UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
FORM 10-K/A
(Amendment No. 1)
☒ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
(Mark
(Mark One)
For the fiscal year ended December 31, 20142021
OR
☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from ___to _____
Commission file number 001-34785
XPRESSPA GROUP, INC.
VRINGO, INC.
(Exact name of registrant as specified in its charter)
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Delaware | | 20-4988129 |
(State or other jurisdiction of incorporation or | | (I.R.S. Employer Identification No.) |
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New York, NY | 10001 |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (212)309-7549
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class | Name of each exchange on which registered | |
Common Stock, par value $0.01 per share | | The |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨◻ No x⌧
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨◻ No x⌧
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 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 x⌧ No ¨◻
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x⌧ No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K x .
◻
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of "large“large accelerated filer, ", "accelerated” “accelerated filer," and "smaller” “smaller reporting company,"” and “emerging growth company” in Rule 12b-2 of the Exchange Act (Check one):Act.
Large accelerated filer | ◻ | Accelerated filer | ◻ | |
Non-accelerated filer
| ⌧ | Smaller reporting company | ☒ | |
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 has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨☐ No x⌧
The aggregate market value of the registrant'sregistrant’s common stock held by non-affiliates of the registrant (without admitting that any person whose shares are not included in such calculation is an affiliate), as of June 30, 2021, the last business day of the registrant’s most recently completed second quarter, was $162,522,363 computed by reference to the closing sale price of such shares$1.54 per share on The NASDAQthe Nasdaq Stock Market LLC on June 30, 2014 was $290,632,195.2021.
As of April 17, 2015, 93,571,042 19, 2022, 95,321,210.shares of the registrant'sregistrant’s common stock wereare outstanding.
DOCUMENTS INCORPORATED BY REFERENCE: None
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Auditor Name: | Friedman LLP | Auditor Location: | East Hanover, New Jersey | Auditor Firm ID: | 711 |
TABLE OF CONTENTS
1
Explanatory Note
This Amendment No. 1 on Form 10-K/A (this “Form 10-K/A”) amends the Annual Report on Form 10-K of Vringo,XpresSpa Group, Inc. (“Vringo”XpresSpa Group” or the “Company”) for the fiscal year ended December 31, 2014,2021 as originally filed with the Securities and Exchange Commission (the “SEC”) on March 16, 201531, 2022 (the “Original Filing”). This Form 10-K/A amends the Original Filing to include the information required by Part III of the Original Filing because the Company has not filed and will not file a definitive proxy statement within 120 days after the end of its 20142021 fiscal year. In addition, this Form 10-K/A amends Item 15 of Part IV of the Original Filing to include new certifications by our principal executive officer and principal financial and accounting officer under Section 302 of the Sarbanes-Oxley Act of 2002, as required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Except for the foregoing, we have not modified or updated disclosures presented in the Original Filing in this Form 10-K/A. Accordingly, this Form 10-K/A does not modify or update the disclosures in the Original Filing to reflect subsequent events, results or developments or facts that have become known to us after the date of the Original Filing. Information not affected by this amendmentForm 10-K/A remains unchanged and reflects the disclosures made at the time the Original Filing was filed. Therefore, this Form 10-K/A should be read in conjunction with any documents incorporated by reference therein and our filings made with the SEC subsequent to the Original Filing.
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Forward-Looking Statements
This Form 10-K/A contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements are based on management’s expectations and are subject to certain factors, risks and uncertainties that may cause actual results, outcome of events, timing and performance to differ materially from those expressed or implied by such forward-looking statements. Forward-looking statements should be evaluated together with the many uncertainties that affect our business, particularly those mentioned in the Risk Factors in Item 1A of our Original Filing and in our periodic reports on Form 10-Q and Form 8-K. We are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information, future events or otherwise. All subsequent forward-looking statements attributable to us or to any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section.
All references in this Form 10-K/A to “we,” “us” and “our” refer to Vringo,XpresSpa Group, Inc., a Delaware corporation, and its consolidated subsidiaries unless the context requires otherwise.
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PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Directors and Executive Officers
Our Board of Directors currently consists of seven (7)five (5) members. Prior to each annual meeting of stockholders, the Board of Directors considers the recommendations of the Nominating and Corporate Governance Committee and votes to nominate individuals for election or re-election for a term of one year or until their successors are duly elected and qualify or until their earlier death, resignation, or removal. Election takes place at our annual meeting of stockholders.
Set forth below are the names of our directors and executive officers, their ages (as of the filing date of this Form 10-K/A), their position(s) with the Company, if any, their principal occupations or employment for at least the past five years, the length of their tenure as directors and the names of other public companies in which such persons hold or have held directorships during the past five years. Our executive officers are appointed by, and serve at the discretion of, our Board of Directors. There are no family relationships among any of the directors or executive officers. Additionally, information about the specific experience, qualifications, attributes or skills that led to our Board of Directors’ conclusion that each person listed below should serve as a director is set forth below:
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Name | Age | Position(s) with the Company | ||
Bruce T. Bernstein*(1)(2)(3)(4) | 58 | Chairman of the Board of Directors | ||
Robert Weinstein*(2)(4) | 62 | Director | ||
Donald E. Stout*(1)(2)(3) | 76 | Director | ||
Michael Lebowitz* (4) | 49 | Director | ||
Scott R. Milford | 57 | Chief Executive Officer and Director | ||
James A. Berry | | 65 | | |
Chief Financial Officer | ||||
*Independent director under the rules of The Nasdaq Stock Market
(1) | Current member of Compensation |
(2) | Current member of Audit |
(3) | Current member of Nominating and Corporate Governance |
(4) | |
Our Board of Directors has reviewed the materiality of any relationship that each of our directors has with us, either directly or indirectly. Based upon this review, our Board of Directors has determined that the following members of our Board of Directors are “independent directors” as defined by The Nasdaq Stock Market (“Nasdaq”): Bruce T. Bernstein, Donald E. Stout, Robert Weinstein, and Michael Lebowitz.
Andrew D. PerlmanScott Milford joined the Company in July 2019 andhas served as our Chief Executive Officer (“CEO”) since March 2012, as our President from April 2010 to July 2012 and as a member of our Board of Directors since September 2009. From February 2009 to March 2010, Mr. Perlman served as Vice President of Global Digital Business Development at EMI Music Group (“EMI”), where he was responsible for leading distribution deals with digital partners for EMI’s music and video content. From May 2007 to February 2009, Mr. Perlman was the General Manager of our operations in the United States and also served as our Senior Vice President Content & Community, in which he led our content and social community partnerships. From June 2005 to May 2007, Mr. Perlman was Senior Vice President of Digital Media at Classic Media, Inc. (“Classic Media”), a global media company with a portfolio of kids, family and pop-culture entertainment brands. In his position with Classic Media, Mr. Perlman led the company’s partnerships across video gaming, online and mobile distribution. From June 2001 to May 2005, Mr. Perlman served as General Manager for the Rights Group, LLC and its predecessors, a mobile content, marketing and mobile fan club company, where he oversaw mobile marketing campaigns for major international brands such as Visa and Pepsi, and such artists as Britney Spears and Justin Timberlake. Mr. Perlman holds a Bachelor of Arts (“B.A.”) in Business Administration from the School of Business and Public Management at The George Washington University.
We believe Mr. Perlman’s prior experience in licensing intellectual property and deal structuring qualifies him to serve on our Board of Directors. His additional experience and insights gained over the past five years at Vringo are a significant contribution to the Company and the Board of Directors.
Andrew Kennedy Lang has served as our President, Chief Technology Officer and as a member of our Board of Directors since JulyJanuary 19, 2012, and2022. Prior to January 2022, Mr. Milford served as President, CEO,our Chief TechnologyOperating Officer since December 2020. Prior to that, he served as our first Chief People Officer since July 2019. Mr. Milford has over 30 years of experience at high profile and a director of Innovate/Protectdiverse organizations. Prior to joining XpresSpa, he served as VP, People Operations at SoulCycle from June 22, 2011January to July 19, 2012. Mr. Lang has been2019, where he led the creation and deployment of that company’s talent acquisition strategy, the development of an inventorannual performance cycle, and entrepreneur for over two decades. Mr. Lang founded WiseWire Corporationcreated and deployed the “people strategy” that supported the opening of the brand’s first European studio in 1995London. This included the development of talent acquisition and sold ittalent management plans, compensation design and all policies and procedures governing studio operations. Prior to Lycos in 1998 for $39.75 million. Hethat, he served as the Chief TechnologyPeople Officer of Lycos prior to its sale to Terra Networks in 2000 for $5.4 billion. Thereafter, Mr. Lang served from 2001 to 2006 as CEO of Lightspace Corporation, an active gaming technology company. Mr. Lang isBayada, a graduate of Duke University$1 billion Home Health Care Company, during 2018, where he finished secondplayed a significant role in his classbuilding the organizational infrastructure necessary to scale the business from 400 service offices to 1,000 offices. Previously, he was Senior Vice President – Human Resources for Le Pain Quotidien from 2016 to 2018, where he was responsible for driving operational excellence through strategic HR planning, building organizational and holds Bachelor’s degrees in Electrical Engineering, Computer Science, Mathematics,employee capabilities, facilitating change, and Physics. Mr. Lang holdsbuilding effective working relationships with employees and guests on a Master’s degree in Computer Science from Carnegie Mellon University.global scale. His other relevant experiences include senior leadership positions at Town Sports International, Starbucks Coffee Company, Universal Music Group, Viacom, and Blockbuster Entertainment.
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We believe Mr. Lang’sMilford’s extensive experience gainedin the retail industry and his knowledge of the Company’s business due to his status as founderan executive officer of WiseWire Corporation, and CEO of Innovate/Protect and Lightspace Corporationthe Company qualifies him to serve on our Board of Directors.
Anastasia NyrkovskayaBruce T. Bernstein joined our Board of Directors in February 2016 and has served as the CompanyChairman of our Board of Directors since February 2018. Mr. Bernstein has over thirty years of experience in May 2013the securities industry, primarily as our Chief Financial Officer. Ms. Nyrkovskaya oversees all aspectssenior portfolio manager for two alternative finance funds as well as in trading and structuring of arbitrage strategies. Mr. Bernstein served as President of Rockmore Capital, LLC from 2006 until February 2017, the financemanager of a direct investment and accounting functions, including: SEClending fund with peak assets under management of $140 million. Previously, he served as Co-President of Omicron Capital, LP, an investment firm based in New York, which he joined in 2001. Omicron Capital focused on direct investing and internal financial reporting, budgetinglending to public small cap companies and forecasting, tax planning and reporting, human resources, and operational matters.had peak assets under management of $260 million. Prior to joining Omicron Capital, Mr. Bernstein was with Fortis Investments Inc., where he was Senior Vice President in the Company,bank’s Global Securities Arbitrage business unit, specializing in equity structured products and equity arbitrage and then President in charge of the bank’s proprietary investment business in the United States. Prior to Fortis, Mr. Bernstein was Director in the Equity Derivatives Group at Nomura Securities International specializing in cross-border tax arbitrage, domestic equity arbitrage and structured equity swaps. Mr. Bernstein started his career at Kidder Peabody, where he rose to the level of Assistant Treasurer. Mr. Bernstein also serves as a member of the Board of Directors of Synaptogenix, Inc. (formerly Neurotrope Bioscience, Inc.), Mr. Bernstein is also a member of the board of Summit Digital Health, a laser-based blood glucose monitor distributor, based in New Jersey. Mr. Bernstein holds a B.B.A. from 2006, Ms. NyrkovskayaCity University of New York (Baruch).
We believe Mr. Bernstein’s extensive experience in the securities industry qualifies him to serve as the chairman of our Board of Directors.
Robert Weinstein joined our Board of Directors in February 2020. Mr. Weinstein has extensive accounting and finance experience, spanning more than thirty years, as a public accountant, investment banker, healthcare private equity fund principal and chief financial officer. Since October 2013, Mr. Weinstein has been the Chief Financial Officer of Synaptogenix, Inc. (formerly Neurotrope Bioscience, Inc.), a publicly-traded biotechnology company. From September 2011 to September 2013, Mr. Weinstein was an independent consultant for several healthcare companies in the pharmaceutical and biotechnology industries. From March 2010 to August 2011, Mr. Weinstein was the Chief Financial Officer of Green Energy Management Services Holdings, Inc., a publicly-traded energy consulting company. From August 2007 to February 2010, Mr. Weinstein served as Vice PresidentChief Financial Officer of Xcorporeal, Inc., a publicly-traded, development-stage medical device company which was sold in March 2010 to Fresenius Medical USA, the largest provider of dialysis equipment and Assistant Global Controllerservices worldwide. Mr. Weinstein received his MBA degree in finance and Vice President, Corporate Finance andinternational business from the University of Chicago Graduate School of Business, Development at NBCUniversal Media, LLC (“NBCUniversal Media”). She was responsible for technical accounting areas, policies and internal controls. She also structured merger and acquisition transactions, partnerships, joint ventures and dispositions as well as debt activities, and restructurings. From 1998 to 2006, Ms. Nyrkovskaya served in the Audit and Assurance practice at KPMG LLP. Ms. Nyrkovskaya is a Certified Public Accountant (inactive), and received an advanced degreehis B.S. in economics and business administrationaccounting from Moscowthe State University of PublishingNew York at Albany.
We believe Mr. Weinstein’s extensive financial expertise and Printing Arts.
David L. Cohen, Esq. has served ashealthcare experience qualifies him to serve on our Secretary since January 15, 2015, Chief Legal and Intellectual Property Officer since May 7, 2013, as our HeadBoard of Litigation, Licensing and Intellectual Property from July 19, 2012 to May 7, 2013,Directors and as Innovate/Protect’s Special Counsel from May 20, 2012 to July 19, 2012. Mr. Cohen overseesa member and the Company’s world-wide efforts in intellectual property development and monetization. Prior to joining Vringo, Mr. Cohen was Senior Litigation Counsel at Nokia, where among his other duties, he oversaw many of Nokia’s litigations. Mr. Cohen has also worked in private practice at Lerner David Littenberg Krumholz & Mentlik, LLP from 2004 to 2007 and at Skadden, Arps, Slate, Meagher & Flom LLP from 2000 to 2004. Before practicing law, Mr. Cohen earned a B.A. and a Master of Arts (“M.A.”) from the Johns Hopkins University in the history of science and history; a Master of Philosophy in the history and philosophy of science from Cambridge University, an M.A. (with distinction) in legal and political theory from University College London, and a Juris Doctor (“J.D.”) (cum laude) from Northwestern University School of Law (“Northwestern”), where he was an associate editorchairperson of the Law Review. Mr. Cohen received the Sara Norton prize from Cambridge University and the First Prize in Lowden-Wigmore Prizes for Legal Scholarship from Northwestern. Mr. Cohen clerked for The Honorable Chief Judge Gregory W. Carmanaudit committee of the Courtour Board of International Trade.Directors.
H. Van SinclairDonald E. Stout has been aour director at Vringo since July 19, 2012, and was a director of Innovate/Protect, Inc. from November 7, 2011 through the consummation of the merger with Vringo. Since 2003, Mr. Sinclair has served as President, CEO and General Counsel of The RLJ Companies (“RLJ”), the investment company organized by Robert L. Johnson, the founder of Black Entertainment Television. RLJ owns or holds interests in diverse businesses, including private equity, financial services, asset management, insurance services, automobile dealerships, film production, sports and entertainment and video lottery terminal gaming. Mr. Sinclair currently serves as a director of RLJ Entertainment, Inc. a publicly traded company in the media rights business, and formerly served as President and a director of RLJ Acquisition, Inc., a publicly traded special purpose acquisition company that is now a subsidiary through merger of RLJ Entertainment, Inc. Mr. Sinclair also sits on additional boards RLJ’s portfolio investment companies. Mr. Sinclair has also served as Vice President of Legal and Business Affairs for RLJ Urban Lodging Funds, a private equity fund which concentrated on limited and focused service hotels; for RLJ Development, RLJ’s hotel and hospitality company; and as Acting President of the Charlotte Bobcats (now the Charlotte Hornets), the NBA franchise located in Charlotte, North Carolina. Mr. Sinclair has also served as a director of Urban Trust Bank, a federal thrift headquartered in Orlando, Florida, where he chaired the Audit Committee. Prior to joining RLJ, Mr. Sinclair specialized in complex commercial disputes and litigation for 28 years with the Washington, D.C. based law firm Arent Fox, PLLC (“Arent Fox”). In the late 1990’s, Mr. Sinclair became the partner in charge of litigation at Arent Fox, and today remains of counsel to the firm. Mr. Sinclair holds a Bachelor’s degree in Mathematics and a Master’s degree in business administration from the University of Rochester, and a J.D. from The George Washington University.
We believe Mr. Sinclair’s experiences in commercial disputes, litigation, and board service on other public companies qualify him to serve on our Board of Directors.
John Engelman has been our director since December 2010. Mr. Engelman also serves as an independent director of Hemisphere Media Group, Inc., a publically traded Hispanic media company that owns and operates television stations and cable networks in the United States, Puerto Rico and Latin America. Mr. Engelman was a co-founder of Classic Media, Inc. (“Classic Media”), a global media company specializing in family and children’s entertainment where he served as co-chief executive officer until 2012. During that time, he launched television and consumer products driven brands based on iconic entertainment properties such as Lassie, Casper the Friendly Ghost, Frosty the Snowman and Bullwinkle and Rocky. Mr. Engelman developed monetization strategies and oversaw the roll up of intellectual property assets from diverse rights holders. In August 2012, Classic Media was acquired by DreamWorks Animation SKG where Mr. Engelman currently co-heads the DreamWorks Classics division. From 2007 to 2009, Mr. Engelman was co-chief executive officer of Boomerang Media, Inc. (“Boomerang Media”), an acquisition company controlled by GTCR Golder Rauner. From 1997 to 2001, he was an operating partner with Pegasus Capital Advisors and a managing director of Brener International Group, LLC. From 1991 to 1996, Mr. Engelman was President of Broadway Video, Inc., a producer of live television and motion pictures. He began his career as a partner at the Los Angeles law firm of Irell & Manella. Mr. Engelman has a J.D. from Harvard Law School and a B.A. in Government from Harvard College.
We believe Mr. Engelman’s experience in the media and entertainment industries qualifies him to serve on our Board of Directors. His experience gained both as an executive at Classic Media and Boomerang Media are contributions to us and the Board of Directors.
Ashley C. Keller has been our director since December 31, 2012. Ashley Keller is co-founder and Chief Investment Officer of Gerchen Keller Capital, LLC, a private investment firm formed to invest in complex commercial legal claims. Prior to co-founding Gerchen Keller Capital, LLC, Mr. Keller was a special situations Analyst at Alyeska Investment Group (“Alyeska”), a hedge fund based in Chicago. In that position, he focused on investments in companies facing complex regulatory, legal, and other matters. Prior to joining Alyeska, Mr. Keller was an attorney with an array of experience in complex and high-stakes commercial litigation. He was a Partner at Bartlit Beck Herman Palenchar & Scott LLP, where he handled various trial and appellate matters involving securities and patent cases, contractual disputes, and mass-tort class actions. Before practicing law, Mr. Keller clerked for Judge Richard Posner at the United States Court of Appeals for the Seventh Circuit and Justice Anthony Kennedy at the Supreme Court of the United States. Mr. Keller graduated magna cum laude from Harvard University with a degree in Government. He received an MBA with high honors from the University Of Chicago Booth School Of Business, where he graduated in the top 5% of his class. He earned his J.D. with highest honors from the University of Chicago Law School, where he graduated first in his class.
We believe Mr. Keller’s experience in commercial litigation matters and involvement in securities and patent cases qualifies him to serve on our Board of Directors.
Noel J. Spiegel has been our director since May 6, 2013. Mr. Spiegel is currently a director of American Eagle Outfitters, Inc., where he serves as chairman of the Audit Committee and a member of the Compensation Committee, as well as a director of Radian Group, Inc., where he serves as a member of the Audit Committee. Mr. Spiegel was a partner at Deloitte & Touche LLP (“Deloitte”), where he practiced from September 1969 until his retirement in May 2010. In his over forty year career at Deloitte, he served in numerous management positions, including Deputy Managing Partner, member of the Executive Committee and Partner-in-Charge of Audit Operations in Deloitte’s New York Office. Mr. Spiegel also served as Managing Partner of Deloitte’s Transaction Assurance practice, Global Offerings and International Financial Reporting Standards practice, and Technology, Media and Telecommunications practice for the Northeast Region. Mr. Spiegel holds a B.S. from Long Island University, and attended the Advanced Management Program at Harvard Business School.
We believe that Mr. Spiegel’s tenure of over forty years at Deloitte, coupled with his experience on public company boards of directors, qualifies him to serve on our Board of Directors.
Donald E. Stout has been a director at Vringo since July 19, 2012 and was a director of Innovate/Protect from November 7, 2011 through the consummation of the merger with Vringo.us. In a career spanning over forty years, Mr. Stout has been involved in virtually all facets of intellectual property law. Mr. Stout is a partner at a law firm Fitch, Even, Tabin & Flannery LLP since 2015 and he had been a senior partner at the law firm of Antonelli, Terry, Stout & Kraus, LLP from 1982 to 2015. As an attorney in private practice, Mr. Stout has focused on litigation, licensing and representation of clients before the United States Patent and Trademark Office (“USPTO”) in diverse technological areas. From 1971 to 1972, Mr. Stout worked as a law clerk for two members of the USPTO Board of Appeals and, from 1968 to 1972. Mr. Stout was an assistant examiner at the USPTO, where he focused on patent applications covering radio and television technologies. Mr. Stout has written and prosecuted hundreds of patent applications in diverse technologies, rendered opinions on patent infringement and validity, and has testified as an expert witness regarding obtaining and prosecuting patents. Mr. Stout is also the co-founder of NTP Inc., which licensed Research in Motion (RIM), the maker of the Blackberry handheld devices, for $612.5 million to settle a patent infringement action. Mr. Stout also servespreviously served on the Board of Directors of Tessera Technologies, Inc. (TSRA). Mr. Stout is a member of the bars of the District of Columbia and Virginia, and is admitted to practice before the Supreme Court of the United States, the Court of Appeals for the Federal Circuit and the
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USPTO. Mr. Stout holds a Bachelor’s degree in Electrical Engineering, with distinction, from Pennsylvania State University, and a J.D., with honors, from The George Washington University.
We believe Mr. Stout’s experience inhistorical knowledge of the Company and intellectual property lawexperience qualifies him to serve on our Board of Directors.
Michael Lebowitz joined our Board of Directors in April 2020. An expert in customer experience strategy and innovation, Mr. Lebowitz has a twenty-five year track record in defining creative strategy and vision for some of the world’s most recognizable brands. Mr. Lebowitz founded Big Spaceship, a globally-recognized creative consultancy, in 2000 and has served as Chief Executive Officer of Big Spaceship since its founding. Mr. Lebowitz received his Bachelor’s degree in Film from Vassar College.
We believe Mr. Lebowitz’s extensive experience in the area of creative brand strategy qualifies him to serve on our Board of Directors.
Executive Officer
James A. Berry
Mr. Berry joined XpresSpa as its Chief Financial Officer in December 2020. For the past 20 years, he has provided financial and administrative leadership to healthcare organizations delivering urgent and emergency medical services. With annual patient volumes topping 200,000 visits, he has optimized revenue cycle processes; negotiated strong payer contracts; controlled spending; developed provider compensation plans; overseen accounting functions; developed planning, reporting, and business intelligence analytics; managed investment accounts; evaluated and oversaw benefit programs; and raised equity and debt capital for rapidly expanding enterprises. He is also experienced leading support functions including IT, HR, payroll, and business development.
In his most recent role, Mr. Berry served as CFO for ClearChoiceMD Urgent Care from 2016 to December 2020, where he has been instrumental in creating partnerships with large health care delivery systems, ranging from financial joint ventures to affiliation agreements, managed services agreements, and memorialized letters of understanding. Prior to that, Mr. Berry served as Vice President-Finance and Corporate Treasurer of CareWell Urgent Care, a high-growth developer and operator of urgent care centers, from 2013 to 2016. He has testified before a New Hampshire legislature subcommittee, supporting Critical Access Hospitals, and has presented at the National Urgent Care Association annual meeting. Prior to his career in healthcare services, Mr. Berry held positions in the medical devices space, including Johnson & Johnson, a VC backed startup, and a small public company turnaround.
He holds a Bachelor of Science in Biochemistry (University of Massachusetts-Amherst) and an MBA from Purdue (Krannert Graduate School of Business).
Committees of the Board of Directors and Meetings
Meeting Attendance. During the fiscal year ended December 31, 20142021, there were eighteen (18)8 meetings of our Board of Directors and theas well as 4 unanimous written consents. The various committees of the Board of Directors met a total of twelve (12)4 times. No directorAll directors attended fewermore than 75%75 percent of the aggregate of the total number of meetings of the Board of Directors and the total number of meetings held by all committees of the Board of Directorsboard on which he served during fiscal 2014.served. The Board of Directors has adopted a policy under which each member of the Board of Directors is strongly encouraged, but not required, to attend each annual meeting of our stockholders. All five of our directors attended our 2021 annual meeting of stockholders.
Audit Committee. Our Audit Committee met eight (8)4 times during fiscal 2014.2021. This committee currently has three (3) members, Noel J. SpiegelRobert Weinstein (Chairman), H. Van SinclairBruce T. Bernstein and Ashley C. Keller.Donald E. Stout. Our Audit Committee’s role and responsibilities are set forth in the Audit Committee’s written charter and include the authority to retain and terminate the services of our independent registered public accounting firm. In addition, the Audit Committee reviews our annual and quarterly financial statements, considers matters relating to accounting policy and internal controls and reviews the scope of annual audits. All
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The Board determined that all members of the Audit Committee satisfyqualify as independent under the current independencelisting standards promulgated by the United States SecuritiesSEC and Exchange Commission (“SEC”) and The NASDAQ Stock Market (“NASDAQ”),Nasdaq, as such standards apply specifically to members of audit committees. The Board of Directors has determined that both Messrs. SpiegelWeinstein and SinclairBernstein are “audit committee financial experts,” as defined by the SEC in Item 407 of Regulation S-K.
A copy of the Audit Committee’s written charter is publicly available through the “Investors — Corporate Governance” section of our website atwww.vringoip.com www.xpresspagroup.com/corp_governance.
Compensation Committee. Our Compensation Committee, met six (6) timeswhich did not meet during fiscal 2014. This committee currently2021, has three (3)two (2) members, John EngelmanBruce T. Bernstein (Chairman), and Donald E. Stout and Noel J. Spiegel. Ashley C. Keller served as a member of the Compensation Committee through January 15, 2015. Mr. Stout joined the Compensation Committee on January 15, 2015.
Stout.
Our Compensation Committee’s role and responsibilities are set forth in the Compensation Committee’s written charter and includes reviewing, approving and making recommendations regarding our compensation policies, practices and procedures to ensure that legal and fiduciary responsibilities of the Board of Directors are carried out and that such policies, practices and procedures contribute to our success. Our Compensation Committee also administers our 2012 Employee, Director and Consultant Equity Incentive Plan (the “2012 Plan”)and our 2006 Stock Option2020 Equity Incentive Plan (the “2006“2020 Plan”). The Compensation Committee is responsible for (1) the determination of the compensation of our CEO,Chief Executive Officer, and shall conductconducts its decision makingdecision-making process with respect to that issue without the CEOChief Executive Officer present, (2) the determination of the compensation of the executive officers of the Company other than the Chief Executive Officer based upon the recommendation of the Chief Executive Officer and such other customary factors that the Committee deems necessary or appropriate, and (3) the establishment and reviewingreview of general compensation policies with the objective of attracting and retaining superior talent, rewarding individual performance and achieving our financial goals. The Compensation Committee has the authority to directly retain the services of independent consultants and other experts to assist in fulfilling its responsibilities. During fiscal year 2014, based on the recommendation of management,2021, the Compensation Committee did not engage third partya third-party compensation consultants.consultant to review the Company’s compensation structure as well as benchmark it against the Company’s peer group.
AllThe Board determined that both members of the Compensation Committee qualify as independent under the definition promulgated by NASDAQ.Nasdaq listing standards. A copy of the Compensation Committee’s written charter is publicly available through the “Investors — Corporate Governance” section of our website at www.vringoip.comwww.xpresspagroup.com/corp_governance.
Nominating and Corporate Governance Committee. Our Nominating and Corporate Governance Committee met two (2) timeswhich did not meet during fiscal year 2014 and2021, currently has two (2) members, H. Van Sinclair (Chairman)Bruce T. Bernstein and Ashley C. Keller.Donald E. Stout. The Nominating and Corporate Governance Committee’s role and responsibilities are set forth in the Nominating and Corporate Governance Committee’s written charter and is authorized to:
identify and nominate members of the Board of Directors; |
oversee the evaluation of the Board of Directors and management; |
develop and recommend corporate governance guidelines to the Board of Directors; |
evaluate the performance of the members of the Board of Directors; and |
make recommendations to the Board of Directors as to the structure, composition and functioning of the Board of Directors and its committees. |
We have no formal policy regarding board diversity. Our Nominating and Corporate Governance Committee and Board of Directors may therefore consider a broad range of factors relating to the qualifications and background of nominees, which may include diversity, which is not only limited to race, gender or national origin. Our Nominating and Corporate Governance Committee’s and Board of Directors’ priority in selecting boardBoard members is identification of persons who will further the interests of our stockholders through his or her established record of professional accomplishment, the ability to contribute positively to the collaborative culture among boardBoard members and professional and personal experiences and expertise relevant to our growth strategy.
All members of the Nominating and Corporate Governance Committee qualify as independent under the definition promulgated by NASDAQ. In addition, under our current corporate governance policies, the Nominating and Corporate Governance Committee may consider candidates recommended by stockholders as well as from other sources such as other directors or officers, third party search firms or other appropriate sources. For all potential candidates, the Nominating and Corporate Governance Committee may consider all factors it deems relevant, such as a candidate’s personal integrity and sound judgment, business and professional skills and experience, independence, knowledge of the industry in which we operate, possible conflicts of interest, diversity, the extent to which the candidate would fill a present need on the Board of Directors, and
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concern for the long-term interests of the stockholders. In general, persons recommended by stockholders will be considered on the same basis as candidates from other sources.
The Board determined that both members of the Nominating and Corporate Governance Committee qualify as independent under the Nasdaq listing standards. A copy of the Nominating and Governance Committee’s written charter is publicly available through the “Investors — Corporate Governance” section of our website atwww.vringoip.comwww.xpresspagroup.com/corp_governance.
Additional Committee – the Strategic Affairs Committee. The Strategic Affairs Committee was formed in September of 2021 to assist the Board in in reviewing, analyzing, considering and assessing, potential acquisitions, joint ventures, strategic investments, divestitures and other strategic transactions. The committee’s current members are Bruce T. Bernstein (chairman), Robert Weinstein and Michael Lebowitz. The Strategic Affairs Committee’s responsibilities include, among others:
● | assisting management with the identification of potential acquisition, joint venture, strategic investment, divestiture and other strategic transaction opportunities and review transaction candidates with management, when and as appropriate; |
● | evaluating strategic transactions received by the Company or proposed by management; and |
● | overseeing and coordinating the process of reviewing, analyzing and responding to proposals received by the Company or proposed by management with respect to such potential acquisition, joint venture, strategic investment, divestiture and other strategic transaction opportunities. |
Board Leadership Structure and Role in Risk Oversight
Mr. Perlman currently serves as our CEO and Mr. Sinclair, a non-management director, serves as our lead independent director. IfEffective February 5, 2018, the Board of Directors convenes for a special meeting,appointed Bruce T. Bernstein as the non-management directors will meet in executive session if circumstances warrant. Mr. Sinclair, as lead independent director, will preside over executive sessionsnon-executive Chairman of the Board of Directors.
The leadership structure of the Board currently consists of a Chairman of the Board who oversees the Board meetings. We separate the roles of Chairman of the Board and Chief Executive Officer in recognition of the differences between the two roles. Our Board believes this division of responsibility is an effective approach for addressing the risks we face. All of our Board committees are comprised of only independent directors. All Board committees are chaired by independent directors who report to the full Board whenever necessary. We believe this leadership structure helps facilitate efficient decision-making and communication among our directors and fosters efficient Board functioning at meetings.
Our management is primarily responsible for managing the risks we face in the ordinary course of operating our business. The Board oversees potential risks and our risk management activities by receiving operational and strategic presentations from management which include discussions of Directors overseeskey risks to our business and considers the risks associated with our business strategy and decisions.business. The Board also periodically discusses with management important compliance and quality issues. In addition, the Board has delegated risk oversight to each of Directors currently implementsits key committees within their areas of responsibility. For example, the Audit Committee assists the Board in fulfilling its oversight of the quality and integrity of our financial statements and our compliance with legal and regulatory requirements relating to our financial statements and related disclosures. The Compensation Committee assists the Board in its risk oversight function as a whole. Uponby overseeing strategies with respect to our incentive compensation programs and key employee retention issues. We believe our Board leadership structure facilitates the formationdivision of each of the board committees, the committees will also provide risk management oversight and report any material risks toresponsibilities among the Board committees and enhances the Board’s efficiency in fulfilling its oversight function with respect to difference areas of Directors.our business risks and our risk mitigation practices.
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Board Diversity Matrix
The Nasdaq diversity matrix is set forth below as required under the listing requirements of Nasdaq.
| | | | | | | | |
Board Diversity Matrix (As of April 19, 2022) | ||||||||
Total Number of Directors - 5 | | | | | ||||
| | Female | | Male | | Non-Binary | | Did Not Disclose Gender |
Part I: Gender Identity | | | | | | | | |
Directors | | | | 5 | | | | |
| | | | | | | | |
Part II: Demographic Background | | | | | | | | |
African American or Black | | | | | | | | |
Alaskan Native or Native American | | | | | | | | |
Asian | | | | | | | | |
Hispanic or Latinx | | | | | | | | |
Native Hawaiian or Pacific Islander | | | | | | | | |
White | | | | 5 | | | | |
Two or More Races or Ethnicities | | | | | | | | |
LGBTQ+ | | | | | | | | |
Did Not Disclose Demographic Background | | | | | | | | |
Delinquent Section 16(a) Beneficial Ownership Reporting ComplianceReports
Our records reflect that all reports which were required to be filed pursuant to Section 16(a) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”), requires our directors, executive officers and beneficial ownerswere filed on a timely basis, except that Donald E. Stout, a director, filed a Form 4 reporting receipt of more than 10% of our common stock to file with the SEC initial reports of ownership and reports of changes in the ownership of our common stock and otheran equity securities. Such persons are required to furnish us copies of all Section 16(a) filings.
Based solely upon a review of the copies of the forms furnished to us, we believe that our officers, directors and beneficial owners of more than 10% of our common stock complied with all applicable filing requirements during the fiscal year ended December 31, 2014.
grant one day late.
Code of Conduct and Ethics
We have adopted a code of conduct and ethics that applies to all of our employees, including our CEOprincipal executive officer and chiefprincipal financial and accounting officers.officer. The text of the code of conduct and ethics is posted on the “Investors — Corporate Governance” section of our website atwww.vringoip.comwww.xpresspagroup.com/corp_governance, and will be made available to stockholders without charge, upon request, in writing to the Corporate Secretary at 780 Third Avenue, 12th254 West 31 Street 11th Floor, New York, New York 10017.10001. Disclosure regarding any amendments to, or waivers from, provisions of the code of conduct and ethics that apply to our directors, principal executive and financial officers will be included in a Current Report on Form 8-K within four business days following the date of the amendment or waiver, unless website posting or the issuance of a press release of such amendments or waivers is then permitted by the rulesNasdaq rules.
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ITEM 11. EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
We have prepared the following Compensation Discussion and Analysis (“CD&A”) to provide you with information that we believe is necessary to understand our executive compensation policies and decisions as they relate to the compensation of our named executive officers (“NEOs”).
Overview
Below is a summary of our NEOs as of December 31, 2014:
In addition, Alexander R. Berger served as our Chief Operating Officer and Director through December 19, 2014, at which time he ceased to be an executive officer of the Company.
Company Performance, Compensation Determination Process, and Related Compensation Decisions
During 2014, a variety of decisions occurred with respect to the I/P Engine litigation against AOL Inc., Google Inc. et al. On August 15, 2014, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) reversed a judgment of the United States District Court for the Eastern District of Virginia by holding that the asserted claims of the patents-in-suit in the Company's wholly-owned subsidiary I/P Engine's litigation against AOL Inc., Google Inc. et al. are invalid for obviousness. On October 15, 2014, I/P Engine filed a petition for rehearing en banc, in which it argued that the majority's opinion in this case presents important questions of law and is at odds with a series of Supreme Court and Federal Circuit decisions which do not allow appellate judges to disregard a jury's detailed findings under these circumstances. I/P Engine argued that review is particularly appropriate here, where the panel majority not only failed to adopt the proper legal standard, but explicitly rejected it.On December 15, 2014, the Federal Circuit denied I/P Engine's petition for rehearing of the case en banc and consequently, we announced thatI/P Engine will seek review by the U.S. Supreme Court of the Federal Circuit's decision.
During the second half of the year, the Company’s stock price declined and the closing price of the Company’s stock on December 31, 2014 was $0.55.The decline in stock price resulted in a significantly lower market capitalization and, as a result, influenced the Company’s compensation decisions.In addition, as a result of our 2014 Annual Meeting of Stockholders, the Company received a 65% vote in support of its executive compensation program in the 2014 Say-on-Pay advisory vote (the “Advisory Vote”) and this was taken into account by the Compensation Committee.
In establishing compensation amounts for executives, the Compensation Committee seeks to provide compensation that is competitive in light of current market conditions and industry practices. Accordingly, the Compensation Committee annually reviews market data which is comprised of proxy-disclosed data from peer companies and information from nationally recognized published surveys for general and high-technology industry, adjusted for size. For 2014, these peer companies included VirnetX (NYSE:VHC), Acacia Research Corporation (NASDAQ:ACTG), Interdigital, Inc. (NASDAQ: IDCC), Unwired Planet, Inc. (NASDAQ:UPIP), Parkervision Inc. (NASDAQ:PRKR), Pendrell Corporation (NASDAQ:PCO), and Document Security Systems, Inc. (NYSE:DSS). The market data helps the Compensation Committee gain perspective on the compensation levels and practices at the peer companies and to assess the relative competitiveness of the compensation paid to the company’s executives. The market data thus guides the Compensation Committee in its efforts to set executive compensation levels and program targets at competitive levels for comparable roles in the marketplace. The Compensation Committee then takes into account other factors, such as the importance of each executive officer’s role to the company, individual expertise, experience, and performance, retention concerns and relevant compensation trends in the marketplace, in making its final compensation determinations.
The Compensation Committee reviews the performance of each NEO annually in light of the above factors and determines whether the NEO should receive any increase in base salary or receive a discretionary equity award based on such evaluation. The CEO also provides input related to the performance and compensation evaluation of each NEO, but does not provide input related to his own performance and compensation evaluation. During fiscal year 2014, the Compensation Committee did not utilize quantitative measures connected to financial results, such as revenues or profitability, with respect to compensation, as the Company did not generate net income during the year.
Our Compensation Committee held six meetings during 2014 to consider appropriate actions with respect to executive compensation including the appropriateness of cash bonuses, salary increases, and granting equity awards for 2014 performance.The Compensation Committee and the Board of Directorsconcluded that there would be no cash bonuses paid to employees,including the CEO and all other NEOs, for 2014 as the Company did not generate net income during the year. Further,the Compensation Committee and the Board of Directors decided that there would be no annual equity awards granted tothe CEO or the other NEOsin early 2015 given our 2014 results and decline in the stock price.The Compensation Committee and the Board of Directors also decided that there would be no salary increases for the CEO or all other executive officers, except for contractual salary increases of $15,000 to both Mr. Perlman and Mr. Berger, and salary increases of $15,000 to both Mr. Cohen and Ms. Nyrkovskaya to reflect the increase in cost of living. The results of the Advisory Vote were also taken into consideration by the Compensation Committee in making these decisions and in evaluating the full scale of executive compensation for 2014. The Compensation Committee and the Board of Directors believe that these decisions demonstrate the strong linkage between executive pay and feedback from our investors and our Company’s 2014 financial results.
During the first quarter of 2014, we granted Ms. Nyrkovskaya 300,000 options, and Mr. Cohen 100,000 options, both at an exercise price of $4.10, vesting quarterly over a three year period, related to their individual performance during 2013. The decision to do so was made based on the results of the market data review and other analyses performed by the Compensation Committee, in order to adjust the compensation of these individuals to competitive levels for comparable roles in the marketplace. There were no other equity awards granted to NEOs in 2014.
The Compensation Committee and the Board of Directors believe the 2014 compensation decisions and the overall executive compensation program are tailored to our business strategies, align pay with performance, and take into account feedback received from investors. We will continue our engagement with our stockholders regarding our executive compensation program as well as other governance matters.
Compensation Components and Philosophy
We currently provide two basic forms of direct compensation to our employees, including the CEO and the other NEOs: base salary and equity awards. Equity awards include stock options to purchase shares of our common stock and restricted stock units (“RSUs”). Equity awards granted to our NEOs typically vest in equal quarterly installments, over a period of three years. On an annual basis, each of these compensation components are reviewed by our Compensation Committee for each of our employees, including our CEO and the other NEOs, to ensure that compensation levels remain appropriate. We have not historically paid annual cash bonuses to our NEOs.
Overall, we and our Compensation Committee, are committed to the principle that executive compensation should be directly tied into value creation for our shareholders.
Historically, the Company has not experienced substantial revenues or positive cash flows, and accordingly, no annual cash bonuses have been paid to our CEO or the other NEOs. In addition, the value of stock options granted to executives are contingent upon performance of our Company’s stock, while time-based RSU granted in the past further align our executives with our shareholders by providing executives with meaningful, direct ownership stake in our stock.
Our goal is to attract and retain the best available executive talent to lead our Company. This can be challenging given the competitive environment in which we operate and considering the Company’s limited financial resources until we achieve sufficient revenues, if ever. We also strive to align the interests of our executive officers with those of our shareholders. Therefore, a substantial portion of our executives’ compensation is structured as long-term equity compensation including stock options and RSUs.
Employment Agreements
We have entered into employment agreements with our NEOs. Each of these agreements provides for certain payments and other benefits if the executive’s employment terminates under certain circumstances other than for “cause,” including in connection with a “change in control.” See the subsection “Narrative to Summary Compensation Table and Grants of Plan-Based Awards Table” for a description of the agreement terms impacting current compensation and “Potential Payments upon Termination or Change-in-Control” for a description of applicable severance and change in control benefits.
Our Compensation Committee believes that change-in-control and severance arrangements are important parts of the overall compensation program for our NEOs. Severance arrangements are used primarily to attract, retain and motivate individuals with the requisite experience and ability to drive our success. Severance arrangements also serve, in part, as consideration to secure commitments from our executive officers not to compete with us after termination of their employment.
Compensation Policies and Practices Related to Risk Management
Consistent with SEC disclosure requirements, we have evaluated the potential risks related to our compensation policies, practices and awards and have concluded that there are no risks that are reasonably likely to have a material adverse effect on the Company. We do not have any programs where a participant may be able to directly affect variability or timing of payout. Rather, our compensation programs include a combination of fixed base salaries and, equity awards that are generally uniform in design and operation throughout the Company.
Compensation Committee Report
The Compensation Committee of our Board of Directors has reviewed and discussed with members of management the CD&A section included in this Form 10-K/A, as required by Item 402(b) of Regulation S-K. Based on this review and discussion, the Compensation Committee recommended to the Board of Directors that the CD&A be included in this Form 10-K/A.
Members of the Compensation Committee
John Engelman, Chairman
Ashley C. Keller
Noel J. Spiegel
Donald E. Stout
Compensation Committee Interlocks and Insider Participation
During the fiscal year ended December 31, 2014, Messrs. Engelman, Keller and Spiegel served as members of our Compensation Committee. In 2014, none of our executive officers served on the Board of Directors or compensation committee of any entity that had one or more executive officers serving as a member of our Board of Directors or Compensation Committee. There are no family relationships between or among the members of our Board of Directors or executive officers.
Summary Compensation Table
The following table showssummarizes the total compensation awarded or paid or accruedby us during the fiscal years ended December 31, 2014, 20132021 and 20122020 to (1)(i) our Chief Executive Officer, (2) our Chief Technology Officerprincipal executive officer; and President, (3) our Chief Financial Officer, and (4) our Chief Legal and Intellectual Property Officer, who are all of our executive officers during and at(ii) the end of our fiscal year ended December 31, 2014. The table also includes our Former Chief Operating Officer, who would have been among the threetwo most highly compensated executive officers except forother than the fact that heprincipal executive officer who was not serving as an executive officer of the Company as of the end of the fiscal year endedat December 31, 2014.2021 (collectively, the “named executive officers”).
Name and principal position | Year | Salary ($) | Stock awards ($) (1) | Option awards ($) (1)) | All other compensation ($) | Total ($) | ||||||||||||||||
Andrew D. Perlman | 2014 | 400,000 | — | — | — | 400,000 | ||||||||||||||||
Chief Executive Officer | 2013 | 385,000 | 556,500 | 1,425,675 | — | 2,367,175 | ||||||||||||||||
2012 | 240,289 | 2,511,100 | 4,289,556 | (2) | 169,080 | 7,209,925 | ||||||||||||||||
Andrew Kennedy Lang | 2014 | 385,000 | — | — | — | 385,000 | ||||||||||||||||
Chief Technology Officer and President | ||||||||||||||||||||||
Anastasia Nyrkovskaya | 2014 | 312,938 | — | 695,051 | — | 1,007,989 | ||||||||||||||||
Chief Financial Officer | ||||||||||||||||||||||
David L. Cohen, Esq. | 2014 | 312,938 | — | 231,684 | — | 544,622 | ||||||||||||||||
Chief Legal and Intellectual | 2013 | 300,000 | 159,000 | 456,216 | — | 915,216 | ||||||||||||||||
Property Officer | 2012 | 163,343 | 186,000 | 1,781,963 | — | 2,131,306 | ||||||||||||||||
Alexander R. Berger | 2014 | 389,487 | — | — | — | 389,487 | ||||||||||||||||
Former Chief | 2013 | 385,000 | 556,500 | 1,368,648 | — | 2,310,148 | ||||||||||||||||
Operating Officer(3) | 2012 | 102,836 | 2,511,000 | 3,419,870 | — | 6,033,706 |
| | | | | | | | | | | | |
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| |
| |
| Non-Equity |
| | | |
| |
| | | | | | Incentive Plan | | Option | | Stock | | |
| | | | Salary | | Compensation | | Awards | | Awards | | Total |
Name and principal position | | Year | | ($) | | ($) | | ($)(1) | | ($)(1) | | ($) |
Douglas Satzman (1) (2) |
| 2021 |
| 472,115 |
| — |
| 1,042,934 | | 326,000 |
| 1,841,049 |
Chief Executive Officer | | 2020 |
| 387,578 |
| 135,000 |
| 108,070 | | 38,625 |
| 669,273 |
|
| | | | | | | | | | | |
Scott Milford (3) |
| 2021 |
| 350,000 |
| — |
| 768,479 | | — |
| 1,118,479 |
Chief Operating Officer | | 2020 |
| 279,582 |
| 90,000 |
| 192,394 | | 67,552 |
| 629,528 |
| | | | | | | | | | | | |
James A Berry(4) |
| 2021 |
| 263,942 | | 47,203 | | — | | — | | 311,145 |
Chief Financial Officer |
| 2020 |
| 9,615 | | — | | 211,940 | | — | | 221,555 |
(1) | Amounts represent the aggregate grant date fair value in accordance with FASB ASC Topic |
(2) | Mr. Satzman served as our Chief Executive Officer since February 11, 2019 until January 19, 2022. Compensation in 2021 and 2020 includes equity awards of stock options |
(3) | Mr. |
(4) | Mr. Berry has served as our |
Grants of Plan-Based Awards Table
The following table shows information regarding grants of equity awards that were made during the year ended December 31, 2014 to our NEOs. All awards were made under our 2012 Plan. There were no grants of non-equity incentive plan awards to our NEOs during 2014.
Name and principal position | Grant Date | Number of Securities Underlying Options (#)(1) | Exercise Price of Option Awards ($ per Share) | Grant Date Fair Value of Option Awards ($)(2) | ||||||||||
Anastasia Nyrkovskaya Chief Financial Officer | February 20, 2014 | 300,000 | $ | 4.10 | $ | 695,051 | ||||||||
David L. Cohen, Esq. Chief Litigation and Intellectual Property Officer | February 20, 2014 | 100,000 | $ | 4.10 | $ | 231,684 | ||||||||
Andrew D. Perlman Chief Executive Officer | — | — | — | — | ||||||||||
Andrew Kennedy Lang Chief Technology Officer and President) | — | — | — | — | ||||||||||
Alexander R. Berger Former Chief Operating Officer | — | — | — | — |
Narrative Disclosure to Summary Compensation Table and Grants of Plan-Based Awards Table
Andrew D. Perlman
Douglas Satzman
On March 18, 2010,February 11, 2019, we entered into an employment agreement with Andrew D. PerlmanMr. Satzman, which provided for 90 days’ notice of termination by the Company other than for cause or by Mr. Perlman in order to resign. During the term of his employment, through March 31, 2012, Mr. Perlman’s annual base salary was $175,000. In addition, he was eligible to receive $5,000 at the end of each quarter.
In March 2012, Mr. Perlman was appointed as our Chief Executive Officer. In connection with Mr. Perlman’s new position, the Board of Directors agreed to the following revised employment terms: base salary of $250,000 per year and severance equal to one year’s base salary to be paid in the event he ceases to be our Chief Executive Officer pursuant to a change of control transaction.
On February 13, 2013, we entered into a new employment agreement with Mr. Perlman. Mr. Perlman’s employment agreement hashad a term of three (3) years. Mr. Perlman andyears provided that the Company have agreed to commence negotiations to enter into a new employment agreement at least six (6) monthswould extend in two month increments for up to one (1) year thereafter for each month that the negotiations for an extension to the Employment Agreement were not concluded prior to sixth months before the expirationend of the three-year term and to conclude those negotiations no later than the date that is three (3) months prior to the expiration of the term of the employment agreement.term. Under the terms of the new employment agreement, Mr. PerlmanSatzman received aan annual base salary of $385,000 effective January 1, 2013 until December 31, 2013. From January 1, 2014 to December 31, 2014, Mr. Perlman received a base salary of $400,000. From January 1, 2015 through the remainder of the term of the employment agreement, Mr. Perlman will be entitled to receive a base salary of $415,000. In addition, Mr. Perlman will be$400,000 and was eligible to participate in any annual bonus or other incentive compensation program that we may adoptadopted from time to time for our executive officers. In addition,If Mr. Satzman earned any bonus or non-equity based incentive compensation which remained unpaid upon termination of employment for any reason, whether by Mr. Satzman or us other than for cause, then the employment agreement provided that Mr. Satzman would be entitled to receive a pro- rata portion of such incentive compensation at the time it was paid. Mr. Satzman resigned from the Company on February 1, 2013,January 19, 2022 and received the amounts set forth below under “Potential Payments upon Termination or Change-In-Control.”
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Scott Milford
On July 8, 2019, we entered into an indemnificationemployment agreement with Mr. Perlman.Milford, pursuant to which he agreed to serve as our Chief People Officer for an annual base salary of $280,000 and $300,000, for the first year ended July 31, 2020 and the second year ending on July 31, 2021, respectively. After July 31, 2021, Mr. Milford continued to be employed by the Company as an ‘at will’ employee, subject to annual review by the Compensation Committee. Mr. Milford was also entitled to a one-time 10% minimum guaranteed bonus for 2019 to be calculated off his Base Salary as of his July 8, 2019 commencement date as well as to participate in any annual bonus or other incentive compensation program that the Company may adopt from time to time for its executive officers. Mr. Milford was promoted to Chief Operating Officer in December 2020; no changes to his compensation were made at that time in connection with the promotion.
On March 28, 2022, the Company and Mr. Milford entered into an Executive Employment Agreement effective as of January 19, 2022, the date of Mr. Milford’s assumption of the role of CEO. The agreement has a term of two years from such January 19, 2022 effective date. Following that period, Mr. Milford will continue to be employed by the Company as an “at will” employee. Mr. Milford is entitled to receive an annual base salary of $425,000. He is also eligible to participate in any annual bonus and other incentive compensation program that the Company may adopt from time to time for its executive officers. Mr. Milford is eligible to earn an annual bonus, the target amount of which is up to one hundred percent (100%) of his base salary, based upon the achievement of performance goals and metrics established by the Board at its sole discretion. Any bonus will be determined as soon as reasonably practicable after the Company’s annual financial statements are finalized and will be split 50/50 between cash and a grant of restricted stock units with respect to the Company’s common stock.
In the event the employment agreement is terminated for (i) Good Reasongood reason by Mr. Perlman,Milford, or (ii) by usthe Company without Cause,cause and Mr. PerlmanMilford provides the Company with a release of claims, Mr. Milford shall be entitled to receive ana cash severance payment in the amount of base salary (at the rateone hundred percent (100%) of base salary in effect immediately prior to such termination) equal to the lesser of (x) one times thehis then current base salary and (y) two times the base salary payable for the numberone year of full months remaining in the employment period, and COBRA continuation coverage paid in full by us for up to a maximum of twelve months followingcoverage. In addition, the date of termination. “Cause” as used Mr. Perlman’s employment agreement means: (a)contains non-solicitation and non-competition provisions that apply during the willful and continued failureterm of Mr. Perlman to perform substantially his duties and responsibilities for the Company (other than any such failure resulting from his death or disability) after a written demand by the Board of Directors for substantial performance is delivered to Mr. Perlman by the Company, which specifically identifies the manner in which the Board of Directors believes that Mr. Perlman has not substantially performed his duties and responsibilities, which willful and continued failure is not cured by Mr. Perlman within thirty days of his receipt of such written demand; (b) the conviction of, or plea of guilty or nolo contendere to a felony, (c) intentional breach of his non-compete obligations, (d) an intentional breach of the non-disclosure and non-solicitation agreement; or (e) a unanimous good faith finding by the Board of Directors that Mr. Perlman has engaged in fraud, dishonesty, gross negligence or misconduct which, if curable, has not been cured within thirty days after his receipt of a written notice from the Board of Directors stating with reasonable specificity the basis of such finding. “Good Reason” as used Mr. Perlman’s employment agreement means (a) the assignment, without Mr. Perlman’s consent, to Mr. Perlman of duties that result in a substantial diminution of the duties that he assumed; provided, however, the failure of Mr. Perlman to be reelected to the Board of Directors shall not be deemed to be a diminution of duties; (b) the assignment, without Mr. Perlman’s consent, of a title that is subordinate to the title Chief Executive Officer; (c) a reduction in Mr. Perlman’s base salary; (d) the Company’s requirement that Mr. Perlman regularly report to work in a location that is more than fifty miles from the Company’s current New York office, without the Mr. Perlman’s consent; (e) a change in reporting relationship, provided however, that Good Reason does not include a change in the reporting relationship whereby Mr. Perlman will report to the Board of Directors of an acquiring company after a change of control (as that term is defined in the Company’s 2012 Employee, Director and Consultant Equity Incentive Plan); or (f) a material breach by the Company of Mr. Perlman’s employment agreement.
Mr. Perlman’s employment agreement requires Mr. Perlman to assign intellectual property which he conceives or reduces to practice during his employment to us and to maintain our confidential information duringMilford's employment and thereafter. Mr. Perlman is also subject to a non-competition and a non-solicitation provision for a period of two years following termination of his employment.six months thereafter.
Andrew Kennedy Lang
Mr. Lang’s current employment agreement terminates on September 22, 2015. In the event that the employment agreement is terminated by (i) us without Cause, or (ii) by Mr. Lang with Good Reason, Mr. Lang shall be entitled to receive twelve (12) months of base salary, continued coverage, at the Company'sexpense, under all benefit plans in which Mr. Lang was a participantimmediately prior to his last date of employment with the Company, or, in the eventthat any such benefit plans do not permit coverage of Mr. Lang following his lastdate of employment with the Company, under benefit plans that provide no lesscoverage than such benefit plans, for a period following the termination ofemployment oftwelve (12) months, and a pro rata bonuspayment, payable in a lump sum, for the year in which Mr. Lang’s employment isterminated, which shall be pro-rated based upon the number of full weeks worked byMr. Lang in such year and calculated as the greater of (a) the bonus paid toMr. Lang in the calendar year immediately prior to the year in which his employmentis terminated, if any, and (b) the bonus payable to Mr. Lang in the year in which hisemployment is terminated based upon the achievement of Company and/or individualobjectives established for the achievement of a bonus in such year, if any.
In the event that Mr. Lang terminates the employment agreement with Good Reason or in the event that we terminate the employment agreement without Cause, the party terminating the agreement must inform the other party thirty (30) days before doing so. “Cause” as used in Mr. Lang’s employment agreement means: (a) the willful and continued failure of Mr. Lang to perform substantially his duties and responsibilities for the Company (other than any such failure resulting from Mr. Lang’s death or disability) after a written demand by the Company’s Board of Directors for substantial performance is delivered to Mr. Lang by the Company, which specifically identifies the manner in which the Company’s Board of Directors believes that Mr. Lang has not substantially performed his duties and responsibilities, which willful and continued failure is not cured by Mr. Lang within thirty (30) days of his receipt of such written demand, (b) the conviction of, or plea of guilty ornolo contendereto a felony, (c) violation of the Confidential Information, Non-Competition and Non-Solicitation, or Non-Disparagement sections of the employment agreement, or (d) fraud, dishonesty or gross misconduct, which is materially and demonstratively injurious to the Company. “Good Reason” as used in Mr. Lang’s employment agreement means: (a) the assignment, without Mr. Lang’s consent, to Mr. Lang of duties that are significantly different from, or that result in a substantial diminution of, the duties that he assumed on the effective date of the employment agreement, (b) the assignment, without Mr. Lang’s consent, to Mr. Lang of a title that is different from and subordinate to his current title, (c) a reduction in Mr. Lang’s base salary, (d) the Company's requirement that Mr. Lang regularly report to work in a location that is more than thirty miles from the Company’s New York office as of the date of the employment agreement, without Mr. Lang’s consent, or (e) a material breach by the Company of the employment agreement.
Mr. Lang’s employment agreement requires Mr. Lang to assign intellectual property which he conceives or reduces to practice during his employment to us and to maintain our confidential information during employment and thereafter. Mr. Lang is also subject to (i) a non-competition and a non-solicitation provision for a period of one year, which we, upon notice, may increase to two years, and (ii) a non-disparagement provision for a period of three years, following termination of his employment.
Anastasia Nyrkovskaya
James A. Berry
On December 19, 2014,November 27, 2020, we entered into an employment agreementoffer letter with Ms. NyrkovskayaforMr. Berry, pursuant to which he agreed to serve as our Chief Financial Officer for an eighteen month term. Under the terms of her employment agreement, Ms. Nyrkovskaya’s annual base salary is $315,000. In the event the employment agreement is terminated for (i) Good Reason by Ms. Nyrkovskaya, or (ii)of $250,000, subject to annual review by the Company without Cause, Ms. Nyrkovskaya shall be entitledCompensation Committee. Mr. Berry also received a signing bonus of $25,000, and a sign-on equity award of $250,000 of stock options. He is eligible to receive an amounta short-term incentive with a target payout of 50% of his annual base salary, at the rate of base salaryas well as to participate in effect immediately prior to such termination equal to twelve months of base salary, and COBRA continuation coverage paid in full by the Company for up to a maximum of twelve months following the date of termination.
In case the agreement is terminated by Ms. Nyrkovskaya without Good Reason, she shall provide the Company with a written notice, at least ninety calendar days prior to such termination. "Cause" as used in Ms. Nyrkovskaya’s employment agreement means: (a) the willful and continued failure of Ms. Nyrkovskaya to perform substantially her duties and responsibilities for the Company (other than any such failure resulting from her deathannual bonus or disability) after a written demand by the chief executive officer for substantial performance is delivered to Ms. Nyrkovskaya by the Company, which specifically identifies the manner in which the chief executive officer believesother incentive compensation program that Ms. Nyrkovskaya has not substantially performed her duties and responsibilities, which willful and continued failure is not cured by Ms. Nyrkovskaya within thirty days of her receipt of such written demand; (b) the conviction of, or plea of guilty or nolo contendere to a felony, (c) breach of her non-compete obligations, (d) breach of the non-disclosure and non-solicitation agreement; or (e) a good faith finding by the chief executive officer that Ms. Nyrkovskaya has engaged in fraud, intentional dishonesty, or gross negligence. "Good Reason" as used Ms. Nyrkovskaya’s employment agreement means (a) the assignment, without Ms. Nyrkovskaya’s consent, to Ms. Nyrkovskaya of duties that result in a substantial diminution of the duties that she assumed; (b) the assignment, without Ms. Nyrkovskaya’s consent, of a title that is subordinate to the title Chief Financial Officer; (c) a reduction in Ms. Nyrkovskaya’s base salary; (d) the Company’s requirement that Ms. Nyrkovskaya regularly report to work in a location that is more than fifty miles from the Company’s current New York office, without Ms. Nyrkovskaya’s consent; (e) a material breach by the Company of the agreement during its term. Ms. Nyrkovskaya’s employment agreement also includes a covenant not to compete with the Company or solicit any material commercial relationships of the Company for a period of one year after Ms. Nyrkovskaya is actually no longer employed by the Company.
David L. Cohen, Esq.
On July 19, 2012, we assumed all of the duties, obligations and liabilities of Innovate/Protect under the employment agreement with David L. Cohen. Mr. Cohen’s employment was at will, meaning that either the employee or the Company may have terminated the relationship with or without cause, without any prior notice. Under the termsadopt from time to time for its executive officers.
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On May 7, 2013, we entered into a new employment agreement with Mr. Cohen, for a three-year term, unless sooner terminated, in accordance with the terms set therein. Under the terms of his employment agreement, Mr. Cohen is currently entitled to receive a base salary of $300,000. In the event the employment agreement is terminated for (i) Good Reason by Mr. Cohen, or (ii) by the Company without Cause, Mr. Cohen shall be entitled to receive an amount of base salary (at the rate of base salary in effect immediately prior to such termination) equal to twelve months of base salary, and COBRA continuation coverage paid in full by the Company for up to a maximum of twelve months following the date of termination.
In case the agreement is terminated by Mr. Cohen without Good Reason, he shall provide the Company with a written notice, at least ninety calendar days prior to such termination. “Cause” as used Mr. Cohen’s employment agreement means: (a) the willful and continued failure of Mr. Cohen to perform substantially his duties and responsibilities for the Company (other than any such failure resulting from his death or disability) after a written demand by the Board of Directors for substantial performance is delivered to Mr. Cohen by the Company, which specifically identifies the manner in which the Board of Directors believes that Mr. Cohen has not substantially performed his duties and responsibilities, which willful and continued failure is not cured by Mr. Cohen within thirty days of his receipt of such written demand; (b) the conviction of, or plea of guilty or nolo contendere to a felony, (c) intentional breach of his non-compete obligations, (d) an intentional breach of the non-disclosure and non-solicitation agreement; or (e) a unanimous good faith finding by the Board of Directors or the chief executive officer that Mr. Cohen has engaged in fraud, dishonesty, gross negligence. “Good Reason” as used Mr. Cohen’s employment agreement means (a) the assignment, without Mr. Cohen’s consent, to Mr. Cohen of duties that result in a substantial diminution of the duties that he assumed; (b) the assignment, without Mr. Cohen’s consent, of a title that is subordinate to the title Chief Legal and Intellectual Property Officer; (c) a reduction in Mr. Cohen’s base salary; (d) the Company’s requirement that Mr. Cohen regularly report to work in a location that is more than fifty miles from the Company’s current New York office, without the Mr. Cohen’s consent; (e) a material breach by the Company of the agreement during its term. Mr. Cohen’s employment agreement also includes a covenant not to compete with the Company or solicit any material commercial relationships of the Company for a period of two years after Mr. Cohen is actually no longer employed by the Company.
Alexander R. Berger
On July 19, 2012, we assumed all of the duties, obligations and liabilities of Innovate/Protect under the employment agreement with Alexander R. Berger. Mr. Berger’s employment agreement had an initial term of eighteen months, with an option to either renegotiate the terms of the employment agreement prior to the expiration of the initial term. Under the terms of his agreement, Mr. Berger was entitled to receive a base salary of $150,000 and, upon the subsequent filing of a Securities and Exchange Commission Registration Statement, and consummation of financing of at least $7,000,000, his base salary was increased to $250,000. His agreement required us to provide him with 30 days’ notice of termination other than for cause and for him to provide us with 30 days’ notice of resignation.
On February 13, 2013, we entered into a new employment agreement with Mr. Berger. Mr. Berger’s prior employment agreement with us expired by its terms on February 9, 2013. Mr. Berger’s new employment agreement had a term of three years. Under the terms of his employment agreement, Mr. Berger received a base salary of $385,000 effective January 1, 2013 until December 31, 2013. From January 1, 2014 until his resignation, Mr. Berger received a base salary of $400,000. In addition, on February 1, 2013, we entered into an indemnification agreement with Mr. Berger. Mr. Berger’s employment agreement also included a covenant not to compete with the Company or solicit any material commercial relationships of the Company for a period of two years after Mr. Berger is actually no longer employed by the Company.
On December 19, 2014, Mr. Berger resigned from his positions as Chief Operating Officer, Secretary and a member of the Board of Directors of the Company. In connection with Mr. Berger’s resignation from his positions at the Company, he has agreed to transition to the role of an independent consultant pursuant to a consulting agreement with the Company. The consulting agreement terminates and supersedes the employment agreement between Mr. Berger and the Company, with the exception of certain noncompetition, non-disclosure and non-solicitation provisions that are to continue through the term of the consulting agreement.
As a condition of entering into the consulting agreement, Mr. Berger and the Company executed a mutual general release of claims that either party has or in the future may have against the other. Pursuant to the consulting agreement, Mr. Berger received a monthly retainer at a rate of $10,000 per month; in addition, all restricted stock units granted by the Company to Mr. Berger continued to vest in accordance with their terms until Mr. Berger ceased providing services to the Company, and all stock options outstanding, whether vested or unvested, were forfeited for no consideration.
The consulting agreement with Mr. Berger was terminated on March 13, 2015 and his then unvested restricted stock units were forfeited. Pursuant to the consulting agreement Mr. Berger received fees of $25,000.
Outstanding Equity Awards at 20142021 Fiscal Year End
The following table sets forth information regarding grants of stock options and unvested stock awards outstanding on the last day of the fiscal year ended December 31, 2014,2021, to each of our NEOs.named executive officers.
Options Awards | Stock Awards | |||||||||||||||||||||
Name | Number of securities underlying unexercised options (#) exercisable | Number of securities underlying unexercised options (#) un-exercisable | Option exercise price ($) | Option expiration date | Number of shares or units that have not vested (#) | Market value of shares or units that have not vested ($)(*) | ||||||||||||||||
Andrew D. Perlman | 90,000 | — | 5.50 | March 17, 2016 | — | — | ||||||||||||||||
Andrew D. Perlman | 90,000 | — | 5.50 | January 31, 2017 | — | — | ||||||||||||||||
Andrew D. Perlman(1) | — | — | — | — | 295,313 | 162,422 | ||||||||||||||||
Andrew D. Perlman(2) | 1,062,500 | 212,500 | 3.72 | July 26, 2022 | — | — | ||||||||||||||||
Andrew D. Perlman(2) | 328,167 | — | 1.65 | March 13, 2018 | — | — | ||||||||||||||||
Andrew D. Perlman(2) | 416,667 | 208,333 | 3.18 | February 11, 2023 | — | — | ||||||||||||||||
Andrew D. Perlman(2) | — | — | — | — | 58,333 | 32,083 | ||||||||||||||||
Andrew Kennedy Lang(2) | 208,333 | 41,667 | 3.72 | July 26, 2022 | — | — | ||||||||||||||||
Andrew Kennedy Lang(2) | 55,555 | 27,778 | 3.18 | February 11, 2023 | — | — | ||||||||||||||||
Andrew Kennedy Lang(1) | — | — | — | — | 54,688 | 30,078 | ||||||||||||||||
Andrew Kennedy Lang(2) | — | — | — | — | 10,417 | 5,729 | ||||||||||||||||
Anastasia Nyrkovskaya(2) | 175,000 | 125,000 | 2.85 | May 6, 2023 | — | — | ||||||||||||||||
Anastasia Nyrkovskaya(2) | 100,000 | 200,000 | 4.10 | February 20, 2024 | — | — | ||||||||||||||||
David L. Cohen, Esq.(2) | 66,667 | 33,333 | 3.72 | July 26, 2022 | — | — | ||||||||||||||||
David L. Cohen, Esq. (2) | 351,666 | 125,000 | 3.44 | August 8, 2022 | — | — | ||||||||||||||||
David L. Cohen, Esq. (2) | 133,333 | 66,667 | 3.18 | February 11, 2023 | — | — | ||||||||||||||||
David L. Cohen, Esq. (2) | 33,333 | 66,667 | 4.10 | February 20, 2024 | — | — | ||||||||||||||||
David L. Cohen, Esq. (1) | — | — | — | — | 21,875 | 12,031 | ||||||||||||||||
David L. Cohen, Esq. (2) | — | — | — | — | 16,667 | 9,167 | ||||||||||||||||
Alexander R. Berger(1)(3) | — | — | — | — | 295,313 | 162,422 | ||||||||||||||||
Alexander R. Berger(2)(3) | — | — | — | — | 58,333 | 32,083 |
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| Stock Awards |
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| | | | Number | | | | | | of shares | | value |
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| | Number | | of securities | | | | | | of units | | of shares |
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| | of securities | | underlying | | | | | | of stock | | of units |
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| | underlying | | unexercised | | | | | | that | | of stock |
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| | unexercised | | options | | Option | | | | have not | | that |
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| | options | | (#) un- | | exercise | | Option expiration | | vested | | have not |
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Name | | (#) exercisable | | exercisable | | price ($) | | date | | (#) | | vested ($) |
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Doug Satzman (1) | | |
| |
| | | | | | | | |
2019 Non-Qualified Stock Option from the 2012 Plan | | 12,500 | | 12,500 | | 12.60 | | February 11, 2029 | | | | | |
2020 Non-Qualified Stock Options rom the 2012 Plan | | 83,334 | | — | | 1.53 | | April 20, 2030 | | | | | |
2021 Non-Qualified Stock Options from the 2020 Plan | | — | | 516,304 | | 1.74 | | January 21, 2031 | | | | | |
2021 Restricted Stock Units (RSUs) from the 2020 Plan | | | | | | | | | | 100,000 | | 202,000 | |
| | | | | | | | | | | | | |
Scott Milford (1) | | |
| |
| | | | | — |
| — | |
2020 Non-Qualified Stock Options from the 2012 Plan | | 58,334 | | — | | 1.53 | | April 20, 2030 | | | | | |
2020 Incentive Stock Options from the 2012 Plan | | 32,106 | | — | | 5.01 | | September 6, 2030 | | | | | |
2020 Non-Qualified Stock Options from the 2020 Plan | | — | | 96,319 | | 2.01 | | October 28, 2030 | | | | | |
2021 Non-Qualified Stock Options from the 2020 Plan | | — | | 380,435 | | 1.74 | | January 21, 2031 | | | | | |
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James A Berry (1): 2020 Non-Qualified Stock Options from the 2020 Plan | | 43,402 |
| 130,209 |
| 1.44 | | December 14, 2030 | | — |
| — | |
(1) |
(2) | ||
Option Exercises and Stock Vested in 2014
The following table shows information regarding exercises of options to purchase our common stock and vesting of stock awards held by each of our NEOs during the fiscal year ended December 31, 2014.
Option Awards | Stock Awards (2) | |||||||||||||||
Name | Number of Shares Acquired on Exercise (#) | Value Realized on Exercise ($) (1) | Number of Shares Acquired on Vesting (#) | Value Realized on Vesting ($) (2) | ||||||||||||
(a) | (b) | (c) | (d) | (e) | ||||||||||||
Andrew D. Perlman | 76,000 | 253,080 | — | — | ||||||||||||
Andrew D. Perlman | 2,167 | 6,046 | — | — | ||||||||||||
Andrew D. Perlman | 121,833 | 321,639 | — | — | ||||||||||||
Andrew D. Perlman | — | — | 58,333 | 122,354 | ||||||||||||
Andrew D. Perlman | — | — | 168,750 | 353,953 | ||||||||||||
Andrew Kennedy Lang | — | — | 31,250 | 65,547 | ||||||||||||
Andrew Kennedy Lang | — | — | 10,417 | 21,849 | ||||||||||||
David L. Cohen, Esq. | 100,000 | 57,000 | — | — | ||||||||||||
David L. Cohen, Esq. | — | — | 12,500 | 26,219 | ||||||||||||
David L. Cohen, Esq. | — | — | 16,667 | 34,958 | ||||||||||||
Alexander R. Berger | — | — | 58,333 | 122,354 | ||||||||||||
Alexander R. Berger | — | — | 168,750 | 353,953 | ||||||||||||
Anastasia Nyrkovskaya | — | — | — | — |
(1) Amounts shown in this column do not necessarily represent actual value realized from the sale of the shares acquired upon exercise of options because in many cases the shares are not sold on exercise but continue to be held by the executive officer exercising the option. The amounts shown represent the difference between the option exercise price and the market price on the date of exercise, which is the amount that would have been realized if the shares had been sold immediately upon exercise.
(2) Shares are related to the vesting of RSU awards which vested evenly on each of March 31, 2014, June 30, 2014, September 30, 2014 and December 31, 2014 and the value realized is calculated by multiplying the number of vested shares by the closing price of our common stock on NASDAQ on the applicable vesting date.
Pension Benefits
We do not have any qualified or non-qualifiednonqualified defined benefit plans.
Nonqualified Deferred Compensation
We do not have any nonqualified defined contribution plans or other deferred compensation plans.
Potential Payments upon Termination or Change-In-Control
The following summarizes the payments and potential payments to each NEOof our named executive officers as of December 31, 20142021 upon termination or change-in-control. The discussion assumes that such event occurred on December 31, 2014,2021, the last business day of our fiscal year, at which time the closing price of our common stock as listed
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on NASDAQNasdaq was $0.55$2.02 per share. For a further discussion of these provisions see the “Narrative Disclosure to Summary Compensation Table and Grants of Plan-Based Awards Table” above.
Douglas Satzman
Andrew D. PerlmanMr. Satzman resigned from the Company on January 19, 2022. Under the terms of the Separation Agreement and Release that he entered into with the Company, Mr. Satzman will receive (i) an amount equal to his current annual base salary ($475,000) as severance, payable over the 12-month period following January 21, 2022 in accordance with the Company’s regular payroll schedule and (ii) if elected by Mr. Satzman, subsidization of COBRA continuation payments under the Company’ group medical insurance plans until the earlier of January 31, 2023, the date he is eligible under another employer’s heath plan or Medicare, or the expiration of the maximum COBRA continuation coverage period for which he eligible under law. Mr. Satzman is entitled to incentive compensation of $168,341 attributable to calendar year 2021 (of which amount $10,000 represents expense reimbursement), as provided in his employment agreement, (ii) that the vesting of all stock options, RSUs and other stock-based awards outstanding held by Mr. Satzman vest immediately after such effective date, and (iii) for a general release in favor of the Company.
Scott R. Milford
In the event Mr. Perlman’sMilford’s employment wasagreement is terminated for (i) Good Reasongood reason by Mr. Perlman,Milford, or (ii) by the Company without Cause on December 31, 2014,cause and Mr. Perlman would have receivedMilford provides the Company with a release of claims, Mr. Milford shall be entitled to receive a cash severance payment in the amount of one yearhundred percent (100%) of his then current base salary and COBRA payments totaling approximately $40,775. In addition, in the event a change-in-control had occurred on December 31, 2014, Mr. Perlman would have received severance in the amount of one year of base salary, or $400,000, and 75% acceleration of certain unvested RSUs amounting to $145,879 as of December 31, 2014. In addition, upon change-in-control, COBRA continuation coverage.
James A. Berry
Mr. Perlman would have beenBerry is not entitled to receive 75% acceleration of certain unvested options which were all out-of-the-money as of December 31, 2014.
Andrew Kennedy Lang
In the event Mr. Lang’s employment agreement was terminated by (i) us without Cause, or (ii) by Mr. Lang with Good Reason on December 31, 2014, Mr. Lang would have received severance in the amount of one year of base salary, or $385,000, and COBRA payments totaling approximately $40,775. Upon change-in-control, Mr. Lang would have been entitled to receive 75% acceleration of certain unvested RSUs amounting to $26,856 as of December 31, 2014. In addition, upon change-in-control, Mr. Lang would have been entitled to receive 75% acceleration of certain unvested options which were all out-of-the-money as of December 31, 2014.
Anastasia Nyrkovskaya
In the event Ms. Nyrkovskaya’s employment was terminated for (i) Good Reason by Ms. Nyrkovskaya, or (ii) by the Company without Cause on December 31, 2014, Ms. Nyrkovskaya would have received severance in the amount of one year of base salary, or $315,000, and COBRA payments totaling approximately $40,775. In addition, upon change-in-control, Ms. Nyrkovskaya would have been entitled to receive 75% acceleration of certain unvested options which were all out-of-the-money as of December 31, 2014.
David L. Cohen, Esq.
In the event Mr. Cohen’s employment was terminated for (i) Good Reason by Mr. Cohen, or (ii) by the Company without Cause on December 31, 2014, Mr. Cohen would have received severance in the amount of one year of base salary, or $315,000, and COBRA payments totaling approximately $40,775. In addition, upon change-in-control, Mr. Cohen would have been entitled to receive 75% acceleration of certain unvested RSUs amounting to $15,898 as of December 31, 2014 and would have been entitled to receive 75% acceleration of certain unvested options which were all out-of-the-money as of December 31, 2014.
Alexander R. Berger
Mr. Berger resigned from the Company on December 19, 2014 and did not receive any payments from the Company in connection with hisupon termination of employment other than the consulting fees in 2015 discussed above. Mr. Berger and the Company also executed a mutual general release of claims that either party has or in the future may have against the other during the period of his employment.
change-in-control.
Director Compensation
The following table sets forth the compensation of persons who served as non-employee members of our Board of Directors during the fiscal year ended December 31, 2014. Directors who are employed by us are not compensated2021. As described below, Mr. Satzman, our former CEO, received certain equity compensation for theirhis service on our Board of Directors.Directors; such compensation is fully reflected in the Summary Compensation Table above and is not reflected below.
Name | Fees Earned or Paid in Cash ($) | Stock Awards ($) (1) | Option Awards ($) (1) | All other compensation ($) | Total ($) | |||||||||||||||
Ashley C. Keller(2) | 35,000 | — | 255,131 | — | 290,131 | |||||||||||||||
Donald E. Stout(3) | 35,000 | — | 255,131 | — | 290,131 | |||||||||||||||
Noel J. Spiegel(4) | 35,000 | — | 255,131 | — | 290,131 | |||||||||||||||
John Engelman(5) | 35,000 | — | 255,131 | — | 290,131 | |||||||||||||||
H. Van Sinclair(6) | 35,000 | — | 255,131 | — | 290,131 |
| | | | | | | | | | |
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| Fees |
| | | | | |
| |
| | Earned or | | | | | | | | |
| | Paid in | | Stock | | Option | | All Other | | |
| | Cash | | Awards | | Awards | | Compensation | | Total |
Name | | ($) | | ($)(1) | | ($)(1) | | ($)(6) | | ($) |
Bruce T. Bernstein(2) (6) |
| 120,000 |
| 881,000 | | 170,922 | | 433,632 |
| 1,605,554 |
Donald E. Stout(3) |
| 56,000 |
| 196,600 | | 87,016 | | |
| 339,615 |
Robert Weinstein(4) | | 76,000 | | 359,600 | | 87,016 | | | | 522,615 |
Michael Lebowitz(5) | | 56,000 | | 359,600 | | 87,016 | | | | 502,615 |
(1) | Amounts represent the aggregate grant date fair value of the restricted stock units granted during the fiscal year computed in accordance with FASB ASC Topic |
(2) | As of December 31, |
(3) | As of December 31, |
(4) | As of December 31, |
(5) | As of December 31, |
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(6) |
We reimburse each member of ourAt various times during 2021, the Board of Directors for reasonable travel and other out-of-pocket expenses in connection with attending meetingsthe Compensation Committee of the Board of Directors.Directors engaged StreeterWyatt Analytics, an independent third-party compensation analyst, to evaluate and make recommendations regarding the compensation paid to our directors.
On February 20, 2014, we grantedIn December 2020, the Board requested and received analysis and evaluation from StreeterWyatt Analytics regarding the Company’s compensation structure as well as to benchmark it against the Company’s peer group. Effective in January 2021, Board approved, upon recommendation of the Compensation Committee the following compensation structure for its non-employee directors for fiscal year 2021:
● | For the Chairman of the Board, total compensation of $275,000, consisting of a 40/60 split of cash and equity: |
o | $110,000 in cash; and |
o | equity awards having a combined value of $165,000, weighted as 40% in RSUs and 60% in non-qualified stock options. |
● | For all other Board members, total compensation of $140,000, consisting of a 40/60 split of cash and equity: |
o | 56,000 in cash; and |
o | equity awards having a combined value of $84,000, weighted 40% in RSUs and 60% in non-qualified stock options. |
● | The following additional cash payments: |
o | $20,000 in cash to the Chairman of the Audit Committee. |
o | $10,000 in cash to the Chairman of the Compensation Committee. |
In January 2021, the Company, its Board and the board of directors of XpresTest, Inc., a Delaware corporation and majority-owned subsidiary of the Company (“XpresTest”), approved the issuance of 60 shares of immediately vested restricted stock under the XpresTest, Inc. 2020 Equity Incentive Plan (the “Subsidiary Plan”) to each of ourMessrs. Bernstein and Satzman, pursuant to a restricted stock award agreement under the Subsidiary Plan. In addition, the restricted stock award agreements each contain an antidilution provision pursuant to which XpresTest agreed to issue such additional shares of XpresTest common stock to each such individual (for no additional consideration) sufficient to maintain share ownership interest for each such individual of and at 6% of the total capital stock of XpresTest on a fully-diluted basis, including all options, warrants, convertible securities, and other rights to acquire capital stock, including shares reserved for equity plans not yet allocated, but in the case of convertible debt, only at the time that such convertible debt converts into capital stock, or at such time that a specific conversion ratio is established pursuant to the operation of such instrument) through and until immediately prior to the sale and issuance of XpresTest’s capital stock in a bona fide equity or convertible note financing which assumes that the enterprise value XpresTest is at or above $100 million.
In February and March 2021, following the conclusion of it previous review and approval of cash and equity compensation for its non-employee directors, 120,000 options atthe Board further requested and received analysis and evaluation from StreeterWyatt Analytics of appropriate director compensation specifically related to the duties, responsibilities and services of Mr. Bernstein beyond the scope of normal Board member services in connection with his role as a non-employee director of XpresTest, especially in light of the significance of the XpresTest business for the Company as a whole commencing in 2020 and going forward in to the future. In March 2021, following such review, the Board determined it was necessary, advisable and appropriate, and in the best interests of the Company and its stockholders, to provide for an exercise priceappropriate amount of $4.10additional compensation to Mr. Bernstein for his XpresTest board services, in addition to the amounts previously approved for other services as director of our Board, and approved the payment to Mr. Bernstein of $120,000 per share, which vested evenly over four quarters, beginning withyear in cash compensation for such XpresTest board services, retroactive to January 1, 2021. The Board concluded that, under the quarter ended March 31, 2014,circumstances and agreedin light of the services performed, such compensation represents “ordinary-course compensation” for Mr. Bernstein’s XpresTest board services as a member of the board of directors of XpresTest, and that such compensation therefore would not preclude a determination that Mr. Bernstein would be independent for, among other things, membership of the Audit Committee of the Company under Rule 10A-3 under the Securities Exchange Act of 1934, and Nasdaq listing rules, as such compensation represents fees for such XpresTest board services.
14
In July 2021, after reviewing the data provided by StreeterWyatt Analytics, the Committee deemed it to pay each director an annual cash retainerbe in the best interest of $35,000 payable quarterly in arrears.
For 2015, we continuethe Company to pay our non-employee directors a cash retainer of $35,000 payable quarterly in arrears. On January 22, 2015, we grantedrecommend that the Board make restricted stock unit grants to each of our non-employee directors 100,000 options at the exercise pricemembers of $0.59 per share that vest evenly over fourthe Board. Based on the Committee’s recommendation, the Board approved the grants of restricted stock unit, vesting in equal quarterly installments of 25% each on the last date of the first, second, third and fourth quarters beginningafter the grant date (commencing on September 30, 2021 and being fully vested on June 30, 2022), subject to the individuals continuous server with the quarter ended March 31, 2015.Company through such dates, of 500,000 shares for Mr. Bernstein (as Chairman of the Board), 200,000 shares to each Messrs. Satzman (as CEO of the Company and a Board member), Weinstein (as the Audit Committee Chairman) and Lebowitz, and 100,000 shares to Mr. Stout.
In January 2022, the Board requested and received analysis and evaluation from StreeterWyatt Analytics regarding the Company’s compensation structure. Based on its review, the Compensation Committee recommended, and the full Board approved, a new director compensation program effective for fiscal year 2022:
● | For the Chairman of the Board: $350,000 per year, consisting of: |
o | $150,000 in cash; and |
o | equity awards having a combined value of $200,000, consisting of (i) a grant of a Non-Qualified Stock Option to purchase such number of shares of Common Stock having a grant date fair value of $120,0000 and (ii) a grant of RSUs of such number of shares having a grant date value of $80,000. |
● | For the other non-employee Directors: $170,000 per year, consisting of: |
o | $70,000 in cash; and |
o | equity awards having a combined value of $100,000, consisting of (i) a grant of a Non-Qualified Stock Option to purchase such number of shares of Common Stock having a grant date fair value of $60,0000 and (ii) a grant of RSUs of such number of shares having a grant date value of $40,000. |
● | The following additional cash payments: |
o | $30,000 in cash to the Chairman of the Audit Committee. |
o | $20,000 in cash to the Chairman of the Compensation Committee. |
o | $20,000 in cash to each member of the Investment Committee. |
We reimburse our directors for reasonable out-of-pocket expenses incurred in connection with attendance and participation in Board and committee meetings (including costs of travel, food and lodging).
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
Equity Compensation Plan Information
The following table provides certain aggregate information, as of December 31, 2014,2021 with respect to all of our equity compensation plans then in effect:
Plan Category | (a)
No. of securities to be issued upon exercise of outstanding options, warrants and rights | (b) Weighted-average exercise price of outstanding options, warrants and rights ($) | (c)
No. of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) | |||||||||
Total equity compensation plans approved by security holders (1),(2) | 9,207,524 | $ | 3.37 | 5,793,420 | ||||||||
Equity compensation plans not approved by security holders (3) | 41,178 | $ | 0.99 | — |
| | | | | | | |
|
| |
| | |
| No. of securities |
| | | | | | | remaining |
| | | | | | | available for |
| | No. of securities | | | | | future issuance |
| | to be issued upon | | Weighted- | | under equity | |
| | exercise of | | average exercise | | compensation | |
| | outstanding | | price of | | plans (excluding | |
| | options, | | outstanding | | securities | |
| | warrants and | | options, warrants | | reflected in | |
Plan Category | | rights | | and rights ($) | | the first column) | |
Total equity compensation plans approved by security holders (1)(2) |
| 3,426,871 | | $ | 3.14 |
| 815,628 |
(1) | These plans consist solely of the |
15
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information with respect to the beneficial ownership of our common stockCommon Stock as of April 17, 201519, 2022 for (a) each stockholder known by us to own beneficially more than 5% of Common Stock, (b) each of our common stock (b) our NEOs,named executive officers, (c) each of our directors and director nominees, and (d) all of our current directors and executive officers as a group. 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 stockCommon Stock that may be acquired by an individual or group within 60 days of April 17, 201519, 2022, pursuant to the exercise of options or warrants andor the vesting of RSUsrestricted stock units, as applicable, to be outstanding for the purpose of computing the percentage ownership of such individual or group. However, such shares of common stock aregroup, but 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 stockCommon Stock shown to be beneficially owned by them based on information provided to us by these stockholders. Percentage of ownership is based on 93,571,04295,321,210 shares of common stock outstanding onCommon Stock as of April 17, 2015.19, 2022.
Name and Address of Beneficial Owner(1) | Amount and Nature of Beneficial Ownership | Percent of Class | ||||||
Five percent or more beneficial owners: | ||||||||
Hudson Bay Master Fund Ltd.(2) 777 Third Avenue New York, NY 10017 | 6,157,248 | 6.2 | % | |||||
BlackRock, Inc.(3) 55 East 52nd Street New York, NY 10022 | 5,407,879 | 5.8 | % | |||||
Directors and named executive officers: | ||||||||
Andrew Kennedy Lang(4) | 7,408,316 | 7.9 | % | |||||
Andrew D. Perlman(5) | 2,670,582 | 2.8 | % | |||||
Alexander R. Berger(6) | 1,843,599 | 2.0 | % | |||||
Donald E. Stout(7) | 1,539,696 | 1.6 | % | |||||
John Engelman(8) | 755,068 | * | ||||||
H. Van Sinclair(9) | 636,663 | * | ||||||
David L. Cohen, Esq.(10) | 768,333 | * | ||||||
Anastasia Nyrkovskaya(11) | 341,000 | * | ||||||
Noel J. Spiegel(12) | 280,000 | * | ||||||
Ashley C. Keller(13) | 230,500 | * | ||||||
All current directors and officers as a group (9 individuals)(14): | 14,630,158 | 14.8 | % |
| | | | |
|
| Number of |
| Percent of |
| | Shares of | | Shares of |
| | Common | | Common |
| | Stock | | Stock |
| | Beneficially | | Beneficially |
Name and Address of Beneficial Owner(1) | | Owned | | Owned |
| | | | |
Five percent or more beneficial owners: | | | | |
| | | | |
Sabby Volatility Warrant Master Fund, Ltd(2) | | 14,383,810 | | 13.7% |
| | | | |
Directors and named executive officers: |
|
|
|
|
| | | | |
Scott Milford(3) | | 197,953 | | * |
James A. Berry(4) | | 241,615 | | * |
Bruce T. Bernstein(5) |
| 909,097 |
| 1.0% |
Donald E. Stout(6) |
| 278,155 |
| * |
Robert Weinstein(7) |
| 222,947 |
| * |
Michael Lebowitz(8) |
| 364,280 |
| * |
Douglas Satzman(9) | | 1,553,503 | | 1.6% |
All current directors and officers as a group (6 individuals)(10): |
| 2,214,047 |
| 3.9% |
* | Less than 1% |
(1) | Unless otherwise indicated, the business address of the individuals is c/o |
(2) | Based on |
(3) | The number of shares of |
(4) | The number of shares of Common Stock beneficially owned includes 198,213 shares of Common Stock and options to purchase 43,402 shares of Common Stock, which are exercisable within 60 days of April 19, 2022. |
(5) | The number of shares of Common Stock beneficially owned includes 729,128 shares of Common Stock and options to purchase 179,969 shares of Common Stock, which are exercisable within 60 days of April 19, 2022. |
(6) | The number of shares of Common Stock beneficially owned includes 159,485 shares of Common Stock and options to purchase 118,670 shares of Common Stock, which are exercisable within 60 days of April 19, 2022. |
(7) | The number of shares of Common Stock beneficially owned includes 106,485 shares of Common Stock and options to purchase 116,462 shares of Common Stock, which are exercisable within 60 days of April 19, 2022. Solely for Mr. Weinstein, the number of shares of |
16
2022, less 45,000 shares subsequently sold on April 20, 2022, pursuant to |
(8) | The number of |
(9) | The number of shares of |
(10) | |
See footnotes (4) |
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.
Related Person Transactions Approval Policy
All related party transactions must be approved by our audit committeeAudit Committee or a majority of our independent directors who do not have an interest in the transaction and who will have access, at our expense, to our independent legal counsel.
Transactions with Related Persons
None.
There were no related party transactions to report during the year ended December 31, 2014.
Director Independence and Committee Qualifications
Our Board of Directors has reviewed the materiality of any relationship that each of our directors has with Vringo,us, either directly or indirectly. Based upon this review, we believe that Messrs. Sinclair, Engelman,Bernstein, Weinstein, Stout, Keller and SpiegelLebowitz qualify as independent directors in accordance with the standards set by NASDAQ,Nasdaq, as well as Rule 10A-3 promulgated under the Securities Exchange Act of 1934, as amended (“the Exchange Act”).Act. Accordingly, our Board of Directors is comprised of a majority of independent directors as required by NASDAQNasdaq rules. TheOur Board of Directors has also determined that each member of the CompensationAudit Committee, the AuditCompensation Committee and the Nominating and Corporate Governance Committee meets the independence requirements applicable to each such committee member prescribed by NASDAQNasdaq and the SEC. TheOur Board of Directors has further determined that Messrs. SpiegelBernstein and SinclairWeinstein are “audit committee financial experts” as defined in the rules of the SEC.
ITEM 14. PRINCIPAL ACCOUNTINGACCOUNTANT FEES AND SERVICES
KPMGCohnReznick LLP (“CohnReznick”) was selected by our Audit Committee as our independent registered public accounting firm for the fiscal year ended December 31, 2014.2019. This selection was ratified by our stockholders.stockholders at the 2019 annual meeting held on October 2, 2019. On May 4, 2020, we dismissed CohnReznick and approved the engagement of Friedman LLP (“Friedman”) as our independent registered public accounting firm for the fiscal year ended December 31, 2020. This selection was ratified by our stockholders at the 2020 annual meeting held on October 28, 2020. In deciding to select KPMG LLP,CohnReznick and Friedman, the Audit Committee carefully considered the qualifications of KPMG LLP,CohnReznick and Friedman , including itstheir reputation for integrity, quality, and competence in the fields of accounting and auditing. Further, the Audit Committee reviewed auditor independence issues and existing commercial relationships with KPMG LLP.CohnReznick and Friedman. The Audit Committee concluded that KPMG LLP’s independence of CohnReznick and Friedman was not impaired for the fiscal yearyears ended December 31, 2014. Somekh Chaikin, a member firm of KPMG International (“KPMG Israel”), served as our independent registered public accounting firm for the fiscal year ended December 31, 2013.
2021, and 2020. For the fiscal years ended December 31, 20142021, and 2013,2020, we incurred the following fees for the services of KPMG LLPCohnReznick and KPMG Israel.Friedman:
17
2014 | 2013 | |||||||
Audit fees:(1) | $ | 412,500 | 187,000 | |||||
Tax fees:(2) | 25,000 | 8,000 | ||||||
Total | $ | 437,500 | $ | 195,000 |
| | | | | | |
|
| 2021 |
| 2020 | ||
| | | | | | |
Friedman: | | | | | | |
| | | | | | |
Audit fees(1) | | $ | 268,957 | | $ | 148,243 |
Audit-related fees(2) | | | 107,492 | | | 45,780 |
| | | | | | |
| | | | | | |
| | | | | | |
CohnReznick: | | | | | | |
| | | | | | |
Audit fees(1) | | | - | | | 170,000 |
Audit-related fees(2) | | | - | | | 14,500 |
| | | | | | |
Total | | $ | 376,449 | | $ | 378,523 |
(1) |
(2) |
Pre-Approval of Audit and Non-Audit Services
Consistent with SEC policies and guidelines regarding audit independence, theour Audit Committee is responsible for the pre-approval of all audit and permissible non-audit services provided by our independent registered public accounting firm on a case-by-case basis. Our Audit Committee has established a policy regarding approval of all audit and permissible non-audit services provided by our independent registered public accounting firm. Our Audit Committee pre-approves these services by category and service. Our Audit Committee has pre-approved all of the services provided by our independent registered public accounting firms in 20142021 and 2013.2020.
PART IV
ITEM 15: | EXHIBITS, FINANCIAL STATEMENT SCHEDULES |
The financial statements, financial statement schedules and exhibits listed in the exhibit indexPart IV, Item 15 of the Original Filing and the exhibits listed in the exhibit index of this Form 10-K/Abelow are filed with, or incorporated by reference in, this Form 10-K/A.
Exhibits Index
Exhibit |
| Description |
---|---|---|
2.1 | ||
2.2 | ||
18
Exhibit | Description | |
---|---|---|
2.3 | ||
3.1 | | |
| | |
3.2 | ||
3.3 | ||
3.4 | | |
| | |
4.1 | ||
4.2 | ||
| | |
4.3 | ||
4.4 | ||
4.5 | ||
4.6 | ||
4.7 | ||
4.8 | ||
4.9 | ||
19
Exhibit | Description | |
---|---|---|
4.10 | ||
| | |
4.11 | ||
4.12 | ||
4.13 | ||
4.14 | ||
4.15 | ||
4.16 | ||
4.17 | ||
4.18 | ||
4.19 | ||
4.20 | ||
4.21 | ||
4.22 | ||
4.23 | ||
| | |
4.24 | | |
10.1† | ||
20
Exhibit | Description | |
---|---|---|
10.2† | ||
10.3† | ||
10.4† | ||
10.5 | ||
| | |
10.6† | ||
10.19 | ||
10.20 | ||
10.21 | ||
10.22 | ||
10.25 | ||
10.26 | ||
10.27 | ||
10.29 | ||
21
Exhibit | Description | |
---|---|---|
10.30 | ||
10.31 | ||
| | |
10.32 | ||
10.33 | ||
10.34 | | |
| | |
10.35† | | |
| | |
10.36† | | |
| | |
10.37† | ||
| | |
10.38 | | |
| | |
10.39 | | |
| | |
10.40 | | |
| | |
10.41 | | |
| | |
10.42† | | |
| | |
10.43† | | |
| | |
10.44 | |
22
Exhibit | Description | |
---|---|---|
10.45† | | |
| | |
10.46† | | |
| | |
10.48†*** | | |
| | |
21*** | ||
| | |
23.1*** | | |
31.1* | ||
| | |
31.2* | | |
| | |
32*** | | |
| | |
101.INS | | Inline XBRL Instance 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 | |
| | |
104 | | Cover Page Interactive Data File (embedded within the Inline XBRL documents) |
* | Filed herewith. |
** | Furnished herewith. |
*** | Previously filed. |
† | Management contract or compensatory plan or arrangement. |
23
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Act of 1934, the registrant has duly caused this Amendment No. 1 to Annual Report on Form 10-K/A to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York of New York on the 30th2nd day of April, 2015.May, 2022.
XPRESSPA GROUP, INC. | |||
By: | /s/ Scott R Milford | ||
Name: | Scott R Milford | ||
Title: | Chief Executive Officer |
EXHIBIT LISTPursuant to the requirements of Securities Exchange Act of 1934, this Amendment No. 2 to Annual Report on Form 10-K has been signed below by the following persons on behalf of the registrant and in the capacities indicated below and on the dates indicated.
| | | | |
|
| Date | ||
| | | | |
/s/ Scott R Milford | | Chief Executive Officer and Director (Principal | | May 2, 2022 |
Scott R Milford | | Executive Officer) | | |
| | | | |
/s/ James A Berry | | Chief Financial Officer (Principal Financial | | May 2, 2022 |
James A Berry | | Officer and Principal Accounting Officer) | | |
| | | | |
/s/ Bruce T. Bernstein | | Director, Chairman of Board of Directors | | May 2, 2022 |
Bruce T. Bernstein | | | | |
| | | | |
/s/ Robert Weinstein | | Director | | May 2, 2022 |
Robert Weinstein | | | | |
| | | | |
/s/ Donald E. Stout | | Director | | May 2, 2022 |
Donald E. Stout | | | | |
| | | | |
/s/ Michael Lebowitz | | Director | | May 2, 2022 |
Michael Lebowitz | | | | |
24