercisable and that will not become exercisable within 60 days, and 65,000 RSUs that are currently unvested and will not vest within 60 days.
Item 13.
Shared Facilities Agreement and Relationship with Lineage
During 2009 Oncocyte and Lineage entered into a Shared Facilities Agreement pursuant to which Lineage provided Oncocyte with the use of office and laboratory facilities, laboratory and office equipment and supplies, utilities, insurance, and the services of Lineage employees and contractors, for which we have reimbursed Lineage, either through cash payments, shares of our common stock, or delivering convertible promissory notes. Lineage provided us with the use of its facilities, equipment and supplies, utilities, and personnel at its cost until 2016, and at its cost plus 5% thereafter. Oncocyte ceased using shared services from Lineage during October 2019 and ceased using Lineages office and laboratory facilities under the Shared Facilities Agreement effective December 31, 2019 at which time the Shared Facilities Agreement terminated. Total fees incurred under the Shared Facilities Agreement during 2019 were $1.2 million, which have been paid in full.
Prior to January 7, 2021, Lineage beneficially owned more than 5% of the outstanding shares of Oncocyte common stock. Alfred D. Kingsley, who is a member of our Board of Directors, is also a director of Lineage. Broadwood Partners, L.P. (Broadwood) beneficially owns more than 5% of the outstanding common shares of Lineage. All of our directors and beneficial owners of more than 5% of our outstanding common stock (5% Shareholders) as reported in this Report, in the aggregate beneficially own more than 20% of the outstanding common shares of Lineage. The fact that certain of our directors and 5% Shareholders own Lineage common shares should not be considered to mean that they constitute or are acting in concert as a group with respect to those shares or that they otherwise share power or authority to vote or dispose of the shares that each of them own.
### Certain Sales of Equity Securities
During March 2018, Oncocyte entered into securities purchase agreements with Broadwood and George Karfunkel, each of whom beneficially own more than 5% of our outstanding common stock, pursuant to which Broadwood purchased 3,968,254 shares of common stock, and Mr. Karfunkel purchased 3,968,254 shares of common stock for $1.26 per share. Under the securities purchase agreements, we agreed to register the shares for resale under the Securities Act of 1933, as amended (the Securities Act), not later than 60 days after the closing of the sale of the shares. We also agreed to pay liquidated damages calculated in the manner provided in the securities purchase agreement if we did not file the registration statement in a timely manner. Because the registration statement was not filed as required by the securities purchase agreement, during 2019 we paid $300,000 to Broadwood on account of liquidated damages owed.
During February 2019, Broadwood purchased 533,333 shares of our common stock for $3.75 per share, the same price paid by other investors, in an underwritten public offering of our common stock.
During November 2019, we sold a total of 5,058,824 shares of common stock for $1.70 per share in cash in an offering registered under the Securities Act. Broadwood purchased 1,176,471 shares, and certain funds and accounts managed by Pura Vida Investments, LLC (Pura Vida) purchased 2,941,176 shares, on the same terms as other investors.
During January 2020, we sold 768,376 shares of common stock to Broadwood, and 2,755,400 shares of common stock to certain funds and accounts managed by Pura Vida, for $2.156 per share in an offering registered under the Securities Act.
During April 2020, we sold a total of 4,733,700 shares of common stock for $2.27 per share in cash in an offering registered under the Securities Act. Broadwood purchased 1,050,000 shares, and certain funds and accounts managed by Pura Vida Investments purchased 600,000 shares, on the same terms as other investors.
During January 2021, we sold a total of 7,301,410 shares of our common stock for $3.424 per share in an offering registered under the Securities Act. Broadwood purchased 1,460,280 shares, and certain funds and accounts managed by Pura Vida Investments purchased 5,841,130 shares, on the same terms as other investors.
During February 2021, we sold a total of 8,947,000 shares of our common stock for $4.50 per share in an offering registered under the Securities Act. Broadwood purchased 600,000 shares on the same terms as other investors.
### Director Independence
Our Board of Directors has determined that Andrew Arno, Jennifer Levin Carter, Melinda Griffith, Alfred D. Kingsley, Andrew Last, and Cavan Redmond, qualify as independent in accordance with Rule 5605(a)(2) of The Nasdaq Stock Market LLC (Nasdaq). The members of our Audit Committee meet the additional independence standards under Nasdaq Rule 5605(c)(2) and Rule 10A-3 under the Securities Exchange Act of 1934, as amended (the Exchange Act), and the members of our Compensation Committee meet the additional independence standards under Nasdaq Rule 5605(d)(2). Our independent directors received no compensation or remuneration for serving as directors except as disclosed under CORPORATE GOVERNANCECompensation of Directors. None of these directors, nor any of the members of their respective families, have participated in any transaction with us that would disqualify them as independent directors under the standards described above. Ronald Andrews does not qualify as independent because he is our Chief Executive Officer and President.
Item 14.
OUM & Co., LLP (OUM) has served as our independent registered public accountants since the fourth quarter of 2015, and audited our annual consolidated financial statements for the fiscal years ended December 31, 2020 and 2019.
Audit Fees, Audit Related Fees, Tax Fees and Other Fees
The following table sets forth the aggregate fees billed to us during the fiscal years ended December 31, 2020 and 2019 by OUM:
(1)
Audit Fees consist of fees billed for professional services rendered for the audit of Oncocytes annual consolidated financial statements included in our Annual Report on Form 10-K, and review of the interim consolidated financial statements included in our Quarterly Reports on Form 10-Q, as applicable, and services that are normally provided by our independent registered public accountants in connection with statutory and regulatory filings or engagements.
(2)
This category includes fees related to non-routine SEC filings.
Pre-Approval of Audit and Permissible Non-Audit Services
Our Audit Committee requires pre-approval of all audit and non-audit services. Other than de minimis services incidental to audit services, non-audit services shall generally be limited to tax services such as advice and planning and financial due diligence services. All fees for such non-audit services must be approved by the Audit Committee, except to the extent otherwise permitted by applicable SEC regulations. The Committee may delegate to one or more designated members of the Committee the authority to grant pre-approvals, provided such approvals are presented to the Committee at a subsequent meeting. During 2020, all of the fees paid to OUM were approved by the Audit Committee.
### PART IV
Item 15.<|endoftext|>Pursuant to an agreement to be entered into on or prior to the Initial Public Offering, our sponsor, upon and following consummation of an initial business combination, will be entitled to nominate three individuals for appointment to our board of directors, as long as the sponsor holds any securities covered by the registration and shareholder rights agreement.
Subject to phase-in rules and a limited exception, the rules of NYSE and Rule 10A-3 of the Exchange Act require that the audit committee of a listed company be comprised solely of independent directors. Subject to phase-in rules and a limited exception, the rules of NYSE require that the compensation committee of a listed company be comprised solely of independent directors. The charter of each committee is available on our website at [IDX] ygg.
### com/
Audit Committee
Sujay Jaswa, Hugo Barra and Julie Herendeen serve as members of our audit committee. Our board of directors has determined that each of Sujay Jaswa, Hugo Barra and Julie Herendeen are independent. Sujay Jaswa will serve as the Chairman of the audit committee. Each member of the audit committee meets the financial literacy requirements of NYSE and our board of directors has determined that qualifies as an audit committee financial expert as defined in applicable SEC rules and has accounting or related financial management expertise.
monitoring compliance on a quarterly basis with the terms of our filings and, if any noncompliance is identified, immediately taking all action necessary to rectify such noncompliance or otherwise causing compliance with the terms of our filings;
### Nominating Committee
The members of our nominating committee are Justin Kan and Steve Huffman. Justin Kan will serve as chairman of the nominating committee. Our board of directors has determined that each of Steve Huffman and Justin Kan are independent.
The guidelines for selecting nominees, which are specified in the nominating committees charter, provides that persons to be nominated: should have demonstrated notable or significant achievements in business, education or public service;
### Compensation Committee
The members of our compensation committee are Julie Herendeen and Justin Kan, and Julie Herendeen will serve as chairman of the compensation committee.
Our board of directors has determined that each of Julie Herendeen and Justin Kan are independent.
### Code of Ethics
The Code of Ethics is available on our website.
Conflicts of Interest
Each of our officers and directors presently has, and any of them in the future may have additional, fiduciary or contractual obligations to another entity, including private funds under the management of Vy Capital and their respective portfolio companies, pursuant to which such officer or director is or will be required to present a business combination opportunity to such entity. Our amended and restated articles of association provides that we renounce our interest in any corporate opportunity offered to any director or officer unless such opportunity is expressly offered to such person solely in his or her capacity as a director or officer of the company and such opportunity is one we are legally and contractually permitted to undertake and would otherwise be reasonable for us to pursue, and to the extent the director or officer is permitted to refer that opportunity to us without violating another legal obligation.
Our sponsor subscribed for founder shares prior to Initial Public Offering and purchased private placement warrants in a transaction that closed simultaneously with Initial Public Offering.
Further, we reimburse our sponsor for office space, secretarial and administrative services provided to us in the amount of $10,000 per month.
If we execute a letter of intent, term sheet, agreement in principle or definitive agreement for an initial business combination with a company that is competitive with Facebook, each of Hugo Barra and Javier Olivan have agreed to resign from our board of directors.
Accordingly, any indemnification provided will only be able to be satisfied by us if (i) we have sufficient funds outside of the trust account or
(ii) we consummate an initial business combination.
### Item 11. Executive Compensation
Commencing on the Initial Public offering through the earlier of consummation of our initial business combination and our liquidation, we will reimburse our sponsor for office space, secretarial and administrative services provided to us in the amount of $10,000 per month.
### Item 12.
The following table sets forth information regarding the beneficial ownership of our ordinary shares as of March 1, 2021 based on information obtained from the persons named below, with respect to the beneficial ownership of our ordinary shares, by: each person known by us to be the beneficial owner of more than 5% of our issued and outstanding ordinary shares;
The following table
In the table below, percentage ownership is based on 57,500,000 Class A ordinary shares and 14,375,000 Class B ordinary shares outstanding as of the completion of our Initial Public Offering.
*
Less than one percent.
(1)
The business address of each of these entities and individuals is Floor 4, Willow House, Cricket Square, Grand Cayman, KY1-9010, Cayman Islands.
(2)
Interests shown consist solely of founder shares classified as Class B ordinary shares.
(3)
Our sponsor is controlled by Mr. Tamas and Mr. Hering. As such, Mr. Tamas and Mr. Hering have voting and investment discretion with respect to the Class B ordinary shares held of record by our sponsor and may be deemed to have shared beneficial ownership of the Class B ordinary shares held directly by our sponsor.
(4)
Does not include any shares indirectly owned by this individual as a result of his or her indirect ownership interest in our sponsor
(5)
Includes Class A ordinary shares owned by Hayman Capital Management, LP, Hayman Capital Master Fund, LP as the investment adviser to and general partner of the Hayman Capital Master Fund, and J. Kyle Bass, a US citizen as the Managing Partner of, and may be deemed to beneficially own securities owned by Hayman. The address of the principal business office of each of the Reporting Persons is 2305 Cedar Springs Road, Suite 400, Dallas, Texas 75201.
(6)
Includes Class A ordinary shares owned by Alyeska Investment Group, LP, Alyeska Fund GP, LLC, and Anand Parekh, a US citizen. The address of the principal business office of each of the Reporting Persons is 77 West Wacker Drive, 7th Floor, Chicago, Illinois 60601.
(7)
Integrated Core Strategies (US) LLC ("Integrated Core Strategies"), beneficially owned 2,100,000 of the Issuers shares as a result of holding 1,920,000 shares and 180,000 of the Issuers units; and ICS Opportunities, Ltd., ("ICS Opportunities"), beneficially owned 555,974 shares as a result of holding 555,974 units, which together with the shares beneficially owned by Integrated Core Strategies represented 2,655,974 of the shares or 4.6% of the Issuers shares outstanding. Millennium International Management LP ("Millennium International Management"), is the investment manager to ICS Opportunities and may be deemed to have shared voting control and investment discretion over securities owned by ICS Opportunities. Millennium Management LLC ("Millennium Management"), is the general partner of the managing member of Integrated Core Strategies and may be deemed to have shared voting control and investment discretion over securities owned by Integrated Core Strategies. Millennium Group Management LLC ("Millennium Group Management"), is the managing member of Millennium Management and may also be deemed to have shared voting control and investment discretion over securities owned by Integrated Core Strategies. Englander, a United States citizen currently serves as the sole voting trustee. Therefore, Mr. Englander may also be deemed to have shared voting control and investment discretion over securities owned by Integrated Core Strategies and ICS Opportunities. The business address of all of the reporting parties is 666 Fifth Avenue, New York, NY 10103.
### Changes in Control
None.
Item 13.
On August 19, 2020, our sponsor paid $25,000, or approximately $0.002 per share, to cover certain offering costs in consideration for 14,375,000 founder shares.
Our sponsor has purchased 9,000,000 private placement warrants for a purchase price of $13,500,000 in a private placement that occurred simultaneously with the closing of our Initial Public Offering. As such, our sponsors interest in the Initial Public Offering is valued at $13,500,000.
As more fully discussed in the section of this Annual Report on Form 10-K entitled Conflicts of Interest, if any of our officers or directors becomes aware of a business combination opportunity that falls within the line of business of any entity to which he or she has then-current fiduciary or contractual obligations, he or she will honor his or her fiduciary or contractual obligations to present such opportunity to such entity.
Director Independence
Our board of directors has determined that Hugo Barra, Julie Herendeen, Steve Huffman, Sujay Jaswa, Justin Kan and Javier Olivan are independent directors as defined in the NYSE listing standards and applicable SEC rules.
Item 14.
Audit Fees
Audit fees consist of fees for professional services rendered for the audit of our year-end financial statements, reviews of our quarterly financial statements and services that are normally provided by our independent registered public accounting firm in connection with statutory and regulatory filings. The aggregate fees billed by WithumSmith+Brown, PC for audit fees, inclusive of required filings with the SEC for the period from August 18, 2020 (inception) to ended December 31, 2020 and of services rendered in connection with our initial public offering, totaled $69,010.
### Audit-Related Fees
During the period from August 18, 2020 (inception) to December 31, 2020, we did not pay WithumSmith+Brown, PC any audit-related fees.
Tax Fees.
During the year ended December 31, 2020, we did not pay WithumSmith+Brown, PC any tax fees.
### All Other Fees.
During the period from August 18, 2020 (inception) to December 31, 2020, we did not pay WithumSmith+Brown, PC any other fees.
PART IV
Item 15.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.
(7)
Includes 15,202 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.
(8)
Includes 16,088 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.
(9)
Includes 4,675 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.
(10)
Includes 64,900 shares of common stock issuable upon the exercise of options that are exercisable on or within 60 days of April 15, 2021.
The following table sets forth additional information as of December 31, 2020 about shares of our common stock that may be issued upon the exercise of options and other rights under our existing equity compensation plans and arrangements. The information includes the number of shares covered by, and the weighted average exercise price of, outstanding options and other rights and the number of shares remaining available for future grants excluding the shares to be issued upon exercise of outstanding options, warrants, and other rights.
ITEM 13.
### Related Person Transaction Policy
In 2016, we adopted a written Related Person Transaction Policy (Policy) that sets forth our policies and procedures for the review and approval or ratification of related person transactions. For purposes of our policy only, a Related Person Transaction is a transaction, arrangement or relationship in which we and any related persons are participants involving an amount that exceeds $120,000. A related person is an executive officer, director, or more than 5% stockholder of any class of our voting securities, including any of their immediate family member.
Any Related Person Transaction proposed to be entered into by the Company must be reported to the Companys General Counsel and shall be reviewed and approved by the Audit Committee of the Board (the Committee) in accordance with the terms of this Policy. If the General Counsel determines that advance approval of a Related Person
Transaction is not practicable under the circumstances, the Committee shall review and, in its discretion, may ratify the Related Person Transaction at the next meeting of the Committee, or at the next meeting following the date that the Related Person Transaction comes to the attention of the General Counsel. Any Related Person Transaction previously approved by the Committee or otherwise already existing that is ongoing in nature shall be reviewed by the Committee annually.
A Related Person Transaction reviewed under this Policy will be considered approved or ratified if it is authorized by the Committee in accordance with the standards set forth in this Policy after full disclosure of the Related Persons interests in the transaction. As appropriate for the circumstances, the Committee shall review and consider: (a) the Related Persons interest in the Related Person Transaction; (b) the approximate dollar value of the amount involved in the Related Person Transaction; (c) the approximate dollar value of the amount of the Related Persons interest in the transaction without regard to the amount of any profit or loss; (d) whether the transaction was undertaken in the ordinary course of business of the Company; (e) whether the transaction with the Related Person is proposed to be, or was, entered into on terms no less favorable to the Company than terms that could have been reached with an unrelated third party; (f) the purpose of, and the potential benefits to the Company of, the transaction; and (g) any other information regarding the Related Person Transaction or the Related Person in the context of the proposed transaction that would be material to investors in light of the circumstances of the particular transaction.
The Committee will review all relevant information available to it about the Related Person Transaction. The Committee may approve or ratify the Related Person Transaction only if the Committee determines that, under all of the circumstances, the transaction is in, or is not inconsistent with, the best interests of the Company. The Committee may, in its sole discretion, impose such conditions as it deems appropriate on the Company or the Related Person in connection with approval of the Related Person Transaction.
There were no Related Person Transactions during fiscal 2020 or 2019.
### Indemnity Agreements
The Company has entered into indemnity agreements with certain officers and directors which provide, among other things, that the Company will indemnify such officer or director, under the circumstances and to the extent provided for therein, for expenses, damages, judgments, fines and settlements he or she may be required to pay in actions or proceedings which he or she is or may be made a party by reason of his or her position as a director, officer or other agent of the Company, and otherwise to the fullest extent permitted under
Delaware law and the Companys Bylaws.
### Independence of the Board
As required under the Nasdaq Stock Market (Nasdaq) listing standards, a majority of the members of a listed companys Board of Directors must qualify as independent, as affirmatively determined by the Board of Directors. The Board consults with the Companys in-house counsel to ensure that the Boards determinations are consistent with relevant securities and other laws and regulations regarding the definition of independence, including those set forth in pertinent listing standards of
### Nasdaq
, as in effect from time to time.
Consistent with these considerations, after review of all relevant identified transactions or relationships between each director, or any of his or her family members, and the Company, its senior management and its independent auditors, the Board has affirmatively determined that the following six directors, representing a majority of the members of the Board, are independent directors within the meaning of the applicable
Nasdaq listing standards: Mr. El-Hibri, Mr. Abdun-Nabi, Mr.Grant, Dr.Harsanyi, Ms.Kunz and Dr.Niederhuber. In making this determination, the Board found that none of these directors had a material or other disqualifying relationship with the Company. In determining that Mr. El-Hibri and Mr. Abdun-Nabi were independent, the Board considered their respective roles at Emergent, and previous transactions between the Company and Emergent. As Mr. White serves as our President and Chief Executive Officer, he is not independent. Additionally, in accordance with our Corporate Governance Guidelines, the Board determined that all members of the Audit, Compensation, and Nominating and Corporate Governance (Nom/Gov) committees of the Board are independent. Additionally, information regarding our Board committees and their members is provided below.
86% Board Independence
100% Committee Independence for Audit, Compensation, and Nom/Gov Committees
ITEM 14.
As described in the Companys Current Report on Form 8-K filed on August 27, 2020, on August 25, 2020 the Audit Committee determined to change the Companys independent accounting firm effective as of such date and notified Ernst & Young LLP, the Companys then-current independent accounting firm, of its dismissal.On August 26, 2020, the Audit Committee engagedMoss Adams LLPto serve as the independent accounting firm for the Company, effective as of such date.
The following table summarizes the fees of Moss Adams LLP, our Independent Registered Public Accounting Firm, billed to us for their audit and other services for the year ended December 31, 2020, as well as Ernst& Young LLP, our former Independent Registered Public Accounting Firm, billed to us for audit and other services for the years ended December 31, 2019 and 2020. The audit fees include an estimate of amounts not yet billed.
For the year ended December 31, 2020, fees paid or accrued to Moss Adams LLP were:
For the year ended December 31, 2020, fees paid or accrued to Ernst & Young LLP were:
### Audit Fees.
Audit fees consist of fees from our principal auditor for the audit of our consolidated financial statements and other professional services provided in connection with statutory and regulatory filings or engagements and comfort letters.
Pre-Approval Policies and Procedures
The Audit Committee has policies and procedures that require the pre-approval by the Audit Committee (or one of its members) of all services performed by the Companys independent registered public accounting firm and related fee arrangements. In the first half of each year, the Audit Committee approves the proposed services, including the nature, type and scope of services contemplated, and the related fees, to be rendered by these firms during the year. In accordance with this policy, the Audit Committee or one of its members pre-approved all services to be performed by the Companys independent registered accounting firm.
PART IV
ITEM 15.
(a)Consolidated Financial Statements and Schedules
Incorporated by reference from Item8 of the Original Form 10-K.
(b)Exhibits
The exhibits required to be filed as part of this Form 10-K/A are listed in the exhibit index below and are incorporated herein by reference.
(c)Financial Statement Schedules
None.
### Exhibits
The following is a list of exhibits required by Item601 of RegulationS-K filed as part of this Form 10-K/A. The exhibit index below includes the FormType and Filing Date of the previous filing and the location of the exhibit in the previous filing which is being incorporated by reference herein.
EXHIBIT INDEX
*
Document has been furnished, is not deemed filed and is not to be incorporated by reference into any of the Company's filings under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, irrespective of any general incorporation language contained in any such filing.
Confidential treatment granted from the Securities and Exchange Commission as to certain portions, which portions have been omitted and filed separately with the Securities and Exchange Commission.
C
Management contract or compensatory plan.
+
Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. Aptevo will furnish copies of any such schedules to the Securities and Exchange Commission upon request.<|endoftext|>June 14, 2019 the company signed a 6 month lease on a 8,000 sq. ft. facility located in outer Goldendale and monthly lease cost is $2,000. The total lease payments for 2020 were $24,000.
As of December 31, 2020 the company has not remitted all of the backup withholdings, which could result in material trust-fund penalties from the internal revenue service.
### NOTE - 11 SUBSEQUENT EVENTS
Subsequent to December 31, 2020 the company has procured funding by the issue of 1 convertible note. On January 29, we issued a $35K, 12-month, 10% interest note to RB Capital.
Subsequent to December 31, 2020 the company performed a reverse stock split in the ratio of 1 for 40 on February 22, 2021.
Subsequent to December 31, 2020 the company issued 68,874 new shares to Cede & company.
In accordance with ASC 855, the Company has analyzed its operations subsequent to December 31, 2020 through the date these financial statements were issued, and has determined that it does not have any other material subsequent events to disclose in these financial statements.
ITEM 9.
None.
### ITEM 9A. CONTROLS AND PROCEDURES
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports pursuant to the Securities Exchange Act, of 1934, as amended, or the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the rules and forms, and that such information is accumulated and communicated to us, including our chief executive officer and chief financial officer, as appropriate, to allow timely decisions regarding required disclosure.
As required by Rules 13a-15(b) of the Exchange Act, an evaluation as of December 31, 2020 was conducted under the supervision and with the participation of our management, including our chief executive officer and chief financial officer, of the effectiveness of our disclosure controls and procedures, as defined in Rules13a-15(e) and 15d-15(e) under the Exchange Act. Based upon that evaluation, our chief executive officer and chief financial officer concluded that our disclosure controls and procedures were not effective as of December 31, 2020.
(b)
Report of Management on Internal Control over Financial Reporting
We are responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is defined in Rule 13a-15(f) and 15d-15(f) of the Exchange Act. Under the supervision and with the participation of our management including of our chief executive officer and principal financial officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the 2013 framework in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission, or COSO.
Based on our evaluation under the 2013 Internal Control-Integrated Framework, our chief executive officer and chief financial officer concluded that our internal control over financial reporting was not effective as of December 31, 2020.
(c)
There have been no other changes in our internal control over financial reporting that occurred during the period covered by this Annual Report on Form 10-K for the year ended 2020, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
### ITEM 9B. OTHER INFORMATION
There are no other disclosures at this time.
PART III
ITEM 10.
Our directors and executive officers and their respective ages, positions, term of office and biographical information are set forth below.
Our bylaws require at least three directors to serve for a term of one year or until they are replaced by a qualified director. Our executive officers are chosen by our board of directors and serve at its discretion. There are no existing family relationships between or among any of our executive officers or directors.19
### John Sprovieri
CEO/Director, Age 72
John Sprovieri's background is in Mechanical Engineering being in the manufacturing industry for many years. He is an American, born in Australia and moved permanently to the US in 1994. He and his wife, Mary have been married nearly 51 years and have no children.
In 1975, Mr. Sprovieri developed an Australian agricultural/industrial tractor line and developed both the manufacturing and marketing segments of his company. The corporation produced nearly 500 units over the next 14 years until he sold the company to Just Australia China Holdings Ltd. (JACH) with interests in China, Korea and Russia. The company was operating profitably at the time it was sold. JACH were setting up overseas operations and were going to manufacture in China or South Korea. He stayed on with the corporation liaising with overseas licensed manufacturers and markets. He traveled extensively into Europe, USSR, the Middle East and North America.
Following completion of his obligations to JACH in 1993, he researched the US West Coast Market for Affordable Housing development opportunities. In 1997 Mr. Sprovieri launched an interstate transport company and was responsible for all facets of management including finance, operations, personnel and government compliance. In 2003, Mr. Sprovieri commenced development of the Auscrete technology and acquired financing to further develop the Cellucon based technology and product with a view to creating an affordable housing manufacturing operation.
During the past 13 years since 2006, Mr. Sprovieri has been principally involved with launching and managing the Auscrete Brand development activities. During this time, he has set up a manufacturing facility, trained personnel, redeveloped technology and started production of Auscrete products in 2008.
### Michael Young VP / CFO Age 67
Mike Young is Auscretes VP of Operations and CFO, he is currently also serving a position with the Company as an interim Director. Mike provides internal operational initiatives supporting compliance, accounting and regulations. He also possesses many years of diverse Management experience within Business and the Transportation Industry.
Mike spent 33 years of earlier life in IT and Broadcast Engineering working in Portland Oregon. His responsibilities included day to day employee Management and Technical Engineering and design of numerous Technologies.
Mike provides extensive internal and financial operational experience and knowledge which allows him to keep Auscretes business both accurate and correct.
### Code of Ethics
Since we have only two persons serving as executive officers and directors and because we have minimal operations, we have not adopted a code of ethics for our principal executive and financial officers. Our board of directors will revisit this issue in the future to determine if adoption of a code of ethics is appropriate. In the meantime, our management intends to promote honest and ethical conduct, full and fair disclosure in our reports to the SEC and comply with applicable governmental laws and regulations.
Corporate Governance
We are a smaller reporting company with minimal operations and only two directors and officers. As a result, we do not have a standing nominating committee for directors, nor do we have an audit committee with an audit committee financial expert serving on that committee. Our entire Board of Directors acts as our nominating and audit committee.
### ITEM 11.-EXECUTIVE COMPENSATION
Our CEO, John Sprovieri currently draws a flat yearly salary of $39,000 ($750 p/week) and our CFO, Mike Young draws a flat yearly salary of $37,440 ($720 p/week).
DIRECTORS COMPENSATION.
ITEM 12.-SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.
The following table sets forth certain information regarding beneficial ownership of our common stock as of December 31, 2020. We did not have any equity compensation plans as of December 31, 2020.
We believe, based on the information furnished to us, that the persons and entities named in the table above have sole voting and investment power with respect to all shares of common stock that they beneficially own.
ITEM 13.-CERTAIN RELATIONSHIPS, AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.
There are no notable outside director and officer related transactions or relationships to report other than minimal advances made by directors to finance interim operations.
ITEM 14.-PRINCIPALACCOUNTING FEES AND SERVICES.
### Audit Fee
The aggregate fees billed for each of the last two fiscal years for professional services rendered by Fruci & Associates II, PLLC for the audit of Auscrete Corporation annual financial statements and review of financial statements included in Auscrete Corporation's 10-Q reports and services normally provided by the Accountant in connection with statutory and regulatory filings or engagements were $19,850 for fiscal year ended 2020 and $14,600 for professional services for fiscal year 2019.
Audit-Related Fees
The aggregate fees billed in each of the last two fiscal years for assurance and related services by the principal Accountant that are reasonably related to the performance of the audit or review of Auscrete Corporation financial statements that are not reported above were $7,450 for fiscal year ended 2020 and $0 for fiscal year ended 2019.
### Tax Fees
The aggregate fees billed in each of the last two fiscal years for professional services rendered by the principal Accountant for tax compliance, tax advice, and tax planning were $0 for fiscal year 2020 and $0 for 2019.
All Other Fees
The aggregate fees billed in each of the last two fiscal years for products and services provided by the principal Accountant, other than the services reported above were $0 for fiscal years ended 2020 and 2019.
We do not have an audit committee currently serving and as a result our board of directors performs the duties of an audit committee. Our board of directors will evaluate and approve in advance, the scope and cost of the engagement of an auditor before the auditor renders audit and non-audit services. We do not rely on pre-approval policies and procedures.
PART IV
### ITEM 15.-EXHIBITS.
Exhibit 31.1 - Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
Exhibit 32.1 - Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Crimson Midstream Holdings and 50% to Crescent Louisiana Midstream, LLC ("CLM"), a 70% owned subsidiary of Crescent Midstream. The amounts billed to Crescent Midstream will reduce a prepaid TSA liability on the Company's books until such time as the TSA liability is reduced to zero. As of March 31, 2021, the prepaid TSA liability related to Crescent Midstream was $1.2 million. For each of the months of February and March, 2021, Crimson billed both Crescent Midstream and CLM $78 thousand for services provided under the TSAs.
As previously disclosed, John D. Grier, a director and Chief Operating Officer of the Company, together with certain affiliated trusts of Mr. Grier (collectively with Mr. Grier, the Grier Members) own an aggregate 50.5% equity interest in
Crimson, which the Company has a right to acquire in the future, pursuant to the terms of the Membership Interest Purchase Agreement, following receipt of California Public Utility Commission ("CPUC") approval for a change of control of Crimson's CPUC regulated assets. Mr. Grier and the Grier Members also retain an aggregate 50.5% equity interest in Crescent Midstream Holdings, which they held prior to the Crimson Transaction. The terms of each of the TSAs described below were reviewed and approved by the Companys Board of Directors in connection with their approval of the Crimson Transaction.
Crimson Midstream Operating, LLC ("CMO") entered into a transition services agreement (the "Administrative TSA") to provide administrative-related services to Crescent Midstream Holdings through February 3, 2022 or upon receipt of Crescent Midstream Holdings' written notice to terminate the Administrative TSA prior to February 3, 2022.
CMO also entered into a transition services agreement (the "Control Center TSA") with Crescent Midstream Holdings to provide certain customary control center services and field transition support services necessary to operate a pipeline system. Unless terminated in writing by Crescent Midstream Holdings earlier, the Control Center TSA shall expire on February 3, 2022.
Similarly, Crimson and Crescent Midstream Holdings entered into a transition services agreement (the Employee TSA") whereby an indirect, wholly-owned subsidiary of Crimson shall continue to provide payroll, employee benefits and other related employment services to Crescent Midstream Holdings and its subsidiaries. Under the Employee TSA, Crimsons indirect, wholly-owned subsidiary shall make available and assign to Crescent Midstream Holdings and its subsidiaries certain employees to provide services primarily to Crescent Midstream Holdings and its subsidiaries. While the Employee TSA is in effect, Crescent Midstream Holdings shall be responsible for the daily supervision of and assignment of work to the employees providing services to Crescent Midstream Holdings and its subsidiaries. The Employee TSA will conclude on February 3, 2022 if not previously terminated in writing by Crescent Midstream Holdings. For the months of February and March 2021, Crimson billed employee-related costs and benefits to Crescent Midstream and CLM totaling $1.1 million.
Likewise, a transition services agreement (the "Insurance Coverage TSA") was entered into between CMO, a wholly-owned subsidiary of Crimson and Crescent Midstream Operating, LLC ("Crescent Midstream Operating") (collectively, the "Insurance TSA Parties"). The Insurance Coverage TSA relates to the remaining term of coverage on certain insurance policies which were in place prior to the Crimson Transaction (the "Legacy Insurance Policies") and are shared by Crimson, certain of its subsidiaries (including CMO), Crescent Midstream Operating and certain other entities related to Crescent Midstream Operating (collectively, the "Insureds"). Under the Insurance Coverage TSA, the Insurance TSA Parties agreed to retain and maintain the Legacy Insurance Policies, and continue to split the premium payments among the Insureds in line with the historical practices prior to Crescent Midstream Holdings' spin-off from Crimson in conjunction with the Crimson Transaction. By entering into the Insurance Coverage TSA, the Insurance TSA Parties acknowledged that any claims made which result in a loss by one of the Insureds will erode and may exhaust the shared limits and/or aggregates stated in any of the Legacy Insurance Policies. Additionally, under the terms of the Insurance Coverage TSA, it was agreed that the Insurance TSA Party which is directly responsible for any incident that results in any loss of coverage under any of the Legacy Insurance Policies may be primarily financially responsible for such self-insurance and/or covering any increase in costs of the Legacy Insurance Policies that occurred as a result of such incident. The Insurance Coverage Transition TSA is set to expire on May 31, 2021 if not terminated earlier by mutual, written agreement of the Insurance TSA Parties. However, as stated in the Insurance Coverage TSA, the Insurance TSA Parties will either (i) seek to obtain alternative insurance coverage to be effective on the same date the Insurance Coverage TSA is terminated, or (ii) seek and obtain a renewal of the existing insurance policies for an additional term for all Insureds as currently provided in each of the Legacy Insurance Policies.
### Other Related Party Transactions
As of March 31, 2021, certain entities affiliated with John D. Grier (CLM, Crimson Renewable Energy, L.P. and Delta Trading, L.P.) owe Crimson and its subsidiaries $827 thousand. Mr. Grier directly or indirectly owns a 35.35% interest in CLM and owns 100% of both Crimson Renewable Energy, L.P. and Delta Trading, L.P. These balances primarily represent receivables related to payroll, employee benefits and other related employment services that are provided by certain subsidiaries of Crimson. As of March 31, 2021, Crimson and its subsidiaries owe Crescent Midstream $406 thousand, net. This balance represents amounts owed to Crescent Midstream as part of the common control transfer completed prior to the Crimson Transaction, partially offset by receivables related to payroll, employee benefits and other related employment services.
The Company also agreed to reimburse Crescent Midstream for certain costs related to accounting and consulting services for the Crimson Transaction, which costs totaled $416 thousand as of March 31, 2021.
Each of the transactions described above was also reviewed and approved by the Companys Board of Directors in connection with its approval of the terms of the Crimson Transaction and related intercompany transactions and amounts involved in the separation of Crimson, on the one hand, and Crescent Midstream Holdings and its subsidiaries, on the other hand.
ITEM14.PRINCIPAL ACCOUNTING FEES AND SERVICES
### INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Companys Audit Committee selected Ernst & Young LLP ("E&Y") as the independent registered public accounting firm for its fiscal year ended December 31, 2020. E&Y is registered with the Public Company Accounting Oversight Board and has served as the Company's independent registered public accounting firm since the Company's commencement of operations on December 8, 2005.
The following table sets forth the amounts of the aggregate fees billed to the Company by E&Y for the fiscal years ended December 31, 2020 and 2019, respectively:
____________________
(1)
For professional services rendered auditing the Companys annual financial statements, reviewing interim financial statements, and reviewing the Companys statutory and regulatory filings with the SEC. The audit fees for December 31, 2020 and December 31, 2019 are based on amounts billed and expected to be billed by E&Y.
(2)
For accounting consultation in connection with transactions and pro forma financial statements.
(3)
For professional services rendered to the Company for tax compliance, tax advice and tax planning.
The Audit Committee of the Company has adopted pre-approval policies and procedures, most recently updated as of February 24, 2021. Under these policies and procedures, the Audit Committee of the Company pre-approves: (i) the selection of the Companys independent registered public accounting firm; (ii) the engagement of the independent registered public accounting firm to provide any non-audit services to the Company; (iii) the engagement of the independent registered public accounting firm to provide any non-audit services to the Companys manager or advisor or any entity controlling, controlled by, or under common control with the Companys manager or advisor that provides ongoing services to the Company, if the engagement relates directly to the operations and financial reporting of the Company; and (iv) the fees and other compensation to be paid to the independent registered public accounting firm. The Chair of the Audit Committee of the Company may grant the pre-approval of any engagement of the independent registered public accounting firm for non-audit services, and such delegated pre-approvals will be presented to the full Audit Committee at its next meeting for ratification. Under certain limited circumstances, pre-approvals are not required under securities law regulations for certain non-audit services below certain de minimus thresholds. Since the Companys adoption of these policies and procedures, the Audit Committee of the Company has pre-approved all audit and non-audit services provided to the Company by E&Y. None of these services provided by E&Y were approved by the Audit Committee pursuant to the de minimus exception under Rule 2.01(c)(7)(i)(C) or Rule 2.01(c)(7)(ii) of Regulation S-X.
PART IV
### ITEM15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following documents are filed as part of this Annual Report on Form 10-K/A:
1. All financial statement schedules are omitted because of the absence of conditions under which they are required or because the required information is included in our consolidated financial statements or notes thereto, included in Part II, Item 8, of our Annual Report on Form 10-K.
2. The Exhibits listed in the Exhibit Index below.
All exhibits incorporated by reference were filed under SEC File No. 001-33292.
All other exhibits for which provision is made in the applicable regulations of the Securities and Exchange Commission are not required under the related instruction or are inapplicable and therefore have been omitted.
CORENERGY INFRASTRUCTURE TRUST, INC.<|endoftext|>LLC and TRS San Spring, LLC (incorporated herein by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated October 4, 2017).
10.27
First Loan Modification Agreement dated as of May 12, 2020 among CDOR Jax Court, LLC, TRS Jax Court, LLC, CDOR Atl Indy, LLC, TRS Atl Indy, LLC, CDOR San Spring, LLC and TRS San Spring, LLC, as Borrowers, and Wells Fargo Bank, National Association, as Lender (incorporated herein by reference to Exhibit 10.7 to the Company's Quarterly Report on Form 10-Q (Commission file number 001-34087) for the quarter ended March 31, 2020).
10.28
Purchase Agreement, dated November 16, 2011, by and among the Company, Condor Hospitality Limited Partnership and Real Estate Strategies L.P. (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K/A (Commission file number 001-34087) dated November 16, 2011).
10.29
Warrants issued to Real Estate Strategies L.P. dated February 1, 2012 and February 15, 2012 (incorporated herein by reference to Exhibit 10.39 to the Companys Annual Report on Form 10-K (Commission file number 001-34087) for the year ended December 31, 2011).
10.30
Investor Rights and Conversion Agreement, dated February 1, 2012, by and among the Company, Real Estate Strategies L.P. and IRSA Inversiones y Representaciones Sociedad Annima (incorporated herein by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated January 30, 2012).
10.31
Registration Rights Agreement, dated February 1, 2012, by and among the Company, Real Estate Strategies L.P. and IRSA Inversiones y Representaciones Sociedad Annima (incorporated herein by reference to Exhibit 10.4 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated January 30, 2012).
10.32
Directors Designation Agreement, dated February 1, 2012, by and among the Company, Real Estate Strategies L.P. and IRSA Inversiones y Representaciones Sociedad Annima (incorporated herein by reference to Exhibit 10.5 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated January 30, 2012).
10.33
Agreement, dated August 9, 2013, by and among the Company, Real Estate Strategies L.P. and IRSA Inversiones y Representaciones Sociedad Anonima (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated August 9, 2013).
10.34
Agreement, dated July 23, 2015, between Real Estate Strategies L.P., IRSA Inversiones y Representaciones Sociedad Anonima and the Company (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated July 23, 2015).
10.35
Warrant dated January 24, 2017 issued to Real Estate Strategies L.P. (incorporated herein by reference to Exhibit 10.5 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated January 23, 2017).
10.36
Agreement, dated as of February28, 2017, by and among Real Estate Strategies L.P., IRSA Inversiones y Representaciones Sociedad Annima and the Company (incorporated herein by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated February 28, 2017).
10.37
Joinder Agreement dated June 29, 2018 by and among the Company, Real Estate Strategies L.P., IRSA Inversiones y Representaciones Sociedad Anonima, and Real Estate Investment Group VII L.P. (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated June 29, 2018).
10.38
Convertible Promissory Note and Loan Agreement dated as of November18, 2020 by the Company in favor of Efanur S.A. (incorporated herein by reference to Exhibit 10.5 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated November 18, 2020).
10.39
Voting Agreement dated as of November18, 2020 between Real Estate Investment Group VII L.P., Real Estate Strategies L.P., Efanur S.A. and the Company (incorporated herein by reference to Exhibit 10.7 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated November 18, 2020).
10.40
Stock Purchase Agreement, dated as of March 16, 2016, between SREP III Flight-Investco, L.P. and the Company (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated March 16, 2016).
10.41
Investor Rights Agreement, dated as of March 16, 2016, by and among SREP III Flight-Investco, L.P., StepStone Group Real Estate LP and the Company (incorporated herein by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated March 16, 2016).
10.42
Agreement, dated as of March 16, 2016, by and among Real Estate Strategies L.P., IRSA Inversiones y Representaciones Sociedad Annima and the Company (incorporated herein by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated March 16, 2016).
10.43
Agreement, dated as of February28, 2017, between SREP III Flight-Investco, L.P., StepStone Group Real Estate LP and the Company (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated February 28, 2017)
10.44
Convertible Promissory Note and Loan Agreement dated as of November18, 2020 by the Company in favor of SREP III Flight-Investco 2, L.P. (incorporated herein by reference to Exhibit 10.4 to the Companys Current Report on Form 8-K (Commission file number 001-34087) datedNovember 18, 2020).
10.45
Voting Agreement dated as of November 18, 2020 between StepStone Group Real Estate LP, StepStone Rep III (GP), LLC, StepStone Group Real Estate Holdings LLC, SREP Flight-Investco, L.P. and the Company (incorporated herein by reference to Exhibit 10.6 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated November 18, 2020).
10.46
Backstop Commitment Agreement dated as of December 7, 2020 between the Company and SREP III Flight-Investco 2, L.P. (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated December 7, 2020).
10.47
The Companys 2006 Stock Plan (incorporated herein by reference to Exhibit 10.31 to the Companys Annual Report on Form 10-K (Commission file number 001-34087) for the year ended December 31, 2011).
10.48
Amendment to the Companys 2006 Stock Plan dated May 28, 2009 (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated May 28, 2009).
10.49
Amendment to the Companys 2006 Stock Plan dated May 22, 2012 (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated May 22, 2012).
10.50
Form of Stock Option Agreement (incorporated herein by reference to Exhibit 10.32 to the Companys Annual Report on Form 10-K (Commission file number 001-34087) for the year ended December 31, 2011).
10.51
The Companys 2016 Stock Plan (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated June 15, 2016).
10.52
Amendment to the Companys 2016 Stock Plan (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated May 17, 2018.
10.53
Amended and Restated Employment Agreement dated March 2, 2015 by and between the Company and J. William Blackham, as amended and restated on September 16, 2016 (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated September 16, 2016).
10.54
Common Stock Purchase Warrant dated March 2, 2015 between the Company and J. William Blackham (incorporated herein by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated March 2, 2015).
10.55
Amendment of Employment Agreement dated June 28, 2017 between J. William Blackham and the Company (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated June 28, 2017).
10.56
Amendment of Employment Agreement dated April 10, 2018 between J. William Blackham and the Company (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated April 10, 2018.
10.57
Form of Executive Officer and Director Indemnification Agreement (incorporated herein by reference to Exhibit 10.5 to the Companys Quarterly Report on Form 10-Q (Commission file number 001-34087) for the quarter ended March 31, 2016).
10.58
Form of Restricted Stock Agreement (incorporated herein by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated March 29, 2017).
10.59
Form of Director Restricted Stock Agreement (incorporated herein by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated June 19, 2017).
14.1
Code of Business Conduct and Ethics and Whistleblower Policy (incorporated herein by reference to Exhibit 14.1 to the Companys Current Report on Form 8-K (Commission file number 001-34087) dated May 17, 2018.
21.0*
Subsidiaries.
23.1*
Consent of KPMG LLP
31.1**
Section 302 Certification of Chief Executive Officer.
31.2**
Section 302 Certification of Chief Financial Officer.
32.1**
Section 906 Certifications
101.1*
The following materials from the Companys Annual Report on Form 10-K for the year ended December 31, 2020, formatted in XBRL (eXtensible Business Reporting Language): (i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Operations, (iii) the Consolidated Statements of Equity, (iv) the Consolidated Statements of Cash Flows and (v) Notes to Consolidated Financial Statements.
Pursuant to Item 601 (b)(4) of Regulation S-K, certain instruments with respect to the Companys long-term debt are not filed with this Form 10-K. The Company will furnish a copy of any such long-term debt agreement to the Securities and Exchange Commission upon request.
Management contracts and compensatory plans are set forth as Exhibits 10.4
7 through 10.
*
Previously Filed
**
### Filed Herewith
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Britton Hill Capital, a broker dealer specializing in high yield bank debt and bonds and value equities. From 2003 to 2010, Ms. From 1992 to 2001, Ms. Lombard analyzed, managed, and was involved in the restructurings of proprietary investments for ING, Chase Manhattan Bank, Barclays Bank, and Credit Lyonnais. Ms. Ms. Lombard also works as independent consultant, and teaches executive education courses in corporate finance, financial analysis and financial markets at Columbia University, the Wharton School of Business and Moodys. Ms. Lombard holds a Bachelor in Communications from Simmons College and a Master in Business Administration from Columbia University. Ms. Lombard is well qualified to serve as a director due to her extensive financial and capital markets experience, as well as her experience serving on the boards of other public companies.
Skyler Wichers serves as one of our Directors. He is a portfolio manager at MILFAM LLC, a single family office where he is responsible for numerous investments in public and private markets across a wide range of industries and asset classes. Prior to MILFAM, from 2012 to 2018, Mr. Wichers served as a key member of the investment team at Broadbill Investment Partners LLC, a private investment partnership focused on distressed securities, where he started as a junior analyst and became a partner in 2015. Previously, Mr.Wichers served as an associate at Trendex Capital Management, a single family office. He currently serves a member of the board of Alimco Financial Corporation, a reinsurance company and Frontiersman Holdings, Inc., a startup company in the spirits and liquor industry. Mr.Wichers holds a Bachelor of Science in Accounting from the University of Florida. Mr.Wichers is well qualified to serve as a director due to his extensive investment experience.
No officers or directors have been involved in any legal proceedings that reportable pursuant to Item401(f) of Regulation S-K, except for Mr.Aquino, in connection with INAPs restructuring. INAPs restructuring enabled it to emerge from its Chapter 11 bankruptcy, which was filed on March16, 2020.
### Advisors:
David Williams
, since 2014 has served as the head of consultancy of Tech Mahindra, a multinational technology company. Mr.Williams served as CEO of Device Cloud Networks, an internet of things business, Chief Technology Officer of Stoke, a wireless infrastructure company, Senior Vice President Wireless Technology of Comcast and Chief Technology Officer of O2/Telefonica Europe. Mr.Williams was a member of the early technology team in Vodafone, from 1989 to 1994, where he worked on mobile core design. Mr.Williams then moved over to Orange PCS, where he developed the companys operations structure. Mr.Williams built one of the GSM Networks in California for Pacific Bell. Upon acquisition by SBC, Mr.Williams became technology leader for the west coast. During the creation by SBC/BellSouth of Cingular, Mr.Williams was a key player on the merger team and became head of technology strategy. Mr.Williams then became CTO of the newly formed O2, with the UK, Germany, Holland and Ireland as markets. As a key member of the executive team at O2, Mr.Williams helped turn the business around and enabled an exit in late 2005 to Telefonica. Dave became CTO of Telefonica Europe in 2003 and became Wireless CTO of Comcast in 2008, where over his time there he helped manage their Spectrum assets including the sale to Verizon and was key driver in the rollout of Cable Wifi, one of the largest network of wifi hotspots in the United States.
Mr.Williams (i) assists us in sourcing and negotiating with potential business combination targets, (ii) provides his business insights when we assess potential business combination targets, including targets in and related to the wireless telecommunications industry, and (iii) upon our request, provides his business insights as we work to create additional value in the businesses that we acquire. In this regard, Mr.Williams fulfills some of the same functions as our directors. However, Mr.Williams has no written advisory agreement with us. Mr.Williams holds membership interests in the Sponsor but will receive no other compensation for his services. Our advisors will not be under any fiduciary obligations to us nor will they perform board or committee functions, nor will they have any voting or decision making capacity on our behalf. They also are not required to devote any specific amount of time to our efforts or be subject to the fiduciary requirements to which our directors are subject.
The term of office of the first class of directors, consisting of Skyler Wichers, Alan Howe and Andrew Day, will expire at our first annual meeting of stockholders. The term of office of the second class of directors, consisting of Shelly C. Lombard and Eric Edidin, will expire at the second annual meeting of stockholders. Peter D. Aquino and Igor Volshteyn, will expire at the third annual meeting of stockholders.
### Director Independence
### Audit Committee
Alan B. Lombard serve as members of our audit committee, and Shelly C. Lombard chairs the audit committee. Each of Alan B. Lombard meet the independent director standard under Nasdaq listing standards and under Rule10-A-3(b)(1) of the Exchange Act.
Shelly C. Lombard qualifies as an audit committee financial expert as defined in applicable SEC rules.
### Compensation Committee
Alan B. Howe and Andrew Day serve as members of our compensation committee, and Alan B. Howe chairs the compensation committee. Our board of directors has determined that each of Mr.Howe and Mr.Day are independent.
Notwithstanding the foregoing, as indicated above, other than the payment to our sponsor of $10,000 per month, until the earlier of the completion of the initial business combination and the Companys liquidation, for office space, utilities and secretarial and administrative support and reimbursement of expenses, no compensation of any kind, including finders, consulting or other similar fees, will be paid to any of our existing stockholders, officers, directors or any of their respective affiliates, prior to, or for any services they render in order to effectuate the consummation of an initial business combination.
### Director Nominations
The directors who will participate in the consideration and recommendation of director nominees are Alan Howe, Eric Edidin, Andrew Day, Skyler Wichers and Shelly C. Lombard.
### Code of Ethics
Based solely on copies of such forms received, we believe that, during the fiscal year ended December 31, 2020, all filing requirements applicable to our officers, directors and greater than ten percent beneficial owners were complied with.
### Item 11. Executive Compensation
No compensation of any kind, including any finders fee, reimbursement or consulting fee, will be paid by us to our sponsor, officers and directors, or any affiliate of our sponsor or officers, prior to, or in connection with any services rendered in order to effectuate, the consummation of our initial business combination (regardless of the type of transaction that it is).
Item 12.
The following table sets forth information regarding the beneficial ownership of our common stock as of March 23, 2021 based on information obtained from the persons named below, with respect to the beneficial ownership of shares, by: each person known by us to be the beneficial owner of more than 5% of our outstanding shares of common stock;
On November 2, 2020, 750,000 founder shares were forfeited.
(1)
Unless otherwise noted, the business address of each of the following entities or individuals is c/o Spartacus Acquisition Corporation, 6470 E Johns Crossing, Suite 490, Duluth, GA 30097.
(2)
Such shares are convertible into shares of Class A common stock on a one-for-onebasis, subject to adjustment, as described in the section of this prospectus entitled Description of Securities.
(3)
MILFAM CI LLC and CCUR Holdings, Inc. are the managing members of the sponsor. As such, each of MILFAM CI LLC and CCUR Holdings, Inc. have voting and investment discretion with respect to the common stock held of record by our sponsor and may be deemed to share beneficial ownership of the common stock held directly by our sponsor. MILFAM CI LLC is controlled by MILFAM CI Management LLC, which is owned and controlled by Neil Subin. CCUR Holdings, Inc. is a public company (OTC:CCUR) controlled by its board of directors.
(4)
Item 13.
Our sponsor, Spartacus Sponsor LLC, has purchased an aggregate of 8,104,244 private placement warrants for a purchase price of $1.00 per warrant in a private placement that occurred simultaneously with the closing of our initial public offering with each warrant exercisable to purchase one share of our Class A common stock at a price of $11.50 per share in a private placement that will close simultaneously with the closing of our initial public offering. B. Riley Principal Investments, LLC has purchased an aggregate of 645,756 identical warrants at a purchase price of $1.00 per warrant. These private placement warrants (including the Class A common stock issuable upon exercise thereof) may not, subject to certain limited exceptions, be transferred, assigned or sold by the holder until 30 days after the completion of our initial business combination.
### Related Party Policy
Payment to our sponsor of $10,000 per month, for up to 24months, for office space, utilities and secretarial and administrative support;
and
### Director Independence
Item 14.
### Audit Fees
The aggregate fees billed by Marcum for professional services rendered for the audit of our annual financial statements, IPO balance sheet audit, review of the financial information included in our Forms 10-Q for the respective periods and other required filings with the SEC for the period from August 10, 2020 (inception) through December 31, 2020 totaled approximately $81,375.
Audit-Related Fees
These services include attest services that are not required by statute or regulation. We did not pay Marcum for audit-related fees for the period from August 10, 2020 (inception) through December 31, 2020.
### Tax Fees
We did not pay Marcum for tax planning and tax advice for the period from August 10, 2020 (inception) through December 31, 2020.
All Other Fees
We did not pay Marcum for other services for the period from August 10, 2020 (inception) through December 31, 2020.
### Pre-Approval Policy
### PART IV
Item 15.<|endoftext|>Which consists of operating costs of $1.0 million and a non-cash change in fair value of derivative liability of $13.3 million, offset by interest income from bank of $31 and interest earned on investments held in the Trust Account of $3.4 thousand.
On October 2, 2020, we consummated the IPO of 23,000,000 units at a price of $10.00 per unit, which includes the full exercise by the underwriters of their over-allotment option in the amount of 3,000,000, generating gross proceeds of $230.0 million. Simultaneously with the closing of the IPO, we consummated the sale of 6,600,000 private placement warrants at a price of $1.00 per private placement warrant in a private placement to our stockholders, generating gross proceeds of $6.6 million.
Following the IPO, the full exercise of the over-allotment option by the underwriters and the sale of the private placement warrants, a total of $230.0 million was placed in the Trust Account. We incurred $13.2 million in transaction costs, including $4.2 million of underwriting fees, $8.1 million of deferred underwriting fees and $0.9 million of other offering costs.
For the period from August 4, 2020 (inception) through December 31, 2020, cash used in operating activities was $0.5 million comprised of net loss of $14.3 million and interest earned on investments held in the Trust Account of $3.4 thousand as offset by a non-cash change in warrant liability of $13.3 million, operating costs paid through related party promissory note of $402 and the changes in operating assets and liabilities of $0.5 million.
As of December 31, 2020, we had cash and investments held in the Trust Account of approximately $230.0 million. We intend to use substantially all of the funds held in the Trust Account, including any amounts representing interest earned on the Trust Account to complete our initial business combination.
As of December 31, 2020, we had approximately $1.0 million of cash held outside of the Trust Account. We intend to use the funds held outside the Trust Account primarily to identify and evaluate target businesses, perform business due diligence on prospective target businesses, travel to and from the offices, plants or similar locations of prospective target businesses or their representatives or owners, review corporate documents and material agreements of prospective target businesses, and structure, negotiate and complete an initial business combination.
The Sponsor, or an affiliate of the Sponsor, or certain of our officers and directors or their affiliates may, but are not obligated to, extend us working capital loans as may be required in order to fund working capital deficiencies or finance transaction costs in connection with an initial business combination. If we complete an initial business combination, we would repay the working capital loans out of the proceeds of the Trust Account released to us. In the event that an initial business combination does not close, we may use a portion of proceeds held outside the Trust Account to repay the working capital loans but no proceeds held in the Trust Account would be used to repay the working capital loans. The working capital loans would either be repaid upon consummation of an initial business combination, without interest, or, at the lenders discretion, up to $2.0 million of such working capital loans may be convertible into warrants of the post-business combination entity.
### Index
However, if our estimate of the costs of identifying a target business, undertaking in-depth due diligence and negotiating an initial business combination are less than the actual amount necessary to do so, we may have insufficient funds available to operate our business prior to our initial business combination. Subject to compliance with applicable securities laws, we would only complete such financing simultaneously with the consummate of our initial business combination. If we are unable to consummate our initial business combination because we do not have sufficient funds available to us, we will be forced to cease operations and liquidate the Trust Account.
### Contractual Obligations
We did not have any long-term debt, capital lease obligations, operating lease obligations or long-term liabilities, other than as described below.
The underwriters are entitled to a deferred fee of $0.35 per unit, or $8.1 million in the aggregate. The deferred fee will become payable to the underwriters from the amounts held in the Trust Account solely in the event that we consummate an initial business combination, subject to the terms of the underwriting agreement.
We entered into various consulting arrangements with several service provider for administrative services and potential target financial analysis and due diligence services to us. These arrangements provide for aggregate monthly fees of approximately $90.0 thousand.
The preparation of financial statements and related disclosures in conformity with accounting principles generally accepted in the United States of America requires our management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements, and income and expenses during the periods reported.
We account for our Class A common stock subject to possible redemption in accordance with the guidance in Accounting Standards Codification Topic 480 Distinguishing Liabilities from Equity. Accordingly, shares of Class A common stock subject to possible redemption are presented as temporary equity, outside of the stockholders equity section of our balance sheet.
### Index
Warrant Liability
We account for the warrants in accordance with the guidance contained in ASC 815-40-15-7D and 7F under which the warrants do not meet the criteria for equity treatment and must be recorded as liabilities.
Net income per common share, basic and diluted for Class A redeemable common stock is calculated by dividing the interest income earned on the Trust Account, net of applicable franchise and income taxes, by the weighted average number of Class A redeemable common stock outstanding for the period. Net loss per common share, basic and diluted for Class B non-redeemable common stock is calculated by dividing the net income, less income attributable to Class A redeemable common stock, by the weighted average number of Class B non-redeemable common stock outstanding for the period presented.
Recent Accounting Standards
ITEM 8.
This information appears in Item 15 of this Amended Report.
ITEM 9A.
### CONTROLS AND PROCEDURES
Disclosure controls are procedures that are designed with the objective of ensuring that information required to be disclosed in our reports filed under the Exchange Act, such as this Amended Report, is recorded, processed, summarized and reported within the time period specified in the SECs rules and forms. Disclosure controls are also designed with the objective of ensuring that such information is accumulated and communicated to our management, including the chief executive officer and the chief financial officer, as appropriate to allow timely decisions regarding required disclosure.
Our management evaluated, with the participation of our current chief executive officer and chief financial officer, our certifying officers, the effectiveness of our disclosure controls and procedures as of December 31, 2020, pursuant to Rule 13a-15(b) under the Exchange Act. Based upon that evaluation, our certifying officers concluded that, due to a material weakness in internal control over financial reporting with respect to the classification of the Companys warrants as components of equity instead of as derivative liabilities as described in the Explanatory Note section of this Amended Report, our disclosure controls and procedures were not effective as December 31, 2020.
### Index
This Amended Report does not include a report of managements assessment regarding internal control over financial reporting or an attestation report of our independent registered public accounting firm due to a transition period established by rules of the SEC for newly public companies.
On April 25, 2021, we revised our prior position on accounting for our warrants and concluded that our previously issued financial statements as of December 31, 2020 and for the period from August 4, 2020 (inception) through December 31, 2020 should not be relied on because of a misapplication in the guidance on warrant accounting.
In light of the restatement of our financial statements included in this Amended Report, we plan to enhance our processes to identify and appropriately apply applicable accounting requirements to better evaluate and understand the nuances of the complex accounting standards that apply to our financial statements.
PART III
ITEM 14.
Withum is our independent registered public accounting firm.
Audit Fees
For the period from August 4, 2020 (inception) through December 31, 2020, fees for our independent registered public accounting firm were approximately $86,520, for the services Withum performed in connection with our IPO, review of the financial information included in our Quarterly Report on Form 10-Q and the audit of our December 31, 2020 financial statements included in this Annual Report on Form 10-K.
### Audit-Related Fees.
For the period from August 4, 2020 (inception) through December 31, 2020, our independent registered public accounting firm did not render assurance and related services related to the performance of the audit or review of financial statements.
Tax Fees
For the period from August 4, 2020 (inception) through December 31, 2020, our independent registered public accounting firm did not render services to us for tax compliance, tax advice and tax planning.
### All Other Fees
For the period from August 4, 2020 (inception) through December 31, 2020, there were no fees billed for products and services provided by our independent registered public accounting firm other than those set forth above.
Pre-Approval Policy
Our audit committee was formed prior to the consummation of our IPO.
Index
PART IV
ITEM 15.
(a)
The following documents are filed with this Amended Report:
(1)
Restated Financial Statements:
(2)
### Restated Financial Statement Schedules:
None.
Index
(b)
### Exhibits
(1) Incorporated by reference to Exhibit 4.1 to Climate Change Crisis Real Impact I Acquisition Corporations current report on Form 8-K filed with the SEC on October 5, 2020.
|
[{"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}, {"idx": "10k", "domain": "business", "domain2": "", "header_footer": "", "lang": "en", "source": "business-0.jsonl"}]
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.