UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
the Securities Exchange Act of 1934
Filed by the Registrantxþ
Filed by a Party other than the Registrant¨
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¨ | Preliminary Proxy Statement |
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Definitive Proxy Statement |
¨ | Definitive Additional Materials |
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CONCURRENT COMPUTER CORPORATIONCCUR HOLDINGS, INC.
(Name of Registrant as Specified in itsIn Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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(2) | Aggregate number of securities to which transaction applies: | |
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 | |
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CCUR HOLDINGS, INC.
NOTICE OF 2019 ANNUAL MEETING OF STOCKHOLDERS
AND
PROXY STATEMENT
CCUR HOLDINGS, INC.
4375 River Green Parkway, Suite 210
Duluth, Georgia 30096
(770) 305-6434
NOTICE OF 20172019 ANNUAL MEETING OF STOCKHOLDERS
AND
PROXY STATEMENT
RETURN OF PROXY
Please follow the instructions for voting provided to you and vote your shares even if you plan to attend the meeting. If you attend the meeting and vote in person, the proxy will not be used. The immediate return of your proxy will be of great assistance in preparing for the meeting and is therefore urgently requested.
THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
NOTICE OF 2017 ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD WEDNESDAY, OCTOBER 25, 2017
To our Stockholders:
You are cordially invited to attend the 20172019 Annual Meeting of Stockholders (the “Annual Meeting”) of Concurrent Computer CorporationCCUR Holdings, Inc. (“Concurrent” or the “Company”CCUR”) to be held at Concurrent’s9:00 a.m., Eastern Time, on Thursday, October 24, 2019 at CCUR’s corporate headquarters located at 4375 River Green Parkway, Suite 100,210, Duluth, Georgia 30096, at 9:00 a.m., ET, on Wednesday, October 25, 2017.30096. The meetingAnnual Meeting is being held to consider and act upon the following matters:
1) | To elect |
2) | To ratify the appointment of |
3) | To |
4) | To vote, on an advisory basis, on the frequency of future advisory votes to approve |
5) | To transact such other business as may properly come before the |
The Board of Directors recommends that you vote “FOR” Items 1, 2 and 3, and vote in favor of a frequency of every “1 YEAR” for Item 4. The proxy holders will use their discretion to vote on other matters that may properly arise at the Annual Meeting or any adjournment or postponement thereof.
The Board of Directors established August 31, 201727, 2019 as the record date for the determination of stockholders entitled to receive notice of and vote at the meeting.Annual Meeting. Only holdersstockholders of record of CCUR’s common stock atas of the close of business on that date will be entitled to vote.vote at the Annual Meeting. A list of stockholders as of the record date will be available for inspection by stockholders at Concurrent’sCCUR’s corporate office located at 4375 River Green Parkway, Suite 100,210, Duluth, Georgia 30096 during regular business hours in the ten-day10-day period prior to the meetingAnnual Meeting and on the day of the meeting. During the meeting,Annual Meeting, it will be available for inspection at the meeting location.
Your vote is important. To be sure your shares are voted at the meeting,Annual Meeting, even if you plan to attend the meeting in person, please follow the instructions provided to you and vote your shares today. This will not prevent you from voting your shares in person if you are able to attend. Your cooperation is appreciated since a majority of the outstanding shares of Concurrent’sCCUR’s common stock entitled to vote must be represented, either in person or by proxy, to constitute a quorum.
We look forward to meeting with you on October 25, 2017.24, 2019.
By Order of the Board of Directors, | |
| |
Wayne Barr, Jr. | |
Duluth, Georgia
October 2, 2017September 9, 2019
Important Notice regarding the Availability of Proxy Materials for the 2017 Annual Meeting of Stockholders to be held on October 25, 2017: The Proxy Statement and Annual Report to stockholders are available at www.proxyvote.com.
Important Notice Regarding the Availability of Proxy Materials
The Notice of 2019 Annual Meeting of Stockholders and Proxy Statement and the Annual Report on Form 10-K for the fiscal year ended June 30, 2019 are available atwww.proxyvote.com. |
CONCURRENT COMPUTER CORPORATION
Table of Contents
i
CCUR HOLDINGS, INC.
4375 River Green Parkway, Suite 100210
Duluth, Georgia 30096
(770) 305-6434
PROXY STATEMENT
This proxy statement and proxy card are first being sent
The Board of Directors of CCUR Holdings, Inc. (herein referred to stockholders onby terms such as “we,” “us,” “our,” “CCUR” or about October 2, 2017, and are furnishedthe “Company”) is providing these materials to you in connection with the solicitation of proxies to be voted at the 20172019 Annual Meeting of Stockholders (the “Annual Meeting”). The Annual Meeting will be held at Concurrent’s9:00 a.m., Eastern Time, on Thursday, October 24, 2019 at CCUR’s corporate headquarters located at 4375 River Green Parkway, Suite 100,210, Duluth, Georgia 30096 at 9:00 a.m., ET, on Wednesday, October 25, 2017.30096. Your proxy is solicited by Concurrent’sCCUR’s Board of Directors (the “Board”) on behalf of Concurrent.CCUR.
ABOUT THE ANNUAL MEETINGGENERAL INFORMATION
Why am I receiving this proxy statement and proxy card?these materials?
You are receiving athese materials because the Board is soliciting your proxy statement and proxy card because, as ofto vote your shares at the close of business on August 31, 2017, you owned shares of Concurrent common stock.Annual Meeting. This proxy statementProxy Statement describes in detail issues on which we would like you, our stockholder, to vote. It also gives you information on these issues so that you can make an informed decision.
WhenWhat is a proxy?
The Board is asking for your proxy. This means you execute your proxy, you appoint Derek J. Elder, Warren Sutherland and Heather Asher each as your representatives atauthorize persons selected by the Annual Meeting. Mr. Elder, Mr. Sutherland and/or Ms. Asher willCompany to vote your shares at the meeting asAnnual Meeting in the way that you have instructed them oninstruct. All shares represented by valid proxies received and not revoked before the proxy card. This way, your sharesAnnual Meeting will be voted whetherin accordance with the stockholder’s specific voting instructions.
Why did I receive a one-page notice regarding Internet availability of proxy materials instead of a full set of proxy materials?
The Securities and Exchange Commission rules and regulations (the “SEC rules”) allow companies to choose the method for delivery of proxy materials to stockholders. For most stockholders, the Company has elected to mail a notice regarding the availability of proxy materials on the Internet (the “Notice of Internet Availability”), rather than sending a full set of these materials in the mail. The Notice of Internet Availability, or not you attenda full set of the proxy materials (including the proxy statement and form of proxy), as applicable, was sent to stockholders beginning on or about September 9, 2019, and the proxy materials were posted on the Investors page of CCUR’s corporate website,www.ccurholdings.com, under the ‘Company’ tab then ‘Investors’ then ‘Annual Reports,’ and on the website referenced in the Notice of Internet Availability on the same day. Utilizing this method of proxy delivery expedites receipt of proxy materials by the Company’s stockholders and lowers the cost of the Annual Meeting. Even ifIf you planwould like to attend the meeting, it isreceive a good idea to complete, sign, date and return your proxy card in advancepaper or e-mail copy of the meetingproxy materials, you should follow the instructions in case your plans change.
If an issue comes upthe Notice of Internet Availability for vote at the meeting that is not on the proxy card, Mr. Elder, Mr. Sutherland and/or Ms. Asher will vote your shares, under your proxy, in accordance with their best judgment.requesting a copy.
What am I voting on?is included in these materials?
You are being asked to vote on: (1)These materials include:
· | the Notice of 2019 Annual Meeting of Stockholders and Proxy Statement; |
· | the Annual Report on Form 10-K for the fiscal year ended June 30, 2019 (“Fiscal Year 2019”), which contains the Company’s audited consolidated financial statements; and |
· | the proxy card or voting instruction form for the Annual Meeting. |
If you received a paper copy of these materials by mail, these materials also include the election of five directors, (2) the ratification of the appointment of Deloitte & Touche LLP as Concurrent’s independent registered public accountantsproxy card or voting instruction form for the fiscal year ending June 30, 2018 (“Fiscal Year 2018”), (3) an advisory vote to approveAnnual Meeting.
What items will be voted on at the compensation of Concurrent’s named executive officers and (4) approval of an amendment to Concurrent’s Restated Certificate of Incorporation designed to extend protection of Concurrent’s tax benefits.Annual Meeting?
No cumulative voting rightsThere are authorized and dissenters’ rightsfour proposals scheduled to be voted on at the Annual Meeting:
· | the election of the three directors nominated by the Board to serve until the 2020 Annual Meeting of Stockholders; |
· | the ratification of the appointment of Marcum LLP as CCUR’s independent registered public accounting firm for the fiscal year ending June 30, 2020 (“Fiscal Year 2020”); |
· | the approval, on an advisory basis, of CCUR’s named executive officer compensation in Fiscal Year 2019; and |
· | the vote, on an advisory basis, on the frequency of future advisory votes to approve CCUR’s named executive officer compensation. |
The Board is not aware of any other matters to be brought before the Annual Meeting. If other matters are not applicable to these matters.properly raised at the Annual Meeting, the proxy holders may vote any shares represented by proxy in their discretion.
What are the Board’s voting recommendations?
The Board recommends that you vote your shares:
· | “FOR” the election of each of the three directors nominated by the Board to serve until the 2020 Annual Meeting of Stockholders; |
· | “FOR” the ratification of the appointment of Marcum LLP as CCUR’s independent registered public accounting firm for Fiscal Year 2020; |
· | “FOR”the approval, on an advisory basis, of CCUR’s named executive officer compensation in Fiscal Year 2019; and |
· | “1 YEAR” forthe advisory vote on the frequency of future advisory votes to approve CCUR’s named executive officer compensation. |
Who can attend the Annual Meeting?
Admission to the Annual Meeting is limited to:
· | stockholders of record as of the close of business on August 27, 2019; |
· | holders of valid proxies for the Annual Meeting; and |
· | invited guests. |
Admission to the Annual Meeting will be on a first-come, first-served basis. Each stockholder may be asked to present valid photo identification, such as a driver’s license or passport, and proof of stock ownership as of the record date for admittance.
When is the record date and who is entitled to vote?
Stockholders as of the close of business onThe Board set August 31, 2017 are entitled to vote. This is referred to27, 2019 as the record date. EachAs of the record date, 8,923,657 shares of common stock, $0.01 par value per share, of CCUR were issued and outstanding. Stockholders are entitled to one vote per share of common stock outstanding on the record date on any matter properly presented at the Annual Meeting.
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What is entitleda stockholder of record?
A stockholder of record or registered stockholder is a stockholder whose ownership of CCUR’s common stock is reflected directly on the books and records of the Company’s transfer agent, American Stock Transfer & Trust Company, LLC. If you hold common stock through an account with a bank, broker or similar organization, you are considered the beneficial owner of shares held in street name and are not a stockholder of record. For shares held in street name, the stockholder of record is your bank, broker or similar organization. CCUR only has access to one vote.ownership records for the registered shares. If you are not a stockholder of record and you wish to attend the Annual Meeting, CCUR will require additional documentation to evidence your stock ownership as of the record date, such as a copy of your brokerage account statement, a letter from the stockholder of record (e.g., your bank, broker or other nominee) or a copy of your voting instruction form or Notice of Internet Availability.
How do I vote?
You may vote by any of the following methods:
· | In person. Stockholders of record and beneficial owners of shares held in street name may vote in person at the Annual Meeting. If you hold shares in street name, you must also obtain a legal proxy from the stockholder of record (e.g., your bank, broker or other nominee) to vote in person at the Annual Meeting. Please note that if you request a legal proxy, any previously submitted proxy will be revoked and your shares will not be voted unless you attend the Annual Meeting and vote in person or appoint another proxy to vote on your behalf. |
· | By telephone or via the Internet. Stockholders of record may vote by proxy, by telephone or via the Internet, by following the instructions included in the proxy card or Notice of Internet Availability provided or the instructions you receive by e-mail. If you are a beneficial owner of shares held in street name, your ability to vote by telephone or via the Internet depends on the voting procedures of the stockholder of record (e.g., your bank, broker or other nominee). Please follow the instructions included in the voting instruction form or Notice of Internet Availability provided to you by the stockholder of record. |
· | By mail. Stockholders of record and beneficial owners of shares held in street name may vote by proxy by completing, signing, dating and returning the proxy card or voting instruction form provided. |
How can I revoke my proxy or change my vote?
Stockholders of record. You may revoke your proxy or change your vote at any time prior to the taking of the vote at the Annual Meeting by (i) submitting a written notice of revocation to the Company’s Corporate Secretary at CCUR Holdings, Inc., 4375 River Green Parkway, Suite 210, Duluth, Georgia 30096; (ii) delivering a proxy bearing a later date using any of the voting methods described in the immediately preceding Q&A, including by telephone or via the Internet. Depending on how your shares are held, you may be able to vote viaInternet, and until the Internet. If this option is available to you, you will have received an insert with this proxy statement explainingapplicable deadline for each method specified in the procedure.
You may vote via telephone. Depending on how your shares are held, you may be able to vote via telephone. If this option is available to you, you will have received an insert with this proxy statement explaining the procedure.
You may vote by mail. You do this by signing youraccompanying proxy card or Notice of Internet Availability; or (iii) attending the Annual Meeting and mailing itvoting in person. Attendance at the prepaid and addressed envelope.
You mayAnnual Meeting will not cause your previously granted proxy to be revoked unless you specifically make that request or vote in person at the meeting. Written ballotsFor all methods of voting, the last vote cast will be passed outsupersede all previous votes.
Beneficial owners of shares held in street name. You may revoke or change your voting instructions by following the specific instructions provided to anyone who wants to vote atyou by the meeting. If you holdstockholder of record (e.g., your shares through abank, broker bank or other nominee,nominee), or, if you must requesthave obtained a legal proxy from your stockbroker in order to vote at the meeting. Please note that if you request a legal proxy, any previously submitted proxy will be revoked and your shares will not be voted unless you attendstockholder of record, by attending the Annual Meeting and votevoting in person or appoint another proxy to vote on your behalf.person.
Are voting procedures differentWhat happens if I hold myvote by proxy and do not give specific voting instructions?
Stockholders of record. If you are a stockholder of record and you vote by proxy, by telephone, via the Internet or by returning a properly executed and dated proxy card by mail, without giving specific voting instructions, then the proxy holders will vote your shares in the name ofmanner recommended by the Board on all matters presented in this Proxy Statement and as the proxy holders may determine in their discretion for any other matters properly presented for a broker, bank or other nominee?vote at the Annual Meeting.
Beneficial owners of shares held in street name. If you are a beneficial owner of shares held in street name and do not provide the organization that holds your shares are held in “street name” through a broker, bank or other nominee, please refer towith specific voting instructions, under the rules of various national and regional securities exchanges, the organization that holds your shares may generally vote on “routine” matters but cannot vote on “non-routine” matters. If the organization that holds your shares does not receive instructions they provide regardingfrom you on how to vote your shares oron a “non-routine” matter, the organization that holds your shares will inform the inspector of election that it does not have the authority to revokevote on that matter with respect to your shares. This is referred to as a “broker non-vote.”
The election of directors, the advisory vote to approve CCUR’s named executive officer compensation in Fiscal Year 2019 and the advisory vote on the frequency of future advisory votes to approve the Company’s named executive officer compensation are “non-routine” matters. Consequently, without your voting instructions. If you holdinstructions, the organization that holds your shares incannot vote your shares on these proposals. The ratification of the nameappointment of Marcum LLP as CCUR’s independent registered public accounting firm for Fiscal Year 2020, is considered a broker, bank or other nominee, the availability of telephone and Internet voting depends on their voting processes. Street name holders may vote in person only if they have a legal proxy as described above.“routine” matter.
What is the voting requirement to approve each of the proposals?
· | Election of Directors. Directors shall be elected by a plurality of the votes cast. As a result, the three director nominees receiving the highest number of affirmative votes will be elected as directors. There is no cumulative voting with respect to the election of directors. |
· | Ratification of the Appointment of Independent Registered Public Accounting Firm. Ratification of the appointment of Marcum LLP as CCUR’s independent registered public accounting firm for Fiscal Year 2020 requires the affirmative vote of a majority of the votes cast affirmatively or negatively. |
· | Advisory Vote to Approve Named Executive Officer Compensation. Advisory approval of CCUR’s named executive officer compensation in Fiscal Year 2019 requires the affirmative vote of a majority of the votes cast affirmatively or negatively. |
· | Advisory Vote to Determine the Frequency of Voting on the Named Executive Officer Compensation. There is no threshold vote that must be obtained for this proposal to pass. The frequency (every one, two or three years) that receives the highest number of votes cast at the Annual Meeting will be considered the frequency approved by stockholders. |
· | Other Items. Approval of any other matters requires the affirmative vote of a majority of the votes cast affirmatively or negatively. |
What is the quorum for the Annual Meeting? How manyare withhold votes, do you need to hold the meeting?abstentions and broker non-votes treated?
As of August 31, 2017, there were 9,843,703 shares of Concurrent’s common stock outstanding and each share is entitled to one vote. A majority of Concurrent’s outstanding shares as of the record date must be present at the meeting eitherThe presence, in person or by proxy, in orderof the holders of a majority of the outstanding shares entitled to holdvote is necessary for the meeting and conduct business. This is called a quorum.
transaction of business at the Annual Meeting. Your shares will beare counted as being present if you vote in person at the Annual Meeting, by telephone, via the Internet or by returning a properly executed and dated proxy card or voting instruction form by mail. Abstentions and broker non-votes are counted as present at the meeting if you:
What does it mean if I receive more than one proxy card?
It means that you have multiple accounts at the transfer agent and/or with a broker, bank or other nominee. Please vote all proxies to ensure that all your shares are represented at the meeting. In the future, you may wish to consolidate as many of your transfer agent accounts or accounts with brokers, banks or other nominees as possible under the same name and address for better customer service.
What if I change my mind after I return my proxy?
You may revoke your proxy and change your vote at any time before the polls close at the meeting. You may do this by:
How may I vote for the nomineespurpose of determining a quorum for election of director?the Annual Meeting.
With respect to the election of nominees for director, you may:
How manydirectors, only “for” and “withhold” votes must the nominees for election of director receive to be elected?
Directors are elected by a plurality vote. As a result, the five nominees receiving the highest number of affirmative votes will be elected as directors. This number is called a plurality.
What happens if a nominee is unable to stand for re-election?
The Board may, by resolution, provide for a lesser number of directors or designate a substitute nominee. In the latter event, shares represented by proxies may be voted for a substitute nominee.
How may I votecast. Withhold votes and broker non-votes are not considered votes cast for the ratification of the appointment of the independent registered public accountants?
With respect to the proposal to ratify the appointment of Deloitte & Touche LLP as Concurrent’s independent registered public accountants for Fiscal Year 2018, you may:
How many votes must the ratification of the appointment of the independent registered public accountants receive to pass?
The ratification of the appointment of the independent registered public accountants must receive the affirmative vote of a majority of the votes cast affirmatively or negatively to pass.
How may I vote on the advisory vote to approve the compensation of Concurrent’s named executive officers?
With respect to the advisory vote to approve the compensation of Concurrent’s named executive officers, you may:
How many votes must the advisory vote to approve the compensation of Concurrent’s named executive officers receive to pass?
The proposal to approve the compensation of Concurrent’s named executive officers must receive the affirmative vote of a majority of the votes cast affirmatively or negatively to pass.
How may I vote for the approval of the amendment to the Company’s Restated Certificate of Incorporation?
With respect to the proposal to amend the Company’s Restated Certificate of Incorporation, you may:
How many votes must the approval of the amendment to the Company’s Restated Certificate of Incorporation receive to pass?
The approval of the amendment to the Company’s Restated Certificate of Incorporation must receive the affirmative vote of a majority of the outstanding shares of common stock to pass.
What happens if I sign and return my proxy card but do not provide voting instructions?
If you return a signed card but do not provide voting instructions, your shares will be voted FOR the five named director nominees, FOR the ratification of the appointment of the independent registered public accountants, FOR approval of the compensation of the Company’s named executive officers, and FOR approval of the amendment to the Company’s Restated Certificate of Incorporation. In addition, your proxy will be voted at the discretion of Mr. Elder, Mr. Sutherland and/or Ms. Asher with respect to any other business that properly comes before the meeting.
If you mark your voting instructions on the proxy card, your shares will be voted as you instruct.
What if I abstain from voting?
Abstentions with respect to a proposal are counted for purposes of establishing a quorum. If a quorum is present, WITHHOLD AUTHORITY votes have no effect on the outcome of a vote on the election of directors. However, abstentions will have the effect of a vote AGAINST the approval of the amendment to the Company’s Restated Certificate of Incorporation. Abstentions will have no impact on the outcome of any of the two other proposals, as they are not counted as votes cast affirmatively or negatively.
Will my shares be voted if I do not vote my proxy?
If your shares are held in “street name” through a bank, broker or other nominee, your brokerage firm may vote your shares under certain circumstances if you do not provide voting instructions. These circumstances include certain “routine” matters, such as the ratification of the appointment of our independent registered public accountants. Therefore, if you do not vote your proxy, your brokerage firm may either vote your shares on routine matters or leave your shares unvoted. When a brokerage firm votes its customers’ unvoted shares on routine matters without receiving voting instructions, these shares are counted for purposes of establishing a quorum to conduct business at the meeting and in determining the number of shares voted FOR or AGAINST the routine matter.
A brokerage firm cannot vote customers’ shares on non-routine matters, which includes the election of directors, approval of the amendment to the Company’s Restated Certificate of Incorporation, and approval of the compensation of the Company’s named executive officers. We expect that brokerage firms will be able to vote customers’ shares for the ratification of the appointment of the independent public accountants. If your brokerage firm has not received voting instructions on a non-routine matter, these shares will be considered “broker non-votes” to the extent that the brokerage firm submits a proxy. Broker non-votes will be counted for purposes of establishing a quorum to conduct business at the meeting, will count AGAINST approval of the amendment to the Company’s Restated Certification of Incorporationforegoing purpose and will have no effect on the outcome of the proposal.
With respect to the ratification of the appointment of Marcum LLP as CCUR’s independent registered public accounting firm for Fiscal Year 2020 and the approval, on an advisory basis, of CCUR’s named executive officer compensation in Fiscal Year 2019, you may vote “for” or “against” the proposals, or you may “abstain” from voting on the proposals. Abstentions and broker non-votes are not considered votes cast for the foregoing purposes and will have no effect on the outcome of the proposals. As discussed above, because the ratification of the appointment of Marcum LLP as CCUR’s independent registered public accounting firm for Fiscal Year 2020, is considered a “routine” matter, we do not expect any broker non-votes with respect to this proposal.
With respect to the advisory vote on the frequency of future advisory votes to approve CCUR’s named executive officer compensation, you may vote for anya frequency of future advisory “say-on-pay” votes of every “one year,” “two years” or “three years,” or you may “abstain” from voting on this proposal. Abstentions and broker non-votes are not considered votes cast for the foregoing purpose and will have no effect on the vote for this proposal.
Who are the proxy holders and how will they vote?
The persons named as attorneys-in-fact in the proxies, Warren Sutherland and Heather Asher, were selected by the Board and are officers of the Company. If you are a stockholder of record and you return a properly executed and dated proxy card but do not provide specific voting instructions, your shares will be voted on the proposals as follows:
· | “FOR” the election of each of the three directors nominated by the Board to serve until the 2020 Annual Meeting of Stockholders; |
· | “FOR” the ratification of the appointment of Marcum LLP as CCUR’s independent registered public accounting firm for Fiscal Year 2020; |
· | “FOR”the approval, on an advisory basis, of CCUR’s named executive officer compensation in Fiscal Year 2019; and |
· | “1 YEAR” for the advisory vote on the frequency of future advisory votes to approve CCUR’s named executive officer compensation. |
If other proposals to be considered atmatters properly come before the Annual Meeting.Meeting and you do not provide specific voting instructions, your shares will be voted on such matters in the discretion of the proxy holders.
Where docan I find the voting results of the meeting?Annual Meeting?
We will announce preliminary or final voting results at the Annual Meeting and will publish the final results in a Current Report on Form 8-K filed within four business days after the meeting. The report will be filed with the Securities and Exchange Commission (“SEC”(the “SEC”), and you may obtain a copy by contacting within four business days of the Corporate Secretary at (678) 258-4000, through our website atwww.concurrent.com orcompletion of the SEC’s EDGAR system at www.sec.gov.meeting.
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How do I obtain a copy of the 2017 Annual Report to Stockholders and the 2017 Annual Report on Form 10-K?SECURITY OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS
Concurrent’s Annual Report to Stockholders forThe table below provides information about the year ended June 30, 2017, which includes our Form 10-K for the year ended June 30, 2017, accompanies this proxy statement. In addition, these documents can be found on the Investors pagebeneficial ownership of Concurrent’s corporate website (www.concurrent.com) under the ‘Company’ tab.
At the written request of any common stockholder who ownsCCUR’s common stock as of August 27, 2019, by each person known by the close of business on the record date, we will provide, without charge, a copy of our 2017 Annual Report on Form 10-K, including the financial statements and financial statement schedules, as filed with the SEC, except exhibits thereto. If requested by eligible stockholders, we will provide copiesCompany to beneficially own more than 5% of the exhibitsoutstanding shares of the Company’s common stock as well as by each director, director nominee and named executive officer and by all directors and executive officers as a group. In computing the number of shares beneficially owned by a person and the ownership percentage of that person, shares deemed outstanding include shares of CCUR’s common stock subject to stock options held by that person that are currently exercisable or exercisable within 60 days of August 27, 2019. However, these shares are not deemed outstanding for a reasonable fee. Requests for copiesthe purposes of our Annual Reportcomputing the ownership percentage of any other person. The ownership percentage is based on Form 10-K should be mailed8,923,657 shares of CCUR’s common stock outstanding as of August 27, 2019. Except as otherwise indicated in the footnotes below, each of the persons named in the table has sole voting and investment power with respect to the Corporate Secretary atsecurities indicated as beneficially owned by such person, subject to community property laws where applicable. Unless otherwise indicated in the footnotes below, the address for each of the beneficial owners is c/o CCUR Holdings, Inc., 4375 River Green Parkway, Suite 100,210, Duluth, Georgia 30096.
Name | Number of Shares and Nature of Beneficial Ownership | Ownership Percentage | ||||||
Principal Stockholders: | ||||||||
JDS1, LLC | 3,586,269 | (1) | 40.2 | % | ||||
Dimensional Fund Advisors LP | 610,949 | (2) | 6.8 | % | ||||
Directors, Director Nominees and Named Executive Officers: | ||||||||
Wayne Barr, Jr. | 65,000 | (3) | * | |||||
David Nicol | 15,000 | * | ||||||
Steven G. Singer | 40,000 | * | ||||||
Warren Sutherland | 63,000 | * | ||||||
Directors and executive officers as a group (4 persons) | 214,000 | 2.5 | % |
* | Less than 1%. |
(1) | This information is based on a Schedule 13D/A filed with the SEC on February 21, 2019 by JDS1, LLC, whose address is 2200 Fletcher Avenue, Suite 501, Fort Lee, NJ 07024. |
(2) | This information is based on a Schedule 13G/A filed with the SEC on February 8, 2019 by Dimensional Fund Advisors LP (“Dimensional”), whose address is Building One, 6300 Bee Cave Road, Austin, Texas 78746. The Schedule 13G/A reports that Dimensional has sole voting power over 597,142 shares, shared voting power over no shares, and sole investment power over all of the shares shown. Dimensional furnishes investment advice to four investment companies registered under the Investment Company Act of 1940 and serves as investment manager or sub-advisor to certain other commingled funds, group trusts and separate accounts (such investment companies, trusts and accounts, collectively referred to as the “Funds”). In certain cases, subsidiaries of Dimensional may act as an adviser or sub-adviser to certain Funds. In its role as investment adviser, sub-adviser and/or manager, Dimensional or its subsidiaries may possess voting and/or investment power over the securities of the Company owned by the Funds and may be deemed to be the beneficial owner of these shares. However, all securities reported on the Schedule 13G/A are owned by the Funds, and Dimensional and its subsidiaries disclaim beneficial ownership of all of the shares shown. |
(3) | Includes 5,000 shares that Mr. Barr has the right to purchase pursuant to stock options that vested on February 16, 2019. In connection with his appointment as Interim Chief Executive Officer and President, Mr. Barr was granted the right to purchase 15,000 shares pursuant to stock options, which right vests and becomes exercisable in equal installments on the first, second and third anniversary of the February 16, 2018 grant date. |
6
(Item 1 of Notice)
In accordance with our AmendedThe Board currently consists of three members and Restated Bylaws (the “Bylaws”), the Board has fixed the number ofdetermined to nominate those three members for election as directors at five members. The following nominees are standing for re-election to the Board at the meeting:Annual Meeting: Wayne Barr, Jr., Derek J. Elder, Robert M. Pons,David Nicol and Steven G. Singer, and Dilip Singh. Directors will be elected to hold office until the 2018 Annual Meeting of Stockholders or until their successors have been duly elected and qualified.
On July 14, 2017, Concurrent filed a Form 8-K announcing the resignation of its three longest-tenured directors: Steve G. Nussrallah (then Chairman of the Board), Charles Blackmon and Larry L. Enterline (together the “Resigning Directors”). Upon receipt of the resignation letters of the Resigning Directors, theSinger. The Board, by resolution in accordance with our Bylaws, reducedAmended and Restated By-laws, has fixed the number of directors to four members.
On July 31, 2017, Concurrent filed a Form 8-K announcingthree members as of the additionAnnual Meeting. If elected, each nominee will serve until his term expires at the 2020 Annual Meeting of a fifth seat on the BoardStockholders or until his successor is duly elected and the appointment of Steven G. Singer to fill such vacant seat.
Except for the foregoing, there are no arrangements or understandings between any nominee and any other person pursuant to which he was or is to be selected as a director or nominee. Nonequalified. All of the nominees are currently serving as directors and were elected to the Board at the 2018 Annual Meeting of Stockholders. Each nominee has a family relationshipagreed to be named in this Proxy Statement and to serve if elected.
Although the Company knows of no reason why any of the nominees would not be able to serve, if any nominee is unavailable for election, the proxy holders intend to vote your shares for any substitute nominee proposed by the Board.
The Board determines the independence of its members based on the standards specified by The NASDAQ Stock Market (“NASDAQ”).1 The Board has reviewed the relationships between CCUR and each director to determine compliance with the NASDAQ independence standards. In recommending to the Board that it determine each director is independent, the Nominating Committee considered whether there were any other nomineefacts, circumstances or directortransactions that might impair a director’s independence. No other facts, circumstances or transactions were material to either the Company (or its subsidiaries) or the director. The Nominating Committee also considered that the Company’s subsidiary LM Capital Solutions, LLC, in the ordinary course of business, connects syndicate participants with available capital with funders that have established merchant cash advance facilities and are searching for capital to meet merchant demands, including syndicate participants that may be affiliated with family members or affiliates of directors. The Board determined that in any executive officersuch transaction, the transaction (i) was not material to the Company or the other companies involved, (ii) did not involve a material interest of Concurrent or any of our directors, (iii) was in the ordinary course of business for the companies involved and (iv) were on terms and conditions available to similarly situated participants. Therefore, the Board determined they did not impair such director’s independence. Based on its subsidiaries. Thereview, the Board has determined that alleach of Messrs. Nicol and Singer is independent and Dilip Singh was independent until his departure from the nominees areBoard on November 8, 2018. Mr. Barr was determined not to be independent within the meaning of the Nasdaq listing standards other than Mr. Elder, who servesbased on his position as Concurrent’s President and Chief Executive Officer (“CEO”).and President of the Company.
The Board unanimously recommends athat you vote “FOR” the fiveelection of each of the three nominees for Director.director named in this Proxy Statement.Unless otherwise specified, proxies will be voted“FOR” the election of each of the three nominees for director named in this Proxy Statement.
Nominees for Election of Director
Information on each of the nominees for the Board, including each nominee’s principal occupationoccupations and business experienceemployment for at least the last five years, the names of other publicly held companies for which he serves as a director or has served as a director in at least the last five years, and the experience, qualifications, attributes and skills considered among the most important by our Nominating Committee and the Board in determining that the nominee should serve as a director, is set forth below.
Wayne Barr, Jr. Age 5355 and a director since August 2016. Mr. Barr isserved as Executive Chairman of the Board and Interim Chief Executive Officer and President of the Company from February 2018 through his election as Chief Executive Officer and President, effective March 1, 2019. Prior to his election as Interim Chief Executive Officer and President, Mr. Barr had served as Chairman of the Board’s Audit Committee, the Audit Committee Financial Expert and a member of the Compensation and Nominating committees. Since January 2013,Board since July 2017. Mr. Barr has beenwas Managing Director of Alliance Group of NC, LLC, a full servicefull-service real estate firm in North Carolina. He isCarolina, from May 2012 to September 2018. Since February 2007, he has served as the principal of Oakleaf Consulting Group LLC, a management consulting firm focusing on technology and telecommunications companies, which he founded in 2001. Mr. Barr also co-founded and was President from 2003 to 2008 of Capital & Technology Advisors, LLC a management consulting and restructuring firm. Mr. Barr has been a director of Aviat Networks, Inc. since November 2016 and serves on its audit committee. Mr. Barr has also been a director of(i) HC2 Holdings, Inc. (NYSE: HCHC) since 2014, where he has served as a member of the audit committee since March 2019 and previously served, from January 2014 through June 2016, as (a) chairman of the audit committee overseeing the preparation and review of its financial statements and other public company filings and served on(b) a member of the nominating committee until June 2016.and (ii) Alaska Communications Systems Group, Inc. (NASDAQ: ALSK) since May 2018 and serves on its compensation committee. He has previously served on the board of directors of Anacomp, Evident Technologies, Inc., Globix Corporation, IoSat Holdings Limited, Leap Wireless International, NEON Communications and NEON Communications.Aviat Networks, Inc.
We believe Mr. Barr’s wide range of experience serving as an executive and director, including as a director of other publicly-tradedpublicly traded companies, and experience in advising on and overseeing complex accounting and financial issues qualify him to serve as a director of our Board.
Derek J. Elder. Age 46 and a director since November 2014. Since November 2014, Mr. Elder has been Concurrent’s President and CEO. Prior to joining Concurrent, Mr. Elder served as Senior Vice President and General Manager of the DOCSIS & Multiservice Gateway business at ARRIS Group, Inc. (“ARRIS”) since April 2013. He also held a number of other leadership positions at ARRIS in sales, product management and marketing during his ten-year tenure at ARRIS, including serving as Senior Vice President & General Manager, Touchstone Broadband CPE Division from March 2011 to April 2013, Senior Vice President, Product Management & Marketing from May 2008 to May 2011 and Senior Vice President, North American Sales prior thereto. Prior to ARRIS, Mr. Elder was a technology and business leader at Tropic Networks, Cisco Systems and Narad Networks, Inc.
We believe Mr. Elder’s day-to-day leadership as our CEO, extensive experience in the telecommunications industry and unique understanding of our operations, opportunities and challenges qualify him to serve as a directormember of ourthe Board.
1While the Company’s stock ceased trading on the NASDAQ Global Market and began trading on the OTCQB Venture Market on March 27, 2018, the Board continues to use the NASDAQ independence standards to assess director independence as a part of its corporate governance program.
Robert M. Pons.David Nicol.Age 6174 and a director since February 2018. Mr. Nicol is a seasoned board director and advisor for technology-based businesses. He has been a director of Evolving Systems, Inc. (NASDAQ:EVOL) since March 2004 and Nanoveu Limited (ASX:NVU) since July 2012.2018 and also serves as a director for two private companies. At Evolving Systems, Inc. Mr. PonsNicol has served on the (i) audit committee since March 2004 and as the committee chairman since January 2011 and (ii) compensation committee since March 2004 and as its committee chairman since November 2005. Mr. Nicol is Chairman of the Board’s Compensation Committee and aan active member of the AuditNational Association of Corporate Directors and Nominating committees.Financial Executives International. Since November 2011,2015, he has been on the faculty in the Finance Department at the Bloch School of Management at the University of Missouri – Kansas City. From February 2012 through July 2015, Mr. Pons has served asNicol was President & CEOand Chief Operations Officer of hisStrongwatch, Inc., a security innovation company Spartan Advisors, Inc.that was subsequently acquired. Prior to that, he was a consultant to several companies, each subsequently acquired by listed companies. From May 2016 to December 2016,January 2006 through January 2009, Mr. Pons served asNicol was Executive Vice President of PTGi-ICS, a wholly owned subsidiary of HC2 Holdings,and Chief Financial Officer for Solutionary, Inc. (formerly PTGi Holdings, formerly Primus Telecommunications). From May 2014 until May 2016 he served as Executive President of Business Development of HC2 Holdings, Inc, a diversified holding company, with operating subsidiaries primarily in the United States and the United Kingdom. From April 2011 to March 2014, he was Chairman of the board of directors of Live Microsystems, Inc. (formerly Live Wire Mobile, Inc.), a digital content solutionmanaged IT security services provider, for mobile carriers, handset manufacturers and media companies. From January 2008 to January 2011, he was Senior Vice President, Capital Markets, at TMNG Global, a global consulting firm to technology, media, communications and financial services companies.since acquired by NTT Security. Prior to this,2006, Mr. Pons served in a number ofNicol held numerous senior executive positions focused on operations, strategy, product management roles inand business development at communication and technology service companies, including Uphonia (formerly SmartServ Online, Inc.), a wireless applications development companywhich included Fortune 500 companies as well as smaller earlier stage and FreedomPay, a cashless retail payment system vendor. Mr. Pons currently serves on the board of directors of Inseego Corp. (formerly Novatel Wireless) (a member of the compensation committee). He has previously served on the board of directors of Arbinet, MRV Communications, Inc. (Vice Chairman and a member of the audit committee) Proxim Wireless, Network-1 Security Systems, DragonWave, Inc. and HC2 Holdings, Inc.growth companies.
We believe that Mr. Pons’ broad operational executive management and boardNicol’s experience in technologyadvising and overseeing complex accounting and financial issues and broad experience advising a diverse group of companies as a director and success in strategic activities with various companiesexecutive qualify him to serve as a directormember of ourthe Board.
Steven G. Singer. Age 5658 and a director since July 2017. Mr. Singer currently serves as a consultant for Remus Holdings, Inc., a closely held investment company, a position he has held since April 2016. From 2000 to 2016, Mr. Singer served as the Chairman and CEOChief Executive Officer of American Banknote Corporation, a public company through 2007 and provider of secure financial products and solutions.solutions and a public company through 2007. Prior to that, Mr. Singer was Executive Vice President and Chief Operating Officer of Remus Holdings, Inc., a closely-held investment company, a position he held from 1994 to 2000. Mr. Singer has served on numerous public and private company boards, including ABNote do Brazil (a publicly-tradedpublicly traded subsidiary of American Banknote Corporation now operating as Valid SA), CooperVision, Inc., Anacomp, Inc., Motient Corporation (now operating as TerreStar Corporation) and, Globix Corporation. Through approximately 2007, Mr. Singer also served on the boards ofCorporation, TVMAX Holdings, Inc. and Galaxy Cable, Inc. (now operating as Galaxy Cablevision). In addition, Mr. Singer served as Chairman of the board of directors of Motient Corporation and Globix Corporation.
We believe that Mr. Singer’s extensive experience as a director and executive in thea diverse range of industries, including secure transactions, payment solutions, telecommunications, technology and diversified manufacturing sectors, qualify him to serve as a directormember of ourthe Board.
Dilip Singh. Age 69 and a director since July 2012. Mr. Singh is Chairman of the Nominating Committee and a member of the Audit and Compensation committees. Mr. Singh currently serves as Executive Chairman and Founder of Matellio LLC, a global software engineering services company. From December 2013 until March 2016, Mr. Singh was a general partner of Value Generation Capital Fund. Mr. Singh was the interim Chief Executive Officer and President of InfuSystem Holdings, Inc., a healthcare services company, from April 2012 to April 2013. From July 2010 to December 2011, he was the interim Chief Executive Officer of MRV Communications, Inc., a network equipment provider and systems integration company. From December 2008 to May 2009, he was Chief Executive Officer of Telia-Sonera N-Cell, an Asian mobile operator. From 2004 to 2008, Mr. Singh was President and Chief Executive Officer of Telenity, Inc., a software company providing convergence applications, service delivery platforms and other value added services. Prior to this, he served in several roles at ADC Telecommunications, Inc., NewNet, IntelliNet Technologies, Inc., MC Venture Partners, Sprint Corporation and Alcatel-Lucent. Mr. Singh has previously served as Chairman of the board of directors of On-Track Innovations Ltd., and on the board of directors of ALCO Stores, Inc., MRV Communications, Inc. and InfuSystems Holdings, Inc.
We believe that Mr. Singh’s 50 years of operational executive management and board experience with global telecom carriers, network equipment providers, healthcare services, software and systems integration services, and medical and venture capital companies qualify him to serve as a director of our Board.
CORPORATE GOVERNANCE AND COMMITTEES OF THE BOARD
ConcurrentCCUR is organizedincorporated under the laws of the State of Delaware and is governed by the Board. As permitted under Delaware law and Concurrent’sCCUR’s Restated Certificate of Incorporation and Bylaws,Amended and Restated By-laws, the Board has established and delegated certain authority and responsibility to threefour standing committees: the Audit Committee, the Compensation Committee, the Nominating Committee and Nominatingthe Asset Management Committee. The Board annually reviews the membership of and the authority and responsibility delegated to each committee.
Concurrent’sThe Board is committed to sound business practices, transparency in financial reporting and effective corporate governance. The Board annually reviews Concurrent’sCCUR’s corporate governance policies and practices in light of the requirements of applicable law and the listing standards of Nasdaq. Concurrent’sOTC Market.2 The Board meets regularly and no less than twice a year in executive sessions which are comprised of the independent directors. ConcurrentCCUR has adopted Corporate Governance Guidelines (“Guidelines”), a Business Code of Ethics and Compliance Policies for all employees, a Code of Ethics for Senior Executive and Financial Officers, and an Accounting/Auditing Complaint Policy. Concurrent’sCCUR’s Guidelines, codes of ethics and its Accounting/Auditing Complaint Policy are available on the Investors page of Concurrent’sCCUR’s corporate website, (www.concurrent.com)www.ccurholdings.com, under the ‘Company’ tab in the Corporate Governance section.then ‘Investors’ then ‘Corporate Governance.’ Any amendments to, or waivers of,from, our Code of Ethics for Senior Executive and Financial Officers (to the extent required to be disclosed pursuant to Form 8-K) will be disclosed on our corporate website,www.ccurholdings.com, promptly following the date of such amendment or waiver. By referring to the Company’s corporate website,www.ccurholdings.com, or any portion thereof, including the Investors page of the Company’s corporate website, the Company does not incorporate its corporate website or its contents into this Proxy Statement.
Board Leadership Structure and the Board’s Role in Risk Oversight
Mr.Wayne Barr, an independent director, has served asJr. currently holds the positions of Executive Chairman of ourthe Board, since July 2017Chief Executive Officer and as a director since August 2016.President of the Company. Our Guidelines provide that the Board retains discretion to elect a non-independent director to serve as Chairman will beof the Board. The Company’s Guidelines further provide that if the Board determines that a non-independent director may serve as Chairman of the Board, the Board may designate an independent director under applicable legal and regulatory rules. The Chairman is elected by and from the membersto chair executive sessions of the Board.independent directors. The Board does not currently have a lead independent director.
We believe that combining the role of Chairman of the Board and Chief Executive Officer (i) enhances alignment between the Board and management in strategic planning and execution as well as operational matters and (ii) streamlines Board process in order to conserve time for the consideration of the important matters the Board needs to address. We believe that it is beneficial for CCUR to have a non-executivecombined Chairman who is responsible for leadingand Chief Executive Officer role following the Board. We also believe our Presidentsale of the Company’s prior business divisions and CEO should be principally responsible for running the Company.establishment of its real estate and merchant cash advance operating segments, given the Company’s desire to consolidate and increase efficiency while the Asset Management Committee evaluates additional opportunities to maximize the value of the Company’s sale proceeds and other assets and build upon the Company’s continuing operations. Under our Guidelines and Amended and Restated By-laws, our Bylaws, our non-executiveExecutive Chairman:
· | provides leadership to the Board to ensure that the Board functions in an independent, cohesive fashion; |
· | presides at all Board meetings |
· | sees that all orders, resolutions and policies adopted or established by the Board are carried into effect; |
· | consults with the Nominating Committee |
· | prepares and circulates an agenda for each Board |
Our
2As announced in a Current Report on Form 8-K filed with the SEC on March 27, 2018, CCUR’s stock listing was transferred to the OTCQB Venture Market as of March 27, 2018.
The Board currently has fourthree members, consisting of two independent membersdirectors and only one non-independent member, our CEO.director (our Executive Chairman, Chief Executive Officer and President). We have threefour standing board committees (Audit,Board committees: the Audit Committee, the Compensation Committee, the Nominating Committee and Nominating)the Asset Management Committee (collectively, the “Standing Committees”). All of these committees3 Except for the Asset Management Committee, the Standing Committees are comprised solely of independent directors, each with a different independent director serving as chair of the committee.directors. We believe that the number of independent, experienced directors that make up ourthe Board along with the independentleadership and oversight of the Board by our non-executiveExecutive Chairman benefits ourthe Company and ourits stockholders.
Under the Guidelines, ourthe Board provides oversight of Concurrent’sCCUR’s risk management processes. Pursuant to the Guidelines and the charter of our Audit Committee, the Audit Committee is primarily responsible for reviewing policies with respect to risk assessment and risk management and meeting periodically with management to review Concurrent’sCCUR’s major financial risk exposures and steps management has taken to monitor and control such exposures. Each of ourthe Board committees also considers the risks within its area of responsibilities. For example, in accordance with its charter, our Compensation Committee reviews Concurrent’sCCUR’s incentive compensation arrangements to confirm that incentive pay does not encourage unnecessary risk takingrisk-taking and periodically considers the relationship between risk management and incentive compensation. We believe that the leadership structure of ourthe Board supports its effective oversight of Concurrent’sCCUR’s risk management.management, particularly given that the Board’s standing committees that hold oversight of the Company’s financial and accounting functions and compensation structure are comprised of independent directors.
Directors
The responsibility of the directors is to provide direction and oversight and to exercise their business judgment to act in what they reasonably believe to be in the best interests of ConcurrentCCUR and its stockholders. In discharging that obligation consistent with their fiduciary duties, to stockholders, directors are entitled to rely on the honesty and integrity of Concurrent’sCCUR’s executives and its outside advisors and auditors. Directors are expected to attend Board meetings and meetings of committees on which they serve, and to spend the time needed and meet as frequently as necessary to properly discharge their responsibilities with due care. Directors are expected to review in advance any information distributed before meetings.
Board Meeting Attendance
During the fiscal year ended June 30, 2017 (“Fiscal Year 2017”), there were 24 meetings2019, the Board held 10 meetings. Each incumbent director attended all of the Board. All the directors who served during the year attended more than 75% of the aggregate of (1) the total number of meetings of the Board and (2) the total number of meetings held by all standing committees of the Board on which eachthe director served.served during Fiscal Year 2019.
The Board has adopted a policy that each director is encouraged to attend Concurrent’sCCUR’s regularly scheduled annual meeting of stockholders. AllThree of the four directors servingin office at the time, including all of Concurrent’s 2016the Company’s current directors, attended the 2018 Annual Meeting of Stockholders attended the meeting. We expect that all fiveStockholders.
3In anticipation of the nomineesclosing of the Content Delivery sale in Fiscal Year 2018, the Board established the Investment Committee, a special sub-committee of the Board, for electionthe purpose of considering alternative means to deploy our sale proceeds and other corporate assets to maximize long-term value for our stockholders. Such alternatives included, but were not limited to, evaluating opportunities to acquire all or a controlling interest in one or more operating businesses or assets intended to provide attractive returns for our stockholders and result in appreciation in value, a more liquid trading market for our stock, and an enhanced ability for us to utilize our existing U.S. federal net operating loss carryforwards. During Fiscal Year 2019, the Board dissolved the Investment Committee and established the Asset Management Committee as Director will attenda Standing Committee to continue evaluation of strategic opportunities on a long-term basis. The Asset Management Committee, among other things, continues the Annual Meeting.work of the former Investment Committee by providing oversight of any potential acquisitive activities that the Company may consider from time to time, and the Company’s ongoing operations and assets and the operations and assets of any subsequently acquired businesses.
Committees of the Board
The membership of each of the Board’s standing committees as of July 1, 2017,Audit, Compensation and Nominating Committees is indicated in the table below:following table:
Director | Audit Committee | Compensation Committee | Committee | Committee | ||||
Wayne Barr, | ||||||||
However, per (1) the resignations of the Resigning Members and dissolution of the Executive Committee (dissolved by Board resolution in accordance with our Bylaws) effective as of July 14, 2017 and (2) Mr. Singer’s appointment to the Board effective as of July 28, 2017, the Board’s standing committee composition as of July 28, 2017 is as indicated in the table below:
David Nicol | Chair | |||||||
Steven G. Singer | Member | Chair | Chair | Chair | ||||
Self-Evaluation
Each year the Board and the Audit, Compensation and AuditAsset Management Committees complete an internal self-evaluation. The self-evaluations are discussed within each committee and then by the Board as a whole, including any areas for improvement.
Stockholder Communications with the Board
We have adopted a formal process for stockholder communications with members of the Board. The process requires ConcurrentCCUR to maintain on its corporate website information explaining that stockholders who wish to communicate directly with the Board may do so by writing the Board as a group or the non-management directors as a group via Concurrent’sCCUR’s Corporate Secretary at its corporate headquarters. The policy further provides that the Corporate Secretary shall review all written correspondence received from stockholders and forward such correspondence periodically to the directors. A copy of the procedures for stockholder communication with the Board may be found on the Investors page of Concurrent’sCCUR’s corporate website, (www.concurrent.com)www.ccurholdings.com, under the ‘Company’ tab in the Corporate Governance section.then ‘Investors’ then ‘Corporate Governance.’ In addition, employees, customers, stockholders, vendors or partners may also make anonymous reports under Concurrent’sCCUR’s Accounting/Auditing Complaint Policy regarding any financial irregularities, fraud, errors or false statements.
Standing Board Committees
Audit Committee.All of the members of the Audit Committee have been determined by the Board to be independent within the meaning of applicablethe SEC rules and Nasdaqthe NASDAQ listing standards. Additionally, the Board has determined that Mr. BarrNicol qualifies as an “audit committee financial expert” pursuant to the SEC rules.rules and the qualifications set forth herein under the “Nominees for Director” heading of this Item 1. The principal responsibilities of the Audit Committee are:
· | to review |
· | to pre-approve all audit and non-audit services to be provided by |
· | to review matters relating to the examination of | |
· | to appoint |
There were eightnine meetings of the Audit Committee during Fiscal Year 2017.2019. The Audit Committee operates under a written Audit Committee charter adopted by the Board and reviewed annually. The charter may be found on the Investors page of Concurrent’s corporate website (www.concurrent.com), under the ‘Company’ tab in the Corporate Governance section.
Nominating Committee. All of the members of the Nominating Committee have been determined by the Boardpursuant to be independent within the meaning of the Nasdaq listing standards. The principal responsibilities of the committee are:
The Nominating Committee is responsible for assessing and considering director and candidate qualification factors.
In order to fill any positions resulting from vacancies or expansion, the Nominating Committee is responsible for seeking and recommending candidates to the entire Board for membership. The entire Board is responsible for nominating members for election to the Board and for filling vacancies on the Board that may occur between annual meetings of stockholders. Stockholders may propose nominees for consideration by the Nominating Committee by submitting recommendations to: Corporate Secretary, Concurrent Computer Corporation, 4375 River Green Parkway, Suite 100, Duluth, Georgia 30096 in accordance with the Concurrent Computer Corporation Stockholder Director Nominee Recommendation Policy, which is described below and may be found on the Investors page of Concurrent’s corporate website (www.concurrent.com), under the ‘Company’ tab in the Corporate Governance section.
There were two meetings of the Nominating Committee during Fiscal Year 2017. The Nominating Committee operates under a written charter adopted by the Board and reviewed annually. A copy of the charter may be found on the Investors page of Concurrent’sCCUR’s corporate website, (www.concurrent.com)www.ccurholdings.com, under the ‘Company’ tab in the Corporate Governance section.then ‘Investors’ then ‘Corporate Governance.’
Compensation Committee.All of the members of the Compensation Committee have been determined by the Board to be independent within the meaning of the NasdaqSEC rules and the NASDAQ listing standards. The principal responsibilities of the committeeCompensation Committee are:
· | to review and approve/recommend compensation (salary, bonus and long- and short-term incentives) of the |
· | to oversee the administration of |
· | to annually review and approve the annual incentive bonus structure; and |
· | to oversee |
The CEOChief Executive Officer reports to the Compensation Committee regularly on the results of the evaluations of ourany named executive officers (“NEOs”) other than the CEO.Chief Executive Officer. In addition to the CEO’sChief Executive Officer’s involvement in conducting evaluations and making compensation recommendations for any other NEO,named executive officer, our management team and outside consulting firms play an active role in updating the Compensation Committee on the trends and challenges of hiring, retaining and competing for talent. The management team and outside consulting firms periodically suggest alternative forms of compensation or compensation strategies to assist the Compensation Committee in setting compensation packages that will enable us to attract and retain key talent. For further information regarding the executive compensation practices, see the “Compensation Discussion and Analysis” section of this Proxy Statement.
The Compensation Committee also reviews director compensation practices, in relation to peer companies and outside advice, and recommends to the Board, as appropriate, revisions to our director compensation program. The Board believes that director compensation should be commensurate with the work required and responsibilities undertaken and should serve to align directors’ interests with the long-term interests of stockholders. For further information regarding the compensation practices, see the “Compensation Discussion and Analysis.”Analysis” section of this Proxy Statement.
The Compensation Committee periodically retains firms for analysis of our executive and director compensation and comparisons to overall compensation offered by peer companies in our industry and other comparable organizations, as well as for other project-related work. The Compensation Committee has the sole authority to engage or terminate outside consulting firms, including sole authority to approve fees and other retention terms. In the fiscal year ended June 30, 2014 (“Fiscal Year 2014”), the Compensation Committee retained Pearl Meyer & Partners, LLC (“Pearl Meyer”) as its independent compensation consultant for executive and director compensation analysis, and re-engaged them again in the fiscal year ended June 30, 2016 (“Fiscal Year 2016”) for CEOChief Executive Officer compensation analysis and in early the fiscal year ended June 30, 2018 (“Fiscal Year 20182018”) for director compensation analysis. The nature and scope of the engagements is more fully discussed in the “Compensation Discussion and Analysis.”Analysis” section of this Proxy Statement. The compensation consultant reports to the Chairman of the Compensation Committee and acts at the Chairman’s direction when engaged on projects for the Committee. Pearl Meyer & Partners does not provide any services to ConcurrentCCUR other than those relating to executive and non-employee director compensation, as directed by the Compensation Committee.
In connection with its engagement of compensation consultant Pearl Meyer & Partners in Fiscal Years 2014, 2016 and 2018, the Compensation Committee considered the independence of Pearl Meyer & Partners and whether the engagement of the compensation consultant raised any potential conflicts of interest. In evaluating the independence of and potential conflicts of interest relating to the consultant,Pearl Meyer, the Compensation Committee requested and received a letter from the consultant addressing the following factors: (1)(i) other services provided to us by the consultant; (2)(ii) fees paid by us as a percentage of the consulting firm'sfirm’s total revenue; (3)(iii) policies or procedures maintained by the consulting firm that are designed to prevent a conflict of interest; (4)(iv) any business or personal relationships between the individual consultants involved in the engagement and a member of the Compensation Committee; (5)(v) any ConcurrentCCUR stock owned by the individual consultants involved in the engagement; and (6)(vi) any business or personal relationships between our executive officers and the consulting firm or the individual consultants involved in the engagement. The Compensation Committeecommittee discussed these considerations and concluded that the compensation consultantPearl Meyer was independent, and theits engagement of the consultant did not raise any conflict of interest.
There were tenfive meetings of the Compensation Committee during Fiscal Year 2017.2019. The Compensation Committee operates underpursuant to a written Compensation Committee charter adopted by the Board and reviewed annually. TheA copy of the charter may be found on the Investors page of Concurrent’sCCUR’s corporate website, (www.concurrent.com)www.ccurholdings.com, under the ‘Company’ tab then ‘Investors’ then ‘Corporate Governance.’
Nominating Committee. All of the members of the Nominating Committee have been determined by the Board to be independent within the meaning of the SEC rules and the NASDAQ listing standards. The principal responsibilities of the Nominating Committee are:
· | to select potential director candidates and recommend selected candidates to the full Board; |
· | to develop and recommend to the Board a self-evaluation process for the Board and its committees and oversee such evaluation process; and |
· | to make recommendations to the Board concerning the structure and membership of the Board committees. |
The Nominating Committee is responsible for assessing and considering director and candidate qualification factors.
In order to fill any positions resulting from vacancies or newly created directorships, the Nominating Committee is responsible for evaluating and recommending candidates to the entire Board for membership. The entire Board is responsible for nominating members for election to the Board and for filling vacancies on the Board that may occur between annual meetings of stockholders. Stockholders may propose nominees for consideration by the Nominating Committee by submitting recommendations to: CCUR Holdings, Inc., 4375 River Green Parkway, Suite 210, Duluth, Georgia 30096, Attention: Corporate Secretary in accordance with the Corporate Governance section.CCUR Holdings, Inc. Stockholder Director Nominee Recommendation Policy, which is described below and a copy of which may be found on the Investors page of CCUR’s corporate website,www.ccurholdings.com, under the ‘Company’ tab then ‘Investors’ then ‘Corporate Governance.’
There was one meeting of the Nominating Committee during Fiscal Year 2019. The Nominating Committee operates pursuant to a written charter adopted by the Board and reviewed annually. A copy of the charter may be found on the Investors page of CCUR’s corporate website,www.ccurholdings.com, under the ‘Company’ tab then ‘Investors’ then ‘Corporate Governance.’
Asset Management Committee. The principal responsibilities of the Asset Management Committee are:
· | to actively manage the Company’s use and allocation of cash and cash equivalents in accordance with the Company’s investment policy, as approved by the Board; |
· | to oversee all individuals or entities responsible for providing services to the Company in connection with the Company’s investment policy; |
· | to actively manage the allocation of assets between the Company and its affiliates, which may incorporate analysis of relevant tax considerations, applicable regulations and any other items deemed necessary and appropriate by the committee; and |
· | to review and evaluate opportunities to maximize the value of the Company’s assets, including through acquisition of one or more operating businesses and other strategic opportunities. |
There were four meetings of the Asset Management Committee during Fiscal Year 2019. The Asset Management Committee operates pursuant to a written charter adopted by the Board and reviewed annually. A copy of the charter may be found on the Investors page of CCUR’s corporate website,www.ccurholdings.com, under the ‘Company’ tab then ‘Investors’ then ‘Corporate Governance.’
Stockholder Recommendations of Director Nominations
The Nominating Committee will consider all properly submitted stockholder recommendations when evaluating director nominees for recommendation to the Board. However, acceptance of a recommendation for consideration does not imply that the Nominating Committee will nominate the recommended candidate. In order to submit a nominee recommendation, stockholders must follow the following procedures:
1. | Submit recommendations in writing to the Corporate Secretary at |
2. | Include in the submission the following information concerning the recommended individual for the committee to consider: |
· | age; |
· | business address and residence address of such person; |
· | five-year employment history, including employer names and business descriptions; |
· |
· | ability of the individual to read and comprehend financial statements; |
· | the information required by Item 404 of SEC Regulation S-K (certain relationships and related transactions); |
· | board memberships (if any); |
· | any other information relating to such person that is required to be disclosed in solicitations or proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and |
· | a statement supporting the nominating stockholder’s view that the recommended individual possesses the minimum qualifications prescribed by the Nominating Committee for nominees. |
3. | Include with the submission a written consent of the individual to be interviewed by the Nominating Committee and to stand for election if nominated and to serve if elected. |
4. | Include in the submission the following information concerning the stockholder (or group of stockholders) recommending the individual for the Nominating Committee to consider: |
· |
· |
5. | The nominating recommendation must state the relationship between the proposed nominee and the recommending stockholder and any agreements or understandings between the nominating stockholder and the nominee regarding the nomination. |
All such director nomination recommendations for an annual meeting of stockholders must be delivered, as provided above, to Concurrent’sCCUR’s corporate headquarters not less than 90 days nor more than 120 days prior to the first anniversary of the prior year’s annual meeting;October 24, 2020; provided, however, that in the event the annual meeting is not scheduled to be held within 30 days before or after such anniversary date,October 24, 2020, recommendations to be timely must be so received no later than the close of business on the later of (1)(i) the tenth10th day following the date of the public disclosure of the date of the annual meeting or (2)(ii) 90 days prior to the date of the annual meeting.
Stockholders may also directly nominate candidates for election to Concurrent’sthe Board in accordance with our Bylaws.Amended and Restated By-laws. Any stockholder wishing to make a nomination directly must follow the requirements set forth in Article V of Concurrent’s Bylaws,CCUR’s Amended and Restated By-laws, as described under “Other Matters - 2018– Stockholder Proposals.Proposals for the 2020 Annual Meeting of Stockholders.”
Procedures for Identifying and Evaluating Candidates for the Board
The Nominating Committee’s process for selecting nominees begins with an evaluation of the performance of incumbent directors and a determination of whether the Board or its committees have specific unfilled needs. The Nominating Committee then considers nominees identified by the Nominating Committee, other directors, senior management of ConcurrentCCUR and stockholders. The Nominating Committee may obtain, as deemed necessary or appropriate, advice and assistance from legal, executive search, accounting or other advisors.
In identifying and recommending nominees to the Board, the Nominating Committee will consider certain skills and attributes of prospective candidates, including, but not limited to:
· | the highest personal and professional ethics, integrity and values; |
· | business or professional knowledge and experience that will contribute to the effectiveness of the Board and the committees of the Board; |
· | sound judgment; |
· | diversity of skills, experience, age, gender, race, ethnicity and background; |
· | lack of interests that materially conflict with those of the Company’s stockholders; and |
· | demonstrated professional achievement. |
Neither the Nominating Committee nor the Board has a specific policy with regard to the consideration of diversity in identifying director nominees. However, the Board believes that men and women of different ages, races and ethnic and cultural backgrounds can contribute different and useful perspectives and can work effectively together to further the Company’s objectives, and, as noted above, a candidate’s diversity is one of the criteria that the Nominating Committee considers in identifying and recommending nominees to the Board.
Further, the candidate must be willing to:
· | consent to stand for election if nominated and to serve if elected; and |
· | devote sufficient time to carrying out his or her duties and responsibilities effectively (our Guidelines prohibit a director from serving on more than five other public company boards). |
In addition, the Nominating Committee will consider the following:
· | at least a majority of the Board must be independent as determined by the Board under the |
· | at least one member of the Board should have the qualifications and skills necessary to be considered an “audit committee financial expert,” as defined by the |
· | at least |
All potential candidates are interviewed by the Nominating Committee and may be interviewed by other members of the Board and senior management.
For each of the nominees to the Board, the biographies included in this proxy statementProxy Statement highlight the experiences and qualifications that were among the most important to the Nominating Committee in concluding that the nominee should serve as a director.
Compensation of Directors
Current Non-Employee Director Compensation
Annual Retainer: Non-employee directors currently receive a $20,000 annual retainer payable in quarterly installments. A non-employee who becomes a director after the annual meeting of stockholders receives a pro-rata portion of the annual retainer, payable at the time of becoming a non-employee director. In addition, non-employee directors receive a $2,000 fee per Board and standing committee meeting they attend in person or $500 per meeting they attend by telephone. However, this amount may not exceed $2,000 per day for attendance at Board and standing committee meetings regardless of the number of meetings attended on a given day.
Chairman Fees: In addition to the annual retainer, an annual payment is made to the Board and Audit and Compensation Committee chairmen. Effective July 14, 2017, the Board reduced the fees payable to the Board and committee chairmen; the annual payment to the Board chairman was reduced from $25,000 to $5,000 and the annual payment to the Audit and Compensation Committee chairmen was reduced from $7,500 to $2,500.
15
Certain Relationships and Related Party Transactions
In accordance with its charter, our Audit Committee is responsible for reviewing and approving all related party transactions and considers the factors that it determines to be most relevant to evaluating each applicable transaction. A report is made to our Audit Committee annually by our management and our independent registered public accounting firm disclosing any known related party transactions. The Audit Committee reviewed and approved the following reportable transactions occurring during Fiscal Year 2019 and Fiscal Year 2018.
Management Agreement
As announced in the Current Report on Form 8-K filed by the Company with the SEC on February 14, 2019, the Company entered into a management agreement, as amended (the “Management Agreement”), with CIDM LLC (the “Asset Manager”) on February 14, 2019 under which the Asset Manager (i) provides the Company with advisory services with respect to the management and allocation of the Company’s assets and (ii) exercises discretionary management authority over the Company’s trading portfolio of publicly traded securities.
The Asset Manager is an entity managed and owned by Julian Singer. Mr. Singer is also the managing principal of JDS1, LLC (“JDS1”), an entity that owns 3,586,269 shares of the Company’s common stock based on a Schedule 13D/A filed by Mr. Singer with the SEC on February 21, 2019, which comprises approximately 40.2% of the Company’s outstanding stock as of June 30, 2019. Under the Management Agreement, Mr. Singer is defined as a “Key Person” and the Company is relying on his relevant expertise for performance under the Management Agreement.
The Asset Manager will receive the following compensation for performance under the Management Agreement:
· | an annual management fee equal to 2% of the fair market value of the Assets (as defined in the Management Agreement), payable quarterly in arrears; |
· | a performance fee in respect of each performance period, which shall be equal to 20% of the appreciation of end-of-year net asset value as calculated pursuant to the 2019 CCUR Bonus Plan, payable quarterly in arrears; and |
· | a quarterly cash payment of $50,000 for full satisfaction of the related expenses of the Asset Manager. |
The management fee and performance fee are paid through the issuance of contractual stock appreciation rights based on the value of the Company’s common stock, which rights do not require any cash payment to the Asset Manager unless and until there are certain qualifying changes of control (which does not include any change of control related to the stock ownership of the Asset Manager or its affiliates) as contemplated in an exhibit to the Management Agreement. The stock appreciation rights are not issued under the CCUR Holdings, Inc. Amended and Restated 2011 Stock Incentive Plan (the “Stock Plan”).
Pursuant to the terms of the Management Agreement, the Asset Manager is required to consider participation by the Company in all appropriate opportunities within the purpose and scope of the Company’s objectives that are under consideration for the accounts of other clients of the Asset Manager or any of its affiliates. Thus, the Company may hold investments similar to or in conjunction with the Asset Manager or its affiliates.
Kandela, LLC
On October 29, 2018, the Company entered into a loan agreement with Kandela, LLC (“Kandela”), pursuant to which the Company provided Kandela with a $3,000,000 line of credit secured by a first priority security interest in accounts receivable and other assets of Kandela and subject to a monthly interest payment equal to the prime rate plus five percent per annum. At the time of the loan, an affiliate of JDS1, CCUR’s largest stockholder holding approximately 40.2% of the Company’s outstanding stock as of June 30, 2019, owned a 10% equity interest in Kandela. On March 21, 2019, CCUR received payment in full of all amounts owed to it by Kandela, including fees and interest payments, under the loan agreement and terminated the agreement. CCUR received $65,000 in total fees, including $45,000 paid as an early termination fee, and $34,586 in total interest payments.
HC2 Bonds
On or around November 14, 2018, JDS1, CCUR’s largest stockholder holding approximately 40.2% of the Company’s outstanding stock as of June 30, 2019, assisted the Company in purchasing bonds of HC2 Holdings, Inc., by selling $2,500,000 of bonds of HC2 Holdings, Inc. to the Company at the prevailing market price.
Elder Separation Agreement
As announced in the Company’s Current Report on Form 8-K filed with the SEC on January 2, 2018, pursuant to the Separation and Consulting Agreement and General Release of Claims (the “Separation Agreement”) with Derek Elder, CCUR’s former Chief Executive Officer and a former director of the Company, Mr. Elder provided consulting services to the Company from January 1, 2018 through December 31, 2018. As consideration for the consulting services, Mr. Elder received: (i) one payment of $217,722 on or about July 1, 2018; and (ii) an aggregate of $217,722 payable in six substantially equal monthly installments during the period beginning on July 1, 2018 through December 31, 2018. Mr. Elder was eligible to also receive an “Incentive Transaction Bonus” (as defined in the Separation Agreement) upon the consummation of any acquisition of any entity or business (as defined in the Separation Agreement, a “Sourced Business”) by the Company that Mr. Elder sourced and introduced to the Company during the consulting term and consummated on or before the 90th day following the termination of the consulting term (as defined by the Separation Agreement, a “Sourced Transaction”). The Incentive Transaction Bonus equaled the sum of (i) 1% of the total consideration paid by the Company for the Sourced Business in the Sourced Transaction and (ii) 7.5% of the Net Asset Value (as defined in the Separation Agreement) of a subsequent sale of the Sourced Business by the Company consummated on or before the 5th anniversary of the closing of the Sourced Transaction. The Separation Agreement was amended on June 25, 2018 to allow Mr. Elder to elect to receive the consulting payments directly or through his company Sky Advisors LLC. The Separation Agreement expired on December 31, 2018 and no Incentive Transaction Bonus was paid under the Separation Agreement.
Consulting Agreement with Robert Pons
As announced in the Company’s Current Report on Form 8-K filed with the SEC on January 2, 2018, in connection with the resignation of Robert Pons from the Board, the Company entered into a Consulting Agreement (the “Consulting Agreement”) with Spartan Advisors, Inc. (“Spartan”), a corporation owned by Mr. Pons. Pursuant to the Consulting Agreement, Spartan provided consulting services that included identifying and presenting investment opportunities to the Company within the parameters provided and other services as reasonably requested by the Board. During the term of the Consulting Agreement, Spartan was paid an aggregate of $85,000 annually in 12 monthly installments. Spartan was also eligible to receive an “Incentive Transaction Bonus” (as defined in the Consulting Agreement) upon the consummation of any acquisition (as defined in the Consulting Agreement, a “Sourced Transaction”) of an entity or business (as defined in the Consulting Agreement, a “Sourced Business”) by the Company that Spartan sourced and introduced to the Company during the term of the Consulting Agreement. Any transaction bonus payable to Spartan would be equal to the sum of (i) 1% of the total consideration paid by the Company for the Sourced Business in the Sourced Transaction and (ii) 7.5% of the “Net Asset Value” (as defined in the Consulting Agreement) of any subsequent sale of the Sourced Business by the Company. Mr. Pons also received 7,500 shares of restricted units of common stock of the Company, with vesting lapsing in equal installments on the first, second and third anniversary of the Consulting Agreement. The initial term of the Consulting Agreement was from January 1, 2018 through December 31, 2018 and, effective January 1, 2019, the agreement was amended to extend its term through June 30, 2019. During the term of the Consulting Agreement, 2,500 shares of the restricted stock vested, and the remaining 5,000 shares were forfeited upon expiration of the agreement on June 30, 2019. No Incentive Transaction Bonus was paid under the Consulting Agreement.
Share Purchase Agreement
As a part of the Company’s share repurchase program announced in its Current Report on Form 8-K filed with the SEC on March 5, 2018, on March 19, 2018, pursuant to a stock purchase agreement, the Company purchased 149,224 shares from Mr. Elder for a purchase price of $5.35 per share, resulting in an aggregate purchase price of $798,348.40.
Current Non-Employee Director Compensation
On December 27, 2018, the Board, based on the recommendation of the Compensation Committee, determined that it was appropriate to modify non-employee director compensation as immediately detailed below.
Annual Retainer. The Board determined that it was appropriate for non-employee Board members to continue receiving an annual retainer of $40,000, which retainer payment is irrespective of the number of yearly Board and committee meetings and payable in quarterly installments.
Chairmen Compensation. The Nominating and Compensation Committee chairmen continue to each receive an annual chairmen payment of $2,500. The Audit Committee chairman fee was increased from $2,500 to $5,000. The chairman of the Asset Management Committee, a committee created in Fiscal Year 2019, receives an annual equity grant of 17,500 shares of restricted stock with restrictions lapsing over a three-year period.
A non-employee Board Chairman is entitled to an annual chairman payment of $5,000. All chairmen fees are payable in quarterly installments. No fees will be paid to committee members.
Long-Term Incentives: Non-employee directors also. Each non-employee director will receive an annual equity grant in an amountof 7,500 shares of restricted stock, with restrictions lapsing over a three-year period, and in the form as determined by the Compensation Committee andhas the discretion to award additional equity awards as it deems appropriate.
None of the directors received perquisites in Fiscal Year 2019. Employee directors do not receive any separate compensation, except as described above, or perquisites for their service on the Board.
Prior Non-Employee Director Compensation
During part of Fiscal Year 2019, from July 1, 2018 through December 27, 2018, non-employee directors received compensation under the compensation program described immediately below.
Annual Retainer. Each non-employee Board onmember received an annual basis. In Fiscal Year 2017,retainer of $40,000 irrespective of the number of yearly Board and committee meetings and payable in quarterly installments.
Chairmen Fees. The Audit, Nominating and Compensation Committee chairmen each received an annual chairmen payment of $2,500. The chairmen fees were payable in quarterly installments. No fees were paid to committee members. A non-employee Board Chairman was entitled to an annual chairman payment of $5,000.
Long-Term Incentives. Each non-employee director received an annual equity grant of 7,500 shares of restricted stock, with restrictions lapsing over a three-year period, and the Compensation Committee recommended andhad the Board approved the grant of 5,000 restricted stockdiscretion to award additional equity awards to all non-employee directors on November 11, 2016 with the restrictions lapsing as follows: 4,700 shares on October 15, 2017; 200 shares on October 15, 2018; and 100 shares on November 11, 2019.it deemed appropriate.
Post- Annual Meeting Non-Employee Director Compensation
Engagement of Compensation Consultant:
The Compensation Committee annually reviews non-employee director compensation and periodically engages a compensation consultant. Early in Fiscal Year 2014, the Compensation Committee retained Pearl Meyer & Partners to evaluate executive and director compensation, including long-term incentive awards. Thirteen peer companies were recommended by the firm and approved by the Compensation Committee for the initial evaluation:
Based on the input from the consulting firm, the Board concluded that the cash compensation and annual equity grant for each non-employee director were appropriate.
Early in Fiscal Year 2018, the Compensation Committee re-engaged Pearl Meyer & Partners to evaluate non-employee director compensation. The firm considered the following factors in its evaluation:
· | the increased frequency of Board and committee meetings during |
· | the cost savings from the reduction in size of the Board from seven to the then five directors and reduced chairmen fees; |
· | the increased time commitment for non-employee directors due to the decreased size of the Board and increased meeting frequency; |
· |
· |
· | the appropriate mix of cash compensation and long-term incentives. |
The twelve12 peer companies identified below were recommended by the firmPearl Meyer and approved by the Compensation Committee for the evaluation:
Brightcove, Inc. | GSE Systems, Inc. | Sonic Foundry, Inc. | ||
CSP, Inc. | iPass, Inc. | Synacor, Inc. | ||
Exa Corporation | Numerex Corp. | |||
Falconstor Software, Inc. | Qumu Corporation | |||
GlobalSCAPE, Inc. | SeaChange International, Inc. |
Based on the recommendation and input from the consulting firm,Pearl Meyer, the Board concluded earlythat the director compensation program should be modified as of the 2017 Annual Meeting of Stockholders, which program was further modified in Fiscal Year 2018 that it was appropriate2019 to modifythe current compensation set forth above.
The table below sets forth the compensation paid to each non-employee director compensation towho served on the following, effective as of the Annual Meeting.
Annual Retainer: In consideration of the increased frequency of Board and committee meetings during Fiscal Year 2017, the Board determined that the payment of fees for meeting attendance in addition to an annual retainer was no longer the most appropriate compensation structure for non-employee directors. In order to reduce Board costs and create payment consistency, the Board eliminated meeting payments in favor of a single annual retainer of $40,000. The annual retainer of $40,000 (effective as of the Annual Meeting) is irrespective of the number of yearly Board and committee meetings and payable in quarterly installments.
Chairman Fees: The Board chairman and Audit and Compensation chairmen will continue to receive the reduced annual chairmen payments of $5,000 and $2,500, respectively. The Nominating Committee chairman will also receive an annual chairman payment of $2,500. The chairmen fees are payable in quarterly installments. No fees will be paid to committee members.
Long-Term Incentives: Each non-employee director will receive an annual equity grant of 7,500, with restrictions lapsing over a three-year period.
None of the directors received perquisites in Fiscal Year 2017. Employee directors2019. Directors who are also employees of the Company (currently Mr. Barr) do not receive any separate compensation or perquisites(other than their compensation as employees of the Company) for their service on the Board.
DIRECTOR COMPENSATION FOR FISCAL YEAR 20172019 Director Compensation Table
Name | Fees Earned or Paid in Cash | Stock Awards (1) | Total | |||||||||
Steve G. Nussrallah (2) | $ | 60,750 | $ | 28,700 | $ | 89,450 | ||||||
Wayne Barr, Jr. | 38,224 | 28,700 | 66,924 | |||||||||
Charles Blackmon (2) | 49,625 | 28,700 | 78,325 | |||||||||
Larry L. Enterline (2) | 48,125 | 28,700 | 76,825 | |||||||||
Robert Pons | 41,000 | 28,700 | 69,700 | |||||||||
Dilip Singh | 43,500 | 28,700 | 72,200 |
Name | Fees Earned or ($) | Stock Awards ($)(1) | Total ($) | |||||||||
David Nicol | 43,750 | 27,675 | 71,425 | |||||||||
Steven G. Singer | 43,750 | 92,250 | 136,000 | |||||||||
Dilip Singh | 21,250 | - | 21,250 |
(1) | The amounts in this column reflect the grant date fair value for stock awards granted in Fiscal Year 2019, computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718. Each non-employee director at the time of the grant received shares on February 19, 2019 valued based on the closing stock price of CCUR’s common stock of $3.69 per share. As of June 30, 2019, the aggregate number of restricted stock awards held by non-employee directors was as follows: Mr. Nicol, 15,000; and Mr. Singer, 40,000. Mr. Singh did not stand for election to the Board at the 2018 Annual Meeting and departed the Board, effective November 8, 2018. Although Mr. Singh did not receive any equity awards in Fiscal Year 2019, the Board accelerated the vesting of 2,500 shares of restricted stock previously awarded to him. As of February 13, 2018, Mr. Barr began serving as the Company’s Interim Chief Executive Officer and President on a consultant basis until his election as Chief Executive Officer and President, effective March 1, 2019. He remained eligible to receive equity awards for his service as a director during his interim period as Chief Executive Officer and President. Following his election as Chief Executive Officer and President, Mr. Barr receives equity compensation solely for his service as Chief Executive Officer and President pursuant to the terms of his employment agreement, as set forth in the “Compensation Discussion and Analysis” section. |
(1) The amounts in this column reflect the grant date fair value for stock awards granted in Fiscal Year 2017 determined in accordance with the Accounting Standards Codification ("ASC") 718-10. An award was granted to each non-employee director on November 11, 2016 valued based on the closing stock price of $5.74 per share. As of June 30, 2017, the aggregate number of restricted stock awards held by non-employee directors was as follows: Mr. Nussrallah, 5,400; Mr. Barr, 5,000; Mr. Blackmon, 5,400; Mr. Enterline 5,400; Mr. Pons, 5,400; and Mr. Singh, 5,400.
(2) Messrs. Nussrallah, Blackmon and Enterline resigned from the Board as of July 14, 2017.
Stock Ownership Guidelines
To align the interests of the executive officers and directors with the interests of the stockholders, the Board has adopted stock ownership guidelines for the CEO, Chief Financial Officer (“CFO”) and directors. Achievement of the guidelines is measured each December 31 and will be in effect until December 31, 2019, or within five years after the director or officer’s election. The stock ownership guideline for the CEO is 103,842 shares; the CFO, 43,150 shares; and the directors, 13,600 shares. All executive officers and directors were in compliance with the stock ownership guidelines as of December 31, 2016.
COMPENSATION DISCUSSION AND ANALYSIS
Named Executive Officers for Fiscal Year 20172019
Our NEOsnamed executive officers (“NEOs”) for Fiscal Year 20172019 were Derek J. Elder (President, CEOWayne Barr, Jr. (Executive Chairman, Chief Executive Officer and Director),President) and Warren Sutherland (CFO) and Emory O. Berry (former CFO and Executive Vice President of Operations)(Chief Financial Officer).
On May 15, 2017, Concurrent announcedFebruary 13, 2018, the saleBoard elected then Chairman of its Real-Time businessthe Board Mr. Barr to Battery Ventures, Inc.serve as the Interim Chief Executive Officer and that, simultaneously with such sale, Mr. Berry would depart as Concurrent’s CFO and Executive Vice President of Operations.the Company, on a consultant basis, and to continue his service as Executive Chairman of the Board. Effective March 1, 2019, Mr. Berry received compensation in accordance withBarr was elected as Chief Executive Officer and President of the provisions in his employment agreement regarding termination without due cause and a separation and general release agreement, as described in the Company’s Current Report on Form 8-K filed with the SEC on May 15, 2017 and in this section herein.
On May 13, 2017,Company by the Board, appointed Mr. Sutherlandand he continues to serve as Executive Chairman of the new CFO of Concurrent, effective immediately upon the departure of Mr. Berry. Mr. Sutherland most recently served as Vice President of Sales Operations, Information Technology and Financial Planning & Analysis at Concurrent since 2016.Board.
Comparison Objectives and Overview of Executive Compensation Program
Our executive compensation programs have been designed to ensure that total compensation for the NEOs and other senior management is aligned with our business objectives and financial performance, and to enable us to attract and retain skilled professionals who contribute to our long-term success. The objectives of our executive compensation programs are as follows:
We have also designed our compensation programs to reward our NEOs and other senior management’s measurable accomplishments toward the goal of creating stockholder value and the sustainability of our Company in the marketplace. To this end, a significant portion of our executive compensation packages is comprised of variable pay in the form of annual incentive awards, which are dependent on the achievement of company performance objectives, and long-term equity-based compensation.
Components of Compensation
Our executive compensation program consists of three primary components: base salary, an annual cash incentive opportunity and long-term equity-based incentive awards. We pay base salaries to remain competitive in the marketplace and to attract and retain talented executives. Base salaries are established assuming an acceptable level of individual performance and provide our executives with a steady cash payment. We haveDuring the first part of Fiscal Year 2019, shortly after the sale of our historical business divisions, the Compensation Committee provided discretionary cash bonuses to senior management based on its assessment of achievement of the goals specific to the Company during that specific post-sale period. During the latter part of Fiscal Year 2019, during which we began operation of our real estate and merchant cash advance operating segments, the Compensation Committee and the Board established and approved an annual cash-based incentive program, our Annual Incentive Plan or “AIP,“NAV Program,” with payouts contingent on the attainment of measurable financial company goals so that a significant portion ofincrease in the annual cash compensation for our executive officersCompany’s net asset value, subject to certain adjustments and senior management is at risk. Throughexclusions. In addition, through periodic grants of long-term equity-based incentive awards, we seek to enable executives to develop and maintain a significant long-term equity interest in our common stock, align our executives’ actions with our stockholders’ interests and create a retention incentive for our executives to continue their employment with us.
We believe it iscontinues to be necessary to consider and provide theseas appropriate the three identified elements of compensation — base salary, AIPan annual cash bonus award and long-term equity-based incentive awards — to compete for and retain executive talent in a competitive marketplace. The Compensation Committee has responsibility for establishing, implementing and monitoring adherence to this philosophy.
Determination of Compensation
Total Compensation
In establishing each NEO’s total compensation package, the Compensation Committee considers:considers the following as it deems appropriate:
· | the compensation packages of executive officers in similar positions at a comparable group of peer companies based on reported and survey information as described below; |
· | the experience and contribution levels of the individual executive officer; |
· | the Company’s performance; and |
· | advice received from Pearl Meyer, the Compensation Committee’s independent compensation consulting firm. |
Each element of compensation is compared with that of peer companies through review of analyses prepared by the consulting firm, the Surveys (as defined below) and the input received from the consulting firm. Total compensation (the combined value of base salary, target annual incentive award and grant date fair value of long-term equity-based incentive awards) is also assessed.
With respect to long-term equity-based incentive awards, the Compensation Committee also considers the amount and value of stock options and restricted stock currently held by the NEOs and senior managers when determining new grants. The Compensation Committee’s focus is on compensating executives for their individual performances and their expected future contributions to Concurrent,CCUR, in addition to the potential material adverse effect of the risks arising from these compensation practices.
Peer Group Analysis
Early inIn Fiscal Year 20142016 and again in late Fiscal Year 2016,2018, the Compensation Committee retained the consulting firm, Pearl Meyer & Partners, to advise themthe committee on executive andand/or director compensation policies and practices. This advice, which included a peer group analysis and survey information, was considered by the Compensation Committee in establishing the framework of our executive compensation package for Fiscal Years 2014-2017.2016 to 2019. The peer group recommended by the consulting firm and approved by the Compensation Committee used for purposes of analyzing the structure of our executives’ compensation included similarly-sizedsimilarly sized companies and those in the high-tech or communications industries. These criteria resulted in a group of companies against which our executive compensation program was evaluated. For the 2014Fiscal Year 2016 study these companies were:
For the 2016 study,on executive compensation, the peer companies were:
Brightcove, Inc. | GSE Systems, Inc. | Sonic Foundry, Inc. | ||
CSP, Inc. | iPass, Inc. | Synacor, Inc. | ||
Exa Corporation | Numerex Corp. | Violin Memory, Inc. | ||
Falconstor Software, Inc. | Qumu Corporation | Zhone Technologies, Inc. | ||
GlobalSCAPE, Inc. | SeaChange International, Inc. |
The Compensation Committee also references survey information (“Surveys”) obtained on-line from various organizations,sources, including surveys provided as well asdirected from the committee’s compensation consultant or counsel or reports published by global compensation organizations and local consulting firms. This data is utilized on an on-going basis to confirm that the base salaries, annual cash incentive awards and long-term stock awards continue to be customary and competitive.
Fiscal Year 2019 Base Salaries
Individual base salaries are determined through an evaluation of individual performance levels and contributions to our business objectives, as well as comparisons to the peer group described above and the Surveys for similar positions in the technology marketplace where we compete.respective markets. Salaries are reviewed annually for each NEO in July or August.
Fiscal 2017NEO.
In August 2016,Fiscal Year 2019, Mr. Barr received a monthly stipend of $15,000 for his service as Interim Chief Executive Officer and President through March 1, 2019, the Compensation Committee considered the compensation of the NEOseffective date for his election as Chief Executive Officer and determined thatPresident. Effective with his election as Chief Executive Officer and President, Mr. Elder would receive aBarr received an annual base salary increase of 6.3% and$300,000. Mr. Berry would receive aSutherland received an annual base salary increase of 3%. These increases were made effective as of September$232,500 from July 1, 20162018 through December 31, 2018 and for Mr. Berry was effective$250,000 from SeptemberJanuary 1, 20162019 through his resignation on May 15, 2017. The Compensation Committee determined that Mr. Sutherland would receive a base annual salary of $210,013 effective as of May 15, 2017.June 30, 2019.
Annual Incentive Awards
To align incentives forDiscretionary Bonuses
After the NEOs with the creationsale of stockholder value, our NEOs participate in the AIP that is in place for management level and other key employees. The AIP is designed to align employee incentives with the corporate goals that are most important for the fiscal year. Each year management develops the AIP and makes recommendations toremaining historical business division on December 31, 2017, the Compensation Committee awarded discretionary cash bonuses to senior management as it deemed appropriate based on its measurement of performance during the Company’s post-sale transition period while the Company evaluated use of the sale proceeds to acquire new operating businesses and assets. On January 30, 2018, the Compensation Committee approved a discretionary bonus payment of $50,000 to Mr. Sutherland that was paid in Fiscal Year 2019. On January 4, 2019, the Compensation Committee approved a discretionary bonus payment of $55,000 to Mr. Barr that was paid in Fiscal Year 2019.
Adoption of 2019 CCUR Bonus Plan
As announced in the Current Report on Form 8-K filed by the Company with the SEC on January 7, 2019, on January 1, 2019, upon the recommendation of the Compensation Committee of the Board, the Board adopted the 2019 CCUR Bonus Plan (referred to herein as the “NAV Program”), pursuant to which certain senior employees of the Company have the opportunity, among other things, to earn cash and equity incentive awards through a program based on growth in the Company’s net asset value (“NAV”). The NAV Program replaces the Company’s previous bonus program implemented for its consideration assenior employees. The NAV Program is subject to, and, where applicable, governed by, the terms of the Stock Plan.
Pursuant to the performance goals for the year. The AIP award is paid as a cash award after the completionterms of the fiscal year, usuallyNAV Program, each participant in August. Individual target awards are establishedthe NAV Program is eligible to receive a portion of a bonus pool allocated by the Compensation Committee based on the Company’s NAV growth in a percentagecalendar year net of a 5% required return threshold, subject to certain adjustments and exclusions as set forth therein. The Compensation Committee will determine the participants of the executive’s base salary, recognizingNAV Program and the relative sizeallocations of the share of the bonus pool among such participants.
For each NAV Program participant, the participant’s portion of the bonus pool shall be awarded as follows: (i) 50% of the award value will be paid in cash within 74 days after the end of the calendar year for which it is awarded; and scope(ii) 50% will be paid in cash, equity or a combination thereof, at the discretion of each executive’s responsibility within Concurrent.the Compensation Committee and subject to the limitations set forth in the Stock Plan.
Our NEOs are subject to the reimbursement or ‘clawback’ provisions of the Sarbanes-Oxley Act of 2002.2002 (the “Sarbanes-Oxley Act”).
Fiscal 2017 AIP
The AIP award targets for Fiscal Year 2017 for our NEOs were the following percentages of each person’s then current base salary: Mr. Elder, 70%, Mr. Berry, 50% and Mr. Sutherland, 50%.
For Fiscal Year 2017, the Compensation Committee determined that the AIP achievement percentage would consist of two equally-weighted factors: a revenue goal and an Adjusted EBITDA1 goal. The revenue goal was reported revenue (adjusted to reflect the sale of our Real-Time business); the Adjusted EBITDA goal was positive Adjusted EBITDA (adjusted to reflect the sale of our Real-Time business) and other discretionary adjustments made by the Compensation Committee. Fifty percent (50%) of the positive Adjusted EBITDA would be allocated to a pool for the Adjusted EBITDA goal.
The revenue goal was assigned a minimum (0% achievement), target (100% achievement) and maximum (150% achievement) amount. Achievement between each of these points was to be prorated.
For Fiscal Year 2017, the revenue and adjusted EBITDA goals were as follows:
Revenue Component:
Adjusted EBITDA Component
The minimum revenue goal was not achieved in Fiscal Year 2017; however, the Adjusted EBITDA goal was achieved. As a result, 50% of the AIP bonuses were earned for the NEOs.
Discretionary Bonuses
On September 5, 2017, the Compensation Committee approved a discretionary bonus payment of $50,000 to Derek Elder, CEO, and $15,000 to Warren Sutherland, CFO.
1 “Adjusted EBITDA” is a Non-GAAP measure and is defined as Earnings before Interest, Taxes, Depreciation and Amortization adjusted for other non-cash items such as share-based compensation expense.
Long-Term Equity-Based Incentive Awards
The Compensation Committee recommends to the Board, and the Board approves, grants of long-term equity-based incentive awards to the NEOs and senior managersemployees in the form of stock options and restricted stock. In determining the size of the grants, the Compensation Committee and the Board consider the amount and value of stock options and restricted stock currently held, the executive’s performance during the prior year, and the executive’s likely continued future contributions to Concurrent,CCUR, as well as the executive’s role within Concurrent.CCUR. The Compensation Committee also considers the value of awards granted to executives in similar positions at the peer companies based on the input received from the consulting firm and the Surveys.
The Compensation Committee recommends and the Board approves awards of stock options or restricted stock to the NEOs and senior managers generally at the time of initial employment and at discretionary intervals thereafter.
The Compensation Committee, in determining whether to grant stock options or restricted stock, considers what it believes most effectively motivates employees under different market conditions. The Compensation Committee considers long-term incentive grants based on recommendations from our CEOChief Executive Officer and Human Resources staff, as well as the consulting firm.our compensation advisors. In recent years, the Compensation Committee has primarily utilized restricted stock and other equity incentives periodically to focus individuals on our long-term performance, to motivate their performance and to retain them. The restricted stock may be performance-basedperformance-vested or time-based.time-vested.
All stock options are approved with exercise prices equal to the closing market price of our common stock on the date of grant. The date of the grant is the date of the Compensation Committee meetings, unless the approval is at a meeting preceding the release of earnings for the prior period, in which case the grant date is two business days after the earnings release. The Compensation Committee does not have any program, plan or practice to time stock option grants in coordination with the release of material nonpublic information, nor do we time the release of material nonpublic information for the purpose of affecting the value of executive compensation.
Fiscal 20172019 Equity Awards
Pursuant to their employment or consulting agreements, the tables“Summary Compensation Table” below reflectreflects the equity awards granted to our NEOs for Fiscal Year 2017.2019.
Estimated Possible Payouts Under Non- Equity Incentive Plan Awards (1) | Estimated Future Payouts Under Equity Incentive Plan Awards (2) (3) | All Other Stock Awards: Number of Shares of Stock | Grant Date Fair Value of Stock Awards | |||||||||||||||||||||||||||||||
Grant | Threshold | Target | Maximum | Threshold | Target | Maximum | ||||||||||||||||||||||||||||
Name | Date | ($) | ($) | ($) | (#) | (#) | (#) | (#) (2) | ($)(4) | |||||||||||||||||||||||||
Derek Elder | - | 253,422 | 380,133 | - | - | - | - | - | ||||||||||||||||||||||||||
09/01/2016 | - | - | - | - | - | 30,000 | 15,000 | 247,050 | ||||||||||||||||||||||||||
02/10/2017 | - | - | - | - | - | - | 10,000 | 50,900 | ||||||||||||||||||||||||||
Warren Sutherland | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||
09/01/2016 | - | 48,404 | 72,606 | - | - | - | 8,000 | 43,920 | ||||||||||||||||||||||||||
05/17/2017 | - | - | - | - | - | - | 30,000 | 183,000 | ||||||||||||||||||||||||||
Emory O. Berry | - | 167,186 | 250,779 | - | - | - | - | - | ||||||||||||||||||||||||||
09/01/2016 | - | - | - | - | - | - | 31,000 | 170,190 |
As a part of Mr. Berry’s departure, weEffective January 1, 2019, the Company entered into a separation agreement and general release (the “Separation“Second Amendment to Employment Agreement”) with Warren Sutherland, pursuant to which Mr. Berry. Under the Separation Agreement, the Company paid to Mr. Berry a lump sum paymentSutherland received an award of $100,813, less applicable withholding taxes and deductions, which amount represented the annual bonus accrued with respect to Mr. Berry for Fiscal Year 2017, and was in lieu of the obligation to pay Mr. Berry’s prior year’s bonus contained in his employment agreement. In addition, the Company accelerated vesting with respect to a pro-rata portion of Mr. Berry’s previously granted but unvested restricted stock awards and related accrued dividends such that a total of 54,68625,000 shares of restricted stock became vestedunder the Stock Plan which shares vest in three equal installments on the anniversary of the grant date. Mr. Sutherland will remain eligible for other long-term incentive awards.
On February 11, 2019, the Board elected Wayne Barr, Jr. as the Company’s Chief Executive Officer and $52,319 of dividends were released. The SeparationPresident, with such election to be effective March 1, 2019. Pursuant to the Employment Agreement contains customary confidentiality provisions and a mutual release of claimsentered between the Company and Mr. Berry.Barr, Mr. BerryBarr was awarded 40,000 shares of restricted stock under the Stock Plan which shares vest in three equal installments on the anniversary of the grant date, issued pursuant to the Stock Plan. Mr. Barr will beremain eligible for other long-term incentive awards.
During his tenure as Interim Chief Executive Officer and President, Mr. Barr was granted a non-qualified stock option, subject to customary non-solicitation and non-competition covenantsas defined in the Stock Plan, for a periodthe purchase of twenty-four months.15,000 shares of the Company’s common stock, priced at the closing market price on the date of grant. Pursuant to the terms of his employment, those options continue to vest during Mr. Barr’s service as Chief Executive Officer and President in accordance with the existing three-year vesting period.
Severance
Pursuant to the employment agreements we have with our NEOs,Mr. Barr and Mr. Sutherland, we provide severance pay to our NEOs,either in the form of cash and/or equity compensation, which is more fully described below under “Potential Payments Upon Termination or Change in Control.” In establishing this benefit,The Company has historically provided severance pay to NEOs under their employment agreements and, in doing so, the Compensation Committee has received advice from the consulting firmits compensation advisors and the Surveys that indicatesindicating that other comparable companies provide their NEOs similar protections in the form of severance and the amount of payments that are customary and reasonable in our industry. The Compensation Committee believes that providing severance to the NEOs is customary for our industry and allowsremains necessary for us to remain competitive with other companies.compete for and retain executive talent. This approach ensures that our NEOs continue to act in the best interests of stockholders even in the event that they are at risk of losing their jobs.jobs, which is even more important now as the Company continues its search for acquisition opportunities and expands its current operations. This strategy is particularly important and worthwhile given the difficulty for a high-level employee to secure a comparable position at another company quickly and for ConcurrentCCUR to remain competitive with other companies that routinely offer a similar benefit to their executive officers.
Pursuant to the terms of the Separation Agreement with Mr. Berry, he receives severance payments equal to his base salary as in effect on the separation date for a period of twelve months, paid in substantially equal installments in accordance with Company’s customary payroll practices, along with continued payment of the Company’s contribution towards his group health benefits for a period of eighteen months.
Compensation Risk Analysis
EarlyThe Compensation Committee engaged Pearl Meyer in late Fiscal Year 2014, the Compensation Committee retained Pearl Meyer & Partners2016 to perform a high-level risk assessment of the Company’s compensation program for NEOs and directors and any potential risk mitigation factors associated with existing policies and practices. The committee again engaged Pearl Meyer in late Fiscal Year 2016 to supplement this information. Each year management evaluates the risk of the Company’s compensation programs for all employees, consistent with the risk assessment completed by the consulting firm. The Compensation Committee considered the findings of the assessments conducted and concluded that the Company'sCompany’s compensation programs are designed and administered with the appropriate balance of risk and reward in relation to its overall business strategy and do not encourage employees to take unnecessary or excessive risks. The analyses considered the following attributes of the programs:
· | base salaries are periodically benchmarked and are competitive; |
· | balance between fixed and variable compensation varies with responsibility level; |
· | incentive |
· | performance goals and payouts are reviewed by |
· | the mix of |
· | executives receive equity-based incentives which vest over multiple years; |
· | limited use of employment agreements and packages offered are competitive; |
· | executives own meaningful levels of |
· | use of incentive plan performance goals that are both challenging and realistic. |
The Compensation Committee continues to periodically review and obtain Surveys to monitor whether compensation remains in line with the Company’s business and structure and the relevant marketplace.
Benefits and Perquisites
Our NEOs are eligible to participate inThe Company offers Mr. Barr and Mr. Sutherland the health and welfare and defined contribution plans that we make generally available to our other full-time employees, including health care,healthcare, disability and life insurance coverage and 401(k) matching programs. In Fiscal Year 2017, the Compensation Committee maintained the Company match at 50% of the first 5% of the employee’s annual salary invested by the employee in the 401(k) plan.made available to other full-time employees. The Company does not provide any pension plans or any non-qualified deferred compensationpreviously offered a 401(k)-matching program to any ofMr. Sutherland and other full-time employees up and until June 30, 2018, at which time the NEOs. Our NEOs do not receive any other benefits or perquisites.Company’s 401(k) program was terminated.
Role of Management in Determining Compensation
Evaluations of the NEOs’ performance (other than the CEO)Chief Executive Officer) performance are conducted on a regular basis by the CEO.Chief Executive Officer. The CEOChief Executive Officer reports to the Compensation Committee on the results of the evaluations of the other employed NEOs.NEO. The CEO’sChief Executive Officer’s performance is periodically evaluated by the Compensation Committee and the Board.
In addition to the CEO’sChief Executive Officer’s involvement in reviewing the performance of theany other NEOs,NEO, our management team plays an active role in updating the Compensation Committee on the trends and challenges of hiring, retaining and competing for talent. The management team periodically suggests alternative forms of compensation or compensation strategies to assist the Compensation Committee in establishing compensation packages that will enable us to attract and retain key talent. The Compensation Committee solicits input from executive management on compensation related strategies and practices. Additionally, the Compensation Committee utilizes the data and analysis from the consulting firmits compensation advisors and Surveys to gain a comprehensive view of related factors affecting its decision making. Management has not retained its own compensation consultants.consultant.
Tax Considerations
The Compensation Committee considers the impact of certain provisions of the Internal Revenue Code of 1986, as amended, relating to tax when making decisions on executive compensation. The primary provision they considerthe committee considers is Section 162(m).
Section 162(m) includes potential limitations on the deductibility for federal income tax purposes of compensation in excess of $1 million paid or accrued with respect to our highly paid executive officers. Qualifying performance-based compensation is not subject to the deduction limit if certain requirements are met. None of our NEOs received cash compensation in excess of $1 million in Fiscal Year 2017. Stock options and restricted stock granted to our NEOs from time to time are designed to qualify as performance-based compensation under Section 162(m). The Compensation Committee may determine, however, that one or more awards granted should not conform to these requirements if, in its judgment, such payments are necessary to achieve our compensation objectives and protect stockholder interests and the benefit of the compensation arrangement for ConcurrentCCUR and theits stockholders outweighs the incremental cost to Concurrent.CCUR.
AUDIT COMMITTEE REPORT
The Audit Committee reviewsRecently enacted legislation expanded the financial reporting process on behalfnumber of individuals covered by Section 162(m) and eliminated the Board. Our management has the primary responsibilityexception for the financial statements and the reporting process, including the system of internal control over financial reporting. Membership on the Audit Committee does not call for the professional training and technical skills generally associated with career professionals in the field of accounting and auditing. In addition, the independent registered public accounting firms devote more time and have access to more information than does the Audit Committee. Accordingly, the Audit Committee’s role does not provide any special assurance with regard to our financial statements, nor does it involve a professional evaluation of the quality of the audits performed by the independent registered public accounting firms. In this context, the Audit Committee reviewed the Fiscal Year 2017 audited financial statements with management, including a discussion of the quality and acceptability of our financial reporting, the reasonableness of significant judgments, and the clarity of disclosures in the financial statements.
The Audit Committee reviewed with Deloitte & Touche LLP, which is responsible for expressing an opinion on the conformity of those audited financial statements with U.S. generally accepted accounting principles, their judgments as to the quality and the acceptability of the financial statements and such other matters as are required to be discussed with the Audit Committee under Statement on Auditing Standards No. 61 (Communication with Audit Committees), as amended by the AICPA professional standards, Vol. 1 AU Section 380, as adopted by the Public Company Oversight Board in Rule 3200T, which include, among other items, matters related to the conduct of the audit of 2017 financial statements. The Audit Committee received from and discussed with Deloitte & Touche LLP the written disclosures and the letter required by the applicable requirements of the Public Company Accounting Oversight Board regarding that firm’s independence from us. In addition, the Audit Committee considered whether Deloitte & Touche LLP’s provision of nonaudit services is compatible with maintaining its independence from us.
The Audit Committee discussed with Deloitte & Touche LLP the overall scope and plans for the audit. The Audit Committee meets periodically with the internal auditor and Deloitte & Touche LLP, with and without management present, to discuss the results of their examinations, their evaluations of our internal controls, and the overall quality of our financial reporting.
In reliance on these reviews and discussions, the Audit Committee recommended to the Board, and the Board approved, the inclusion of the Fiscal Year 2017 audited financial statements in our Annual Report on Form 10-Kperformance-based compensation effective for Fiscal Year 2017,2019. Therefore, compensation in excess of $1 million paid to NEOs in Fiscal Year 2019 and later fiscal years will not be deductible unless it qualifies for filing with the SEC.transition relief applicable to certain arrangements in place as of November 2, 2017.
COMPENSATION COMMITTEE REPORTSummary Compensation Table
The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis with Concurrent’s management. Based on the Compensation Committee’s review of, and discussions with management with respect to the Compensation Discussion and Analysis, the Compensation Committee recommended to the Board that the Compensation Discussion and Analysis be included in this proxy statement.
Non-Equity | ||||||||||||||||||||||||||
Stock | Incentive Plan | All Other | ||||||||||||||||||||||||
Name and | Fiscal | Salary | Bonus | Awards | Compensation | Compensation | Total | |||||||||||||||||||
Principal Position | Year | ($) | (1) ($) | (2) (3) ($) | (4) ($) | (5) (6) ($) | ($) | |||||||||||||||||||
Wayne Barr, Jr. | ||||||||||||||||||||||||||
Executive Chairman, | 2019 | 93,468 | 55,000 | 148,080 | - | 120,000 | 416,548 | |||||||||||||||||||
Chief Executive Officer and President | 2018 | - | - | 123,480 | - | 75,000 | 198,480 | |||||||||||||||||||
Warren Sutherland | 2019 | 240,855 | 50,000 | 92,250 | - | - | 383,105 | |||||||||||||||||||
Chief Financial Officer | 2018 | 221,260 | 164,000 | - | 78,755 | 13,911 | 477,926 |
SUMMARY COMPENSATION TABLE
The following table sets forth compensation information for Fiscal Years 2016 and 2017 for our NEOs. None of the NEOs received perquisites in either of these fiscal years.
Non-Equity | ||||||||||||||||||||||||||||
Stock | Incentive Plan | All Other | ||||||||||||||||||||||||||
Name and | Fiscal | Salary | Bonus | Awards | Compensation | Compensation | Total | |||||||||||||||||||||
Principal Position | Year | ($) | (1) ($) | (2) ($) | (3) ($) | (4) ($) | ($) | |||||||||||||||||||||
Derek Elder | 2017 | 365,937 | 150,000 | 297,950 | 126,711 | 2,500 | 943,098 | |||||||||||||||||||||
President and Chief | 2016 | 346,540 | 332,400 | 774,250 | - | 2,311 | 1,455,501 | |||||||||||||||||||||
Executive Officer | ||||||||||||||||||||||||||||
Warren Sutherland | 2017 | 163,569 | 25,000 | 226,920 | 24,202 | 4,339 | 444,030 | |||||||||||||||||||||
Chief Financial Officer | ||||||||||||||||||||||||||||
Emory O. Berry | 2017 | 296,754 | - | 170,190 | - | 445,841 | 912,785 | |||||||||||||||||||||
Former EVP of | 2016 | 324,564 | 74,927 | 168,480 | - | 6,753 | 524,724 | |||||||||||||||||||||
Operations and | ||||||||||||||||||||||||||||
Chief Financial | ||||||||||||||||||||||||||||
Officer |
(1) | Includes the following amounts paid as discretionary bonuses: For Fiscal Year |
(2) | The |
(3) | The Fiscal Year 2018 amounts reported for Mr. Barr in this column represent his outstanding equity awards pursuant to: (i)15,000 options to buy Company stock granted on February 16, 2018, in consideration for his service as Interim Chief Executive Officer and President and (ii) an award of 7,500 shares of restricted stock granted on November 15, 2017 and an award of 7,500 shares of restricted granted to Mr. Barr on February 16, 2018, both in connection with Mr. Barr’s Board service and which vest in equal installments on the first, second and third anniversary of the respective grant date. The Fiscal Year 2018 amounts reported for the options granted to Mr. Barr reflect the grant date fair value for options to buy the Company's stock valued on the February 16, 2018 grant date and based on the Black-Scholes valuation model determined in accordance with the Account Standards Codification 718-10. |
(4) | The amounts reported in this column represent incentive plan compensation earned by the NEOs under the |
(5) | The amount |
(6) | In February 2018, Mr. Barr was appointed as Interim Chief Executive Officer and President, upon which time his quarterly Board fee was replaced with a $15,000 monthly stipend based on his services provided as Interim Chief Executive Officer. Mr. Barr received this fee each month through February 2019. In January 2019 Mr. Barr received a $55,000 discretionary cash bonus. In March 2019, Mr. Barr became an employee of the Company. |
OUTSTANDING EQUITY AWARDS
AS OF JUNE 30, 2017Outstanding Equity Awards at Fiscal Year-End
The following table provides information concerning outstanding equity awards held by the NEOs on June 30, 2017.2019.
Restricted | Performance | |||||||||||||||||||||||||||||||||||
Option Awards | Stock Awards | Stock Awards | ||||||||||||||||||||||||||||||||||
Name | Number of Securities Underlying Unexercised Options Exercisable (#) | Number of Securities | Option Exercise Price ($) | Option Grant Date | Option Expiration Date | Number of Shares or | Market Value of Shares or Units of Stock That Have Not Vested (3) ($) | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (4) (#) | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested (3)(4) ($) | |||||||||||||||||||||||||||
Derek Elder | - | - | - | - | - | 160,000 | 1,064,000 | 30,000 | 199,500 | |||||||||||||||||||||||||||
Warren Sutherland | - | - | - | - | - | 38,000 | 252,700 | - | - | |||||||||||||||||||||||||||
Emory O. Berry (5) | 9,000 | - | 12.80 | 9/12/2007 | 8/14/2017 | - | - | - | - |
Option Awards | Stock Awards | ||||||||||||||||||||||
Name | Number of Securities Underlying Unexercised Options Exercisable (#) (1) | Number of Securities Underlying Unexercised Options Unexercisable (#) | Option Exercise Price ($) | Option Expiration Date | Number of Shares or Units of Stock That Have Not Vested (#) (2)(3) | Market Value of Shares or Units of Stock That Have Not Vested ($) | |||||||||||||||||
Wayne Barr, Jr. | 5,000 | 10,000 | 5.42 | 2/15/2028 | 50,000 | 192,500 | |||||||||||||||||
Warren Sutherland | - | - | - | - | 25,000 | 96,250 |
(1) | The |
(2) | The |
Potential Payments Upon Termination or Change in Control
The employment agreements with our NEOsMr. Barr and Mr. Sutherland and the terms of our Amended and Restated 2011the Stock Incentive Plan and Third Amended and Restated 2001 Stock Option Plan provide for certain payments or accelerated vesting of awards as described below.
Executive Employment Agreements
We haveWayne Barr, Jr.On February 14, 2019, we entered into an employment agreement with Mr. Barr that became effective on March 1, 2019 and remains in place until terminated (i) by Mr. Barr or (ii) by the Company with or without Due Cause (as defined below) or upon death, continuing disability, termination after a change in control or constructive termination without Due Cause. Mr. Barr’s annual salary is $300,000 and he is eligible for a target bonus amount equal to 35% of the available bonus pool under the NAV Program.
Warren Sutherland.On May 15, 2017, we entered into an employment agreement with Mr. Sutherland, as amended on January 30, 2018 and January 1, 2019, that automatically renews on March 1, 2020 and thereafter remains in place until terminated, before or after renewal, (i) by Mr. Sutherland or (ii) by the Company with or without Due Cause or upon death, continuing disability, termination after a change in control or constructive termination without Due Cause. Mr. Sutherland’s annual salary was $232,500 for the first half of Fiscal Year 2019 (July 1, 2018-December 31, 2018) and $250,000 for the second half of Fiscal Year 2019 (January 1, 2019-June 30, 2019). He is eligible for a target bonus amount equal to 25% of the available bonus pool under the NAV Program.
Our employment agreements with our NEOs. These agreements containhistorically have contained generally the same terms, and provide forincluding (i) a base salary and (ii) an annual incentive award opportunity, both of which are reviewed annually and are subject to be reviewed for increase annually,change at the discretion of the Board or the Compensation Committee. The agreements also provide for an annual incentive award opportunity based on a percentage of base salary. Although the percentage is established in each agreement, it is subject to change by the Compensation Committee as an employee’s duties expand.
TheOur employment agreements typically provide that employment may be terminated by either ConcurrentCCUR or the respective NEO at any time and sometimes at a specified expiration time. In the event the NEO voluntarily resigns or is terminated for Due Cause (defined below), compensation under the employment agreement will end. In the event an agreement is terminated:is:
· | terminated (i) directly by us without Due Cause, |
(ii) in certain circumstances, constructively by us, or |
(iii) within one year of a Change in Control (as defined below in the |
· | with respect to Mr. |
the terminated employee will receive severance compensation. The severance compensation consisting of (1) for Mr. Elder his salary at the time of termination for a period of twelve months from the date of terminationBarr and for Mr. Sutherland his salary atconsists of the time of termination for a period of twelve months from the date of termination or constructive termination after a Change in Control or a period of six months from the date of termination for termination or constructive termination (not occurring within three months after a Change of Control), (2) continued participation in our healthcare plans through the severance period, and (3) for Mr. Elder the amount of annual incentive award, if any, paid in the year prior to termination and for Mr. Sutherland the amount of annual incentive award, if any, paid in the year prior to termination or constructive termination after a Change of Control or one-half that amount for termination or constructive termination (not occurring within three months after a Change in Control). Mr. Elder’s severance compensation will be doubled if he is constructively terminated within three months after a Change of Control or terminated within a year after a Change of Control. following:
· | salary at the time of termination for a period of 12 months from the date of termination or expiration or in the event of a constructive termination within one year of a Change of Control; |
· | the amount of annual incentive award, if any, paid in the fiscal year prior to termination or constructive termination; provided, however, that Mr. Sutherland is not eligible to receive this incentive payment as part of severance compensation if his employment expires on March 1, 2020; and |
· | COBRA continuation coverage during the severance period under our health plan for the employee and his eligible dependents who were covered under the health plan at the time of termination at the same premium charged to active employees during such period. |
The employment agreements define constructive termination as (a)(i) demotion, (b)(ii) material change in authority, duties or responsibilities, (c)(iii) material decrease in salary or incentive award opportunity, (d)(iv) material reduction in benefits, or (e)(v) material breach of the employment agreement by us.us or (vii) for Mr. Sutherland,if his employment is not extended beyond March 1, 2020.
Except for the prior year incentive award, which would be paid in a lump sum on the first pay date after termination, severance compensation would be paid in equal, biweekly installments or in accordance with our normal salary payment procedures. If we determine that the amounts payable are on account of an “involuntary separation from service” (as defined in Treasury Regulation Section 1.409A-1(n)) and exceed the “separation pay allowance” described below, the excess amounts payable would be accumulated and distributed in a single sum six months and one day after the date of the separation from service. If we reasonably determine that the amounts payable are not on account of an “involuntary separation from service” (as defined in Treasury Regulation Section 1.409A-1(n)), no amount shall be distributed before the date that is six months after separation from service. Further, any amounts that would have been distributed during the six months after the separation from service will be accumulated and distributed in a single sum six months and one day after the date of separation from service. The “separation pay allowance” means an amount that is two times the lesser of (x)(i) the NEO’s annualized compensation or (y)(ii) the compensation limit in effect under Internal Revenue Code Section 401(a)(17).
For ana NEO, the term “Due Cause” means the NEO:
committed a willful serious act to enrich himself at our expense or has been convicted of a felony involving moral turpitude; |
willfully and grossly neglected his duties, or intentionally failed to observe specific lawful directives or policies of the Board; |
failed to take reasonable and appropriate steps to determine the accuracy of Sarbanes-Oxley Act certifications; or |
failed to fulfill any of his duties to administer effective systems and controls necessary for compliance with the Sarbanes-Oxley Act. |
If a NEO’san employment agreement is terminated for any reason, hethe terminated employee is prohibited from competing with us, soliciting our customers or trying to hire our employees for the period in which he receives severance is provided, if any, plus one year.
Derek J. Elder. In November 2014, we entered into an employment agreement with Mr. Elder, which was amended on October 15, 2015 and September 1, 2016. Mr. Elder’s amended agreement has a three-year term and renews automatically for additional one-year terms unless one party notifies the other that it does not intend to renew. Mr. Elder’s annual salary was $370,000 in Fiscal Year 2017 and his target bonus was 70% of his annual salary.
Warren Sutherland. On May 15, 2017, we entered into an employment agreement with Mr. Sutherland that remains in place until voluntarily terminated by either party, by the Company with or without due cause or upon death, continuing disability, termination after a change in control or constructive termination without due cause. Mr. Sutherland’s annual salary was $210,013 in Fiscal Year 2017 and his target bonus was 50% of his annual salary.
Emory O. Berry.In August 2008, we entered into an employment agreement with Mr. Berry and terminated our consulting agreement regarding Mr. Berry with TechCFO. The agreement had a four-year term and renewed automatically for additional one-year terms unless one party notified the other that it did not intend to renew. Mr. Berry’s annual salary was $336,044 in Fiscal Year 2017. His target bonus was 50% of his annual base salary. As noted herein under the “Compensation Discussion and Analysis” heading, we entered into a Separation Agreement with Mr. Berry effective upon his departure on May 15, 2017 that provided foryear from such severance payments, accelerated vesting of outstanding RSA’s and dividends and a lump sum representing his accrued bonus for Fiscal Year 2017.period.
CCUR Holdings, Inc. Amended and Restated 2011 Stock Incentive Plan
The 2011 Stock Incentive Plan became effective November 1, 2011 and was amended effective October 23, 2014.2014 and November 8, 2018 to increase the shares authorized thereunder and on February 8, 2018 solely to reflect the Company’s name change from Concurrent Computer Corporation to CCUR Holdings, Inc. Under the Amended and Restated 2011 Stock Incentive Plan, if an employee terminates employment for any reason other than death, disability or cause, existing and vested stock options may be exercised for a period of three months. If an employee is terminated for Cause, any stock options held by such person shall immediately terminate. “Cause” has the meaning set forth in an award or, if there is no such definition in the award, (1)(i) the conviction of the employee for committing a felony under federal law or the law of the state in which such action occurred, (2)(ii) dishonesty in the course of fulfilling the employee’s employment duties (or duties as a director, in the case of a Non-Employee Director),non-employee director) or (3)(iii) willful and deliberate failure on the part of the employee to perform his or her employment duties (or duties as a director, in the case of a Non-Employee Director)non-employee director) in any material respect. Regardless of the reason for termination, any restricted or performance shares on which the restriction has not lapsed shall be cancelled upon termination.
Upon a Change in Control, any unvested, unexercised options to purchase shares shall immediately vest and the restrictions will lapse on any restricted and performance shares. “Change in Control” means the occurrence of any of the following events:
the acquisition of 50% or more of our stock by a party that is not a fiduciary holding the shares for our benefit; |
a change in the composition of the Board such that a minority of the directors (i) have been directors for at least 24 months, |
a merger, consolidation, reorganization, sale of substantially all of our assets, or the acquisition of assets or stock of another company, (“Merger”) unless (i) those holding our shares prior to the Merger hold more than 50% of the voting shares of the successor entity, (ii) more than 50% of the directors were our directors prior to the Merger and (iii) no entity owns 50% or more of our shares without approval of |
a liquidation or dissolution of the Company. |
If an employee is terminated due to death or continuing disability, any stock options vested at the time of termination may be exercised until the earlier of one year following termination or until the expiration of the stock options. Under such a termination, the Compensation Committee has the authority to accelerate vesting or further extend the time to exercise.
Derek J. Elder
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Wayne Barr, Jr.
The following table describes the estimated incremental compensation upon termination or Change in Control for Mr. Elder,Barr, assuming the triggering event occurred on June 30, 2017.2019. The actual amount of compensation can only be determined at the time of termination or Change in Control.
Payments and Benefits upon | Voluntary Termination | Change in Control | Constructive Termination | For Cause Termination | Termination Cause | Death | Disability | |||||||||||||||||||||
Termination | ($) | ($) | ($) | ($) | ($) | ($) | ($) | |||||||||||||||||||||
Compensation: | ||||||||||||||||||||||||||||
Base Salary | - | 740,022 | 370,011 | - | 370,011 | - | - | |||||||||||||||||||||
Incentive Award (1) | - | - | �� | - | - | - | - | - | ||||||||||||||||||||
Acceleration of Unvested Stock Awards (2) | - | 1,396,500 | - | - | - | 665,000 | 665,000 | |||||||||||||||||||||
Benefits: | ||||||||||||||||||||||||||||
Post Termination Medical (3) | - | 18,196 | 18,196 | - | 18,196 | - | - | |||||||||||||||||||||
Total | - | 2,154,718 | 388,207 | - | 388,207 | 522,000 | 522,000 |
Payments and Benefits upon Termination | Voluntary Termination | Change in Control | Constructive Termination | For Cause Termination | Termination without Cause | Death | Disability | |||||||||||||||||||||
($) | ($) | ($) | ($) | ($) | ($) | ($) | ||||||||||||||||||||||
Compensation: | ||||||||||||||||||||||||||||
Base Salary | - | 300,000 | 300,000 | - | 300,000 | - | - | |||||||||||||||||||||
Incentive Award | - | - | - | - | - | - | - | |||||||||||||||||||||
Acceleration of Unvested Stock Awards (1) | - | 192,500 | - | - | - | - | - | |||||||||||||||||||||
Benefits: | ||||||||||||||||||||||||||||
Post Termination Medical (2) | - | 16,545 | 16,545 | - | 16,545 | - | - | |||||||||||||||||||||
Total | - | 509,045 | 316,545 | - | 316,545 | - | - |
(1) | The amount in this row represents the full value of unvested restricted stock awards and stock options as of June 30, 2019, to the extent vesting would be accelerated upon a change of control. The assumed price is $3.85 per share, which was the closing price of our common stock on June 28, 2019. The strike price for the options is $5.42 per share, so the intrinsic value of the options was $0 as of June 30, 2019. |
(2) | The amount shown is the grossed-up amount of the difference between the employee’s portion of the premiums and the cost of COBRA coverage for the same plans, which would be paid to Mr. Barr during the severance period. Cost of continued benefits is estimated by using the current rate multiplied by 12 months. |
(1) Reflects the incentive award Mr. Elder was paid for Fiscal Year 2016.
(2) The amount in this row represents the full value of unvested RSAs, including those with performance conditions, as of June 30, 2017, to the extent vesting would be accelerated upon termination under these scenarios. The assumed price is $6.65, which was the closing price of our common stock on June 30, 2017.
(3) The amount shown is the grossed-up amount of the difference between the employee’s portion of the premiums and the cost of COBRA coverage for the same plans, which would be paid to Mr. Elder during the severance period. Cost of continued benefits is estimated by using current rate multiplied by 12 months.
Warren Sutherland
The following table describes the estimated incremental compensation upon termination or Change in Control for Mr. Sutherland, assuming the triggering event occurred on June 30, 2017.2019. The actual amount of compensation can only be determined at the time of termination or Change in Control.
Payments and Benefits upon | Voluntary Termination | Change in Control | Constructive Termination | For Cause Termination | Termination without Cause | Death | Disability | |||||||||||||||||||||
Termination | ($) | ($) | ($) | ($) | ($) | ($) | ($) | |||||||||||||||||||||
Compensation: | ||||||||||||||||||||||||||||
Base Salary | - | 210,013 | 105,007 | - | 105,007 | - | - | |||||||||||||||||||||
Incentive Award (1) | - | - | - | - | - | - | - | |||||||||||||||||||||
Acceleration of Unvested Stock Awards (2) | - | 252,700 | - | - | - | 252,700 | 252,700 | |||||||||||||||||||||
Benefits: | ||||||||||||||||||||||||||||
Post Termination Medical (3) | - | 12,280 | 6,140 | - | 6,140 | - | - | |||||||||||||||||||||
Total | - | 474,998 | 111,147 | - | 111,149 | 252,700 | 252,700 |
Payments and Benefits upon Termination | Voluntary Termination | Change in Control | Constructive Termination | For Cause Termination | Termination without Cause | Death | Disability | |||||||||||||||||||||
($) | ($) | ($) | ($) | ($) | ($) | ($) | ||||||||||||||||||||||
Compensation: | ||||||||||||||||||||||||||||
Base Salary | - | 250,000 | 250,000 | - | 250,000 | - | - | |||||||||||||||||||||
Incentive Award (1) | - | 128,755 | 128,755 | - | 128,755 | - | - | |||||||||||||||||||||
Acceleration of Unvested Stock Awards (2) | - | 96,250 | - | - | - | - | - | |||||||||||||||||||||
Benefits: | ||||||||||||||||||||||||||||
Post Termination Medical (3) | - | 16,545 | 16,545 | - | 16,545 | - | - | |||||||||||||||||||||
Total | - | 491,550 | 395,300 | - | 395,300 | - | - |
(1) Reflects the incentive award Mr. Sutherland was paid for Fiscal Year 2016.
(2) The amount in this row represents the full value of unvested RSAs, including those with performance conditions, as of June 30, 2017, to the extent vesting would be accelerated upon termination under these scenarios. The assumed price is $6.65, which was the closing price of our common stock on June 30, 2017.
(1) | Reflects the incentive award Mr. Sutherland was paid for Fiscal Year 2018. |
(3) The amount shown is the grossed-up amount of the difference between the employee’s portion of the premiums and the cost of COBRA coverage for the same plans, which would be paid to Mr. Sutherland during the severance period. Cost of continued benefits is estimated by using current rate multiplied by 12 months in the event of a change of control and by 6 months in the event of either constructive termination or termination without cause.
(2) | The amount in this row represents the full value of unvested restricted stock awards and stock options as of June 30, 2019, to the extent vesting would be accelerated upon a change of control. The assumed price is $3.85 per share, which was the closing price of our common stock on June 28, 2019. |
Compensation Committee Interlocks and Insider Participation
During the Fiscal Year 2017 the members of the Compensation Committee were Messrs. Enterline (Chairman), Blackmon and Pons. Effective as of July 14, 2017, the members of the Compensation Committee are Messrs. Pons (Chairman), Barr and Singh. No members of the Compensation Committee have ever been an officer or employee of Concurrent. In addition, none of our NEOs serve as a member of a Board or Compensation Committee of any entity that has one or more NEOs who serves on our Board or Compensation Committee.
The amount shown is the grossed-up amount of the difference between the employee’s portion of the premiums and the cost of COBRA coverage for the same plans, which would be paid to Mr. Sutherland during the severance period. Cost of continued benefits is estimated by using the current rate multiplied by 12 months. |
EQUITY COMPENSATION PLAN INFORMATION
The following table presents information as of June 30, 20172019 about Concurrent’sCCUR’s common stock that may be issued to the Company’s employees, officers and directors upon the exercise of options, warrants and rights under our Third Amended and Restated 2001the Stock Option Plan and Amended and Restated 2011 Stock Incentive Plan.
Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants and rights | Weighted average exercise price of outstanding options, warrants and rights | Number of securities remaining available for future issuance under equity compensation plans | |||||||||
Equity compensation plans approved by security holders: | ||||||||||||
2001 Stock Option Plan | 30,881 | $ | 13.06 | - | ||||||||
2011 Stock Incentive Plan | - | - | 122,622 | |||||||||
Total | 30,881 | $ | 13.06 | 122,622 |
Plan Category | Number of (#) (a) | Weighted-Average ($) (b) | Number of Securities Future Issuance Column (a)) (#) (c) | |||||||||
Equity compensation plans approved by security holders | 15,000 | 5.42 | 787,219 | |||||||||
Equity compensation plans not approved by security holders | — | — | — | |||||||||
Total | 15,000 | 5.42 | 787,219 |
PRINCIPAL ACCOUNTANT FEES AND SERVICES
Audit FeesCOMPENSATION COMMITTEE REPORT
The aggregate fees billed by Deloitte & Touche LLPCompensation Committee has reviewed and discussed the Compensation Discussion and Analysis included in this Proxy Statement with CCUR’s management and, based on such review and discussions, recommended to the Board that the Compensation Discussion and Analysis be included in this Proxy Statement and in the Company’s Annual Report on Form 10-K for professional services rendered for each of Fiscal Year 2017 and Fiscal Year 2016 for the audit of our annual financial statements, the reviews of the financial statements included in Quarterly Reports on Form 10-Q, other SEC filings and audit consultations were $673,542 and $542,000, respectively.2019.
Audit Related Fees
Compensation Committee of the Board | |
Steven G. Singer, Chairman | |
David Nicol | |
September 9, 2019 |
The aggregate fees billed by Deloitte & Touche LLP for other audit related services rendered to Concurrent for each of Fiscal Years 2017 and 2016 were $0.
Tax Fees
There were $13,000 and $12,000 in fees billed by Deloitte & Touche LLP for tax services rendered to Concurrent for each of Fiscal Years 2017 and 2016, respectively.
All Other Fees
Pursuant to the Audit Committee Charter, all permissible non-audit services to be performed by Deloitte & Touche LLP must be pre-approved by the Audit Committee. The aggregate fees billed by Deloitte & Touche LLP for services rendered to Concurrent, other than the services described above under “Audit Fees,” “Audit Related Fees,” and “Tax Fees,” for Fiscal Years 2017 and 2016 were each $2,000 and $2,000, respectively.AUDIT COMMITTEE REPORT
The Audit Committee reviews the financial reporting process on behalf of the Board. Our management has the primary responsibility for the financial statements and the reporting process, including the system of internal control over financial reporting. Membership on the Audit Committee does not call for the professional training and technical skills generally associated with career professionals in the field of accounting and auditing. In addition, the independent registered public accounting firms devote more time and have access to more information than does the Audit Committee. Accordingly, the Audit Committee’s role does not provide any special assurance with regard to our financial statements, nor does it involve a professional evaluation of the quality of the audits performed by the independent registered public accounting firms. In this context, the Audit Committee reviewed and discussed with management the audited consolidated financial statements included in the Company’s Annual Report on Form 10-K for Fiscal Year 2019, including a discussion of the quality and acceptability of our financial reporting, the reasonableness of significant judgments and the clarity of disclosures in the financial statements.
During Fiscal Year 2019, the Audit Committee discussed with Marcum LLP, which is responsible for expressing an opinion on the conformity of those audited consolidated financial statements with United States generally accepted accounting principles, their judgments as to the quality and the acceptability of the financial statements and such other matters as are required to be discussed by Auditing Standard No. 1301, “Communications with Audit Committees,” as adopted by the Public Company Accounting Oversight Board. The Audit Committee also received from Marcum LLP during Fiscal Year 2019 the written disclosures and the letter required by applicable requirements of the Public Company Accounting Oversight Board regarding that firm’s communications with the Audit Committee concerning independence, and has discussed with Marcum LLP its independence. In addition, the Audit Committee considered whether theMarcum LLP’s provision of non-audit services by Deloitte & Touche LLP is compatible with maintaining the independent registered public accountant's independence.its independence from us.
The Audit Committee discussed with Marcum LLP the overall scope and plans for the audit. The Audit Committee meets periodically with the internal auditor and Marcum LLP, with and without management present, to discuss the results of their examinations, their evaluations of our internal controls, and the overall quality of our financial reporting.
Based on these reviews and discussions, the Audit Committee recommended to the Board, and the Board approved, the inclusion of the Fiscal Year 2019 audited consolidated financial statements in our Annual Report on Form 10-K for Fiscal Year 2019, for filing with the SEC.
David Nicol, Chairman | |
Steven G. Singer | |
September 9, 2019 |
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RATIFICATION OF THE APPOINTMENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTANTSACCOUNTING FIRM
(Item 2 of Notice)
The Audit Committee of the Board has appointed Marcum LLP to serve as the firm of Deloitte & Touche LLP asCompany’s independent registered public accountants of Concurrentaccounting firm for the fiscal year ending June 30, 2018 and is submitting the appointment to stockholders for ratification. Deloitte & Touche2020. Marcum LLP alsohas served as ourthe Company’s independent registered public accountantsaccounting firm since December 15, 2017, the effective date of the Audit Committee’s approval of the engagement of Marcum LLP to serve as the Company's independent registered public accounting firm for the fiscal year ended June 30, 2018. Deloitte & Touche LLP, who served as CCUR’s independent registered public accounting firm for the fiscal year ended June 30, 2017, resigned as the Company’s independent registered public accounting firm on November 14, 2017. A representative
The reports of Deloitte & Touche LLP on the Company’s consolidated financial statements as of and for the fiscal years ended June 30, 2016 and 2017 did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles. During the fiscal years ended June 30, 2016 and 2017, and the subsequent interim period through December 15, 2017, there were no (i) “disagreements” (as that term is defined in Item 304(a)(1)(iv) of Regulation S-K) with Deloitte & Touche LLP on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to Deloitte & Touche LLP’s satisfaction, would have caused Deloitte & Touche LLP to make reference to the subject matter thereof in its reports for such fiscal years and interim period, or (ii) “reportable events” (as that term is described in Item 304(a)(1)(v) of Regulation S-K).
The Company expects that representatives of Marcum LLP will be present at the meeting,Annual Meeting and the representatives will have thean opportunity to make a statement if they desire andto do so. The Company also expects that representatives will be available to respond to appropriate questions.questions from stockholders.
AlthoughStockholder ratification of the Audit Committee’s appointment of Marcum LLP to serve as CCUR’s independent registered public accounting firm for the fiscal year ending June 30, 2020 is not required by our BylawsAmended and Restated By-laws or otherwise,otherwise. Nevertheless, the Board is submitting the selectionappointment of Deloitte & ToucheMarcum LLP to ourCCUR’s stockholders for ratification because we value our stockholders’ views on our independent registered public accounting firm and as a matter of good corporate practice. In the event thatgovernance. If our stockholders fail to ratify the appointment, it will be considered as a direction to the Board and Audit Committee to consider thewill reconsider its appointment of a different firm.Marcum LLP. Even if the appointment is ratified, the Audit Committee, in its discretion, may selectdirect the appointment of a different independent registered public accounting firm at any time during the fiscal year if itthe Audit Committee determines that such a change would be in the best interests of ConcurrentCCUR and ourits stockholders.
The Board unanimously recommends athat you vote “FOR” the ratification of the appointment of theMarcum LLP as CCUR’s independent registered public accountants.accounting firm for the fiscal year ending June 30, 2020.Unless otherwise specified, proxies will be voted“FOR” the ratification of the appointment of Marcum LLP as the Company’s independent registered public accounting firm for the fiscal year ending June 30, 2020.
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FEES PAID TO INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The following table presents fees for professional audit services rendered by Marcum LLP for the audit of CCUR’s consolidated financial statements for Fiscal Year 2019 and Fiscal Year 2018 and fees billed for other services rendered by Marcum LLP during those periods.
Fiscal Year 2019 ($) | Fiscal Year 2018 ($) | |||||||
Audit Fees(1) | 66,151 | 79,235 | ||||||
Audit-Related Fees | 0 | 0 | ||||||
Tax Fees | 0 | 0 | ||||||
All Other Fees | 0 | 0 |
(1) | Audit Fees consists of the aggregate fees billed for the respective year for professional services rendered by the independent registered public accounting firm for the audit of CCUR’s annual consolidated financial statements, reviews of CCUR’s interim consolidated financial statements, statutory audits and related services. |
Audit Committee Pre-Approval of Audit and Non-Audit Services
Pursuant to the Audit Committee charter, all audit and permissible non-audit services to be performed for the Company by its independent registered public accounting firm must be pre-approved by the Audit Committee. The Audit Committee may delegate to one or more of its members the authority to pre-approve audit and permissible non-audit services; provided, however, that all such pre-approved services must be disclosed by such delegate to the full Audit Committee at its next scheduled meeting.
The Audit Committee has considered whether the provision of non-audit services by Marcum LLP is compatible with the maintenance of that firm’s independence in the conduct of its auditing functions.
ADVISORY VOTE TO APPROVE NAMED EXECUTIVE OFFICERSOFFICER COMPENSATION
(Item 3 of Notice)
ConcurrentAs required by Section 14A of the Exchange Act, this proposal, commonly known as a “say-on-pay” proposal, gives the Company’s stockholders the opportunity to vote to approve or not approve, on an advisory basis, the compensation of the Company’s NEOs, which is providingdescribed in the “Compensation Discussion and Analysis” section of this Proxy Statement. This vote is not intended to address any specific item or element of compensation or the compensation of any particular officer, but rather the overall compensation of the Company’s NEOs and the philosophy, policies and procedures used to determine compensation.
Stockholders were most recently asked to approve the compensation of the Company’s NEOs at the Company’s 2018 Annual Meeting of Stockholders, and stockholders approved the NEO compensation with approximately 91% of the votes cast in favor. At the Company’s 2013 Annual Meeting of Stockholders, stockholders were asked to indicate whether future say-on-pay votes should occur every one, two or three years, with the Board recommending an annual advisory vote. Because the Board views it as a good corporate governance practice, and because at the 2013 Annual Meeting of Stockholders a majority of the votes cast were in favor of an annual advisory vote, stockholders will have the opportunity at the Annual Meeting to provide feedback to the Compensation Committee on the Company’s executive compensation program by endorsing or not endorsing the compensation of its NEOs. Stockholders will also have the opportunity at the Annual Meeting to cast an advisory vote on the following advisory resolution, commonly known as “say-on-pay.”
We are askingfrequency of future say-on-pay votes (see “Advisory Vote on the stockholdersFrequency of ConcurrentFuture Advisory Votes to approve, in a non-binding, advisory vote, the compensation of Concurrent’s NEOs as disclosed in Concurrent’s proxy statement under the heading “Compensation Discussion and Analysis,” the Summary Compensation Table and the related compensation tables, notes and narratives in Concurrent’s proxy statement.
The say-on-pay vote is advisory and, therefore, not binding on us. The Board and Compensation Committee value the opinions of our stockholders and will review and consider the voting results when making future decisions regarding our executive compensation program.Approve Named Executive Officer Compensation”).
The Board urges stockholders to read the Compensation“Compensation Discussion and AnalysisAnalysis” section of this Proxy Statement, which describes in more detail how Concurrent’sCCUR’s executive compensation policies and procedures operate and are designed to achieve our compensation objectives. The Compensation Committee and the Board believe that thethese policies and procedures articulatedare effective in achieving the Company’s overall compensation philosophy.
Accordingly, the Company is asking stockholders to vote, on an advisory basis,“FOR” the following resolution at the Annual Meeting:
RESOLVED, that the compensation paid to the Company’s NEOs, as disclosed in this Proxy Statement pursuant to the compensation disclosure rules of the SEC, including the Compensation Discussion and Analysis, are effective in achieving our goalsthe compensation tables and the related narrative discussion, is hereby approved.
This vote is advisory, which means that the stockholder vote on this proposal will not be binding on CCUR, the Compensation Committee or the Board. However, the Compensation Committee and the Board value the opinions of the CCUR’s stockholders and will carefully consider the outcome of the vote when making future compensation of our NEOs reported in this proxy statement reflects and supports these compensation policies and procedures.decisions for the Company’s NEOs.
The Board of Directors unanimously recommends athat you vote “FOR” the approval, on an advisory basis, of the compensation of Concurrent’s Named Executive Officers.
CCUR’s NEOs in Fiscal Year 2019 as disclosed in this Proxy Statement. Unless otherwise specified, proxies will be voted“FOR” the approval, on an advisory basis, of the compensation of CCUR’s NEOs in Fiscal Year 2019 as disclosed in this Proxy Statement.
AMENDMENTADVISORY VOTE ON THE FREQUENCY OF
FUTURE ADVISORY VOTES TO THE RESTATED CERTIFICATE OF INCORPORATIONAPPROVE
TO PROTECT CONCURRENT’S TAX BENEFITSNAMED EXECUTIVE OFFICER COMPENSATION
(Item 4 of Notice)
We are asking for your approval of an extension of an amendment (the “Article TWELFTH”) to our Restated Certificate of Incorporation to extend its expiration date until the 2018 Annual Meeting of Stockholders, or earlier Expiration Date (defined below). The Article TWELFTH imposes transfer restrictions and prevents, subject to certain limitations, transfers of our common stock if the transfer results in a stockholder owning 5% or moreAs required by Section 14A of the outstanding common stock.Exchange Act, the Company also is providing its stockholders with the opportunity to cast an advisory vote to express a preference regarding the frequency of future stockholder advisory votes on the compensation of the Company’s NEOs. CCUR currently holds its say-on-pay vote every year. In voting on this proposal, you will be asked to select from the following four options: whether the advisory vote should occur every one, two or three years, or to abstain from voting on the proposal. For the reasons explained below, the Board recommends that you vote for a one-year frequency, a continuation of the Company’s current policy.
After careful consideration, the Board believes that holding an advisory vote on the compensation of the Company’s NEOs every year is the best approach for CCUR and its stockholders. An annual say-on-pay vote provides stockholders with an annual opportunity to evaluate the Company’s overall executive compensation program. The Board believes that the annual say-on-pay vote has worked well, allowing stockholders to provide input on the Company’s executive compensation philosophy, policies and procedures as disclosed in the proxy statement each year and giving the Compensation Committee and the Board the opportunity to evaluate executive compensation decisions each year in light of the stockholder feedback.
The purposeoption of every one, two or three years that receives the highest number of votes cast will be considered to be the frequency for the advisory vote on NEO compensation that has been selected by the Company’s stockholders. The Board will consider the stockholder vote when determining how often an advisory vote on NEO compensation will be requested from the Company’s stockholders. Because this vote is advisory, and not binding on CCUR, the Compensation Committee or the Board may decide that it is in the best interests of the Article TWELFTH isCompany and its stockholders to prevent transfers of our common stock that would result inhold an ownership change under Section 382 ofadvisory vote on NEO compensation more or less frequently than the Internal Revenue Code (the “Code”). The Article TWELFTH was approved atoption selected by the 2016 Annual Meeting of Stockholders and under its terms will automatically expire at the time of the Annual Meeting. The proposed amendment to the Article TWELFTH attached hereto inExhibit A (the “Charter Amendment Extension”) will amend the Article TWELFTH solely to extend its terms through the 2018 Annual Meeting of Stockholders, unless another term of expiration (described below) is triggered before such meeting. The Board approved the Charter Amendment Extension, subject to stockholder approval, on August 28, 2017.Company’s stockholders.
IfThe Board recommends that you vote in favor of a frequency of “1 YEAR” for future advisory votes to approve the Charter Amendment Extension is approved by our stockholders, our Restated Certificate of IncorporationCompany’s NEO compensation.Unless otherwise specified, proxies will be amendedvoted in favor of a frequency of“1 YEAR” for future advisory votes to includeapprove the extended Article TWELFTH. The text of the extended Article TWELFTH is set forth inExhibit A to this proxy statement, and stockholders are urged to review it together with the following summary, which is qualified in its entirety by reference toExhibit A.Please read the Charter Amendment Extension in its entirety as the discussion below is only a summary.Company’s NEO compensation.
If approved, the Charter Amendment Extension will become effective upon filing of a Certificate of Amendment to our Restated Certificate of Incorporation with the Secretary of State of Delaware, which we would do promptly after the Annual Meeting.
Background and Reasons for the Proposal
The Charter Amendment Extension will continue protection of Concurrent’s net loss carryforwards and certain other tax attributes (collectively, “Tax Benefits”) under the Article TWELFTH, an amendment to Concurrent’s Restated Certificate of Incorporation first approved by stockholders at the 2016 Annual Meeting of Stockholders. Concurrent has experienced, and may continue to experience, substantial operating losses, and for federal and state income tax purposes, Concurrent may “carry forward” Tax Benefits in certain circumstances to offset current and future taxable income, which will reduce Concurrent’s federal and state income tax liability. As a result, these Tax Benefits can be a valuable asset of Concurrent, which may inure to the benefit of Concurrent and its stockholders. As of June 30, 2017, Concurrent had approximately $72.0 million of U.S. federal Tax Benefits and approximately $37 million of other state and federal tax assets. However, if Concurrent experiences an “ownership change,” as defined in Section 382 of the Code, its ability to use the Tax Benefits could be substantially limited, and the timing of the usage of the Tax Benefits could be substantially delayed, which could adversely affect the value of the Tax Benefits. Generally, an ownership change occurs if the percentage of Concurrent’s stock owned by one or more “five percent stockholders” increases by more than fifty percentage points over the lowest percentage of stock owned by such stockholders at any time during the prior three-year period.
Based upon these considerations, and advice of external counsel and legal advisors, on March 1, 2016, Concurrent entered into a Tax Asset Preservation Plan (the “NOL Plan”). The Board adopted the NOL Plan in an effort to deter acquisitions of our common stock that would potentially limit our ability to use our Tax Benefits to reduce our potential future federal income tax obligations. The NOL Plan had a 4.9% “trigger” threshold intended to act as a deterrent to any person acquiring 4.9% or more of our outstanding common stock without the approval of the Board. This protected our Tax Benefits because changes in ownership by persons owning less than 4.9% of the outstanding common stock would not be included in the calculation of whether Concurrent had experienced an “ownership change” under Section 382 of the Code.
At the same time the NOL Plan was adopted, we announced our intention to propose the Article TWELFTH for approval by our stockholders at the 2016 Annual Meeting of Stockholders. The Article TWELFTH established ownership limitations designed to preserve the value of Concurrent’s deferred tax assets in a manner similar to the NOL Plan.
36
The Article TWELFTH was approved by stockholders at the 2016 Annual Meeting of Stockholders and thereafter became effective upon the filing of the Certificate of Amendment to our Restated Certificate of Incorporation with the Secretary of State of Delaware. The amendment filing created the Article TWELFTH which preserves Concurrent’s ability to use the Tax Benefits to offset income until the Expiration Date, which means the earliest of (1) the repeal of Section 382 of the Code or any successor statute, if the Board of Directors determines that Article TWELFTH is no longer necessary or desirable for the preservation of Tax Benefits, (2) the close of business on the first day of a taxable year of Concurrent as to which the Board determines that no Tax Benefits may be carried forward, (3) such date as the Board shall fix in accordance with the provisions of the Charter Amendment and (4) the date of Concurrent’s annual meeting of stockholders to be held during calendar year 2017. The NOL Plan automatically terminated five business days after the 2016 Annual Meeting of Stockholders.
Concurrent’s Annual Meeting is expected to be the earliest occurrence of the events that can trigger the Expiration Date. The Article TWELFTH is thus expected to expire as of the Annual Meeting unless the Charter Amendment Extension is approved. The Charter Amendment Extension solely modifies the Expiration Date of the Article TWELFTH. All other terms of the Article TWELFTH shall remain the same if the Charter Amendment Extension is approved.
Pursuant to the Charter Amendment Extension, the Article TWELFTH will extend through the 2018 Annual Meeting of Stockholders unless it expires earlier upon the occurrence of another event that triggers the Expiration Date. If the Charter Amendment Extension is approved, the Article TWELFTH will be amended so that Expiration Date means the earliest of (1) the repeal of Section 382 of the Code or any successor statute, if the Board of Directors determines that Article TWELFTH is no longer necessary or desirable for the preservation of Tax Benefits, (2) the close of business on the first day of a taxable year of Concurrent as to which the Board determines that no Tax Benefits may be carried forward, (3) such date as the Board shall fix in accordance with the provisions of the Charter Amendment and (4) the date of Concurrent’s annual meeting of stockholders to be held during calendar year 2018.
Description of the Article TWELFTH
Article TWELFTH contains restrictions on the ownership and transfer of our stock. The purpose of the transfer restrictions and ownership limit are to reduce the risk of an “ownership change” under Section 382 of the Code that may limit Concurrent’s ability to utilize its Tax Benefits. In order to preserve our ability to use the Tax Benefits to offset income until the Expiration Date, no person other than Concurrent shall, subject to the exceptions described below, transfer to any person any direct or indirect interest in our common stock or preferred stock to the extent that such transfer could cause the transferee or any other person to directly or indirectly own 4.9% or more of our stock (referred to as a “4.9% Stockholder”) or would cause the stock ownership of any 4.9% Stockholder to increase.
Any transfer of Concurrent stock that would otherwise be prohibited shall be permitted if:
The Board may determine that the transfer restrictions shall not apply to any particular transaction or transactions, whether or not a request has been made. The Board may also impose any conditions it deems reasonable and appropriate in connection with approval of any transfer.
No transfers in violation of the transfer restrictions, referred to as a “prohibited transfer,” will be recorded by Concurrent or its agents, and the purported transferee of a prohibited transfer will not be recognized as a stockholder in respect of the Concurrent stock which is the subject of the prohibited transfer. These securities are referred to as “excess securities.” Excess securities will not have any rights as stockholders, including the right to vote and the right to receive dividends unless and until the excess securities are transferred to Concurrent’s agent (as described below) or the prohibited transfer is approved by the Board.
If the Board determines that a transfer constitutes a prohibited transfer, the excess securities will, upon written demand by Concurrent, be transferred to Concurrent’s agent for resale to one or more buyers in an arm’s-length transaction. The proceeds from the sale of excess securities by the agent, after payment of the agent’s costs, will be paid to the purported transferee up to the amount paid by the purported transferee for the excess securities as determined by the Board and the remaining proceeds shall be paid to one or more qualifying charities selected by the Board. If the purported transferee has resold the excess securities before Concurrent demands the transfer to the agent, then the purported transferee shall be deemed to have sold the excess securities for the agent and shall be required to transfer to the agent any dividends paid to such purported transferee with respect to any excess securities as well as the proceeds of the sale of such excess securities.
If a purported transferee fails to surrender excess shares or the proceeds of a sale to the agent upon demand by Concurrent, Concurrent may take action, including legal proceedings, to compel the surrender. To the fullest extent permitted by law, any stockholder who knowingly violates the transfer prohibitions will be liable for any and all damages we suffer as a result of such violation, including damages resulting from a reduction in, or elimination of, our ability to use our Tax Benefits and any professional fees incurred in connection with addressing such violation.
Any certificates representing shares of our stock will bear a legend referring to the restrictions on transfer and ownership of our stock described above.
The restrictions on ownership and transfer of our stock described above could delay, defer or prevent a transaction or a change in control that might involve a premium price for our common stock or otherwise be in the best interests of our stockholders.
Although the Article TWELFTH is intended to reduce the likelihood of an ownership change, we cannot eliminate the possibility that an ownership change will occur even if the Charter Amendment Extension is adopted given that:
As a result of these and other factors, the Charter Amendment Extension serves to reduce, but does not eliminate, the risk that we will undergo an ownership change.
Recommendation
Our Board has determined that it is in our best interests and the best interests of our stockholders to amend the Restated Certificate of Incorporation to adopt the Charter Amendment Extension to extend the imposition of transfer restrictions and Tax Benefits protection under the Article TWELFTH.
The Board of Directors recommends a vote FOR the approval of the proposal to amend the Restated Certificate of Incorporation to adopt the Charter Amendment Extension to protect our Tax Benefits.
COMMON STOCK OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS
The following table sets forth, to the best of our knowledge, the beneficial ownership of Concurrent’s common stock as of August 31, 2017, for directors, the NEOs and directors and NEOs as a group.
Number | Options | |||||||||||
of Shares | Exercisable | Percentage | ||||||||||
Beneficially | Within | of Shares | ||||||||||
Directors and NEO's | Owned (1) | 60 Days (2) | Outstanding (3) | |||||||||
Wayne Barr | 5,000 | - | * | |||||||||
Emory O. Berry | 130,046 | - | 1.3 | |||||||||
Charles Blackmon | 44,351 | (4) | 1,000 | * | ||||||||
Derek Elder | 225,000 | (5) | - | 2.3 | ||||||||
Larry L. Enterline | 44,351 | 1,000 | * | |||||||||
Steve G. Nussrallah | 49,351 | 1,000 | * | |||||||||
Robert Pons | 27,000 | - | * | |||||||||
Dilip Singh | 21,000 | - | * | |||||||||
Warren Sutherland | 38,000 | - | * | |||||||||
Directors and NEO's as a group | 584,099 | 3,000 | 6.0 | |||||||||
Five Percent Stockholders | ||||||||||||
JSD1, LLC | 1,372,379 | (6) | 13.9 | |||||||||
Renaissance Technologies Holding Corporation | 670,019 | (7) | 6.8 | |||||||||
Dimensional Fund Advisors LP | 633,528 | (8) | 6.4 | |||||||||
* Less than 1.0 |
Expenses of Solicitation
All costs of solicitation of proxies will be borne by Concurrent. In addition to solicitations by mail, our directors, officers and employees, without additional remuneration, may solicit proxies by telephone and personal interviews.CCUR. Brokers, custodians and fiduciaries will be requested to forward proxy soliciting material to the owners of stock held in their names, and we will reimburse them for their related out-of-pocket expenses. In addition to soliciting the proxies by mail and the Internet, our directors, officers and employees, without additional remuneration, may solicit proxies personally or by telephone, facsimile and e-mail.
Certain Relationships and Related Party Transactions2019 Annual Report to Stockholders
In accordance with its charter, our Audit CommitteeThis Proxy Statement is responsibleaccompanied by the Annual Report on Form 10-K for reviewingFiscal Year 2019, and approving all related party transactions. Although we havethese materials are also available atwww.proxyvote.com and on the Investors page of CCUR’s corporate website,www.ccurholdings.com, under the ‘Company’ tab then ‘Investors’ then ‘Annual Reports.’ The Annual Report on Form 10-K for Fiscal Year 2019, which contains the audited consolidated financial statements and other information about the Company, is not entered into any transactions with any immediate family memberincorporated in this Proxy Statement and is not to be deemed a part of a director or executive officerthe proxy soliciting material.
Annual Report on Form 10-K
The Company also will provide without charge to each person solicited pursuant to this Proxy Statement, upon the written request of Concurrent, if we were to do so, any such transaction would needperson, a copy of the Company’s Annual Report on Form 10-K for Fiscal Year 2019, including the financial statements and the financial statement schedules required to be reviewed and approvedfiled with the SEC, except exhibits thereto. If requested by our Audit Committee. A report is made to our Audit Committee annually by our management and our independent auditor disclosing any known related party transactions. No reportable transactions occurred during Fiscal Years 2016 or 2017.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a)eligible stockholders, we will provide a copy of the Exchange Act requires our officersexhibits for a reasonable fee. Requests should be in writing and directors, and persons who beneficially own more than ten percent of our common stock,addressed to file reports of ownership of Concurrent’s securities and changes in such ownership with the SEC. Officers, directors and ten percent stockholders are required by the SEC’s regulations to furnish us with copies of all Section 16(a) forms they file.
Based solely upon a review of copiesattention of the Section 16(a) filings filed by our officers and directors and persons who beneficially own more than ten percent of our common stock and written representations from certain reporting persons, we believe all required Section 16(a) reports were timely filed in Fiscal Year 2017. Company’s Corporate Secretary at CCUR Holdings, Inc., 4375 River Green Parkway, Suite 210, Duluth, Georgia 30096.
Householding
As permitted byThe SEC rules and Delaware law permit the Exchange Act,Company to mail one annual report and proxy statement, or notice of internet availability of proxy materials, as applicable, in one envelope to all stockholders residing at the same address if certain conditions are met. This is called “householding” and can result in significant savings of paper and mailing costs. Accordingly, only one copy of this Proxy Statement and the proxy statement and annual reportAnnual Report on Form 10-K for Fiscal Year 2019, or Notice of Internet Availability, as applicable, is being delivered to stockholders residing at the same address, unless such stockholders have notified usthe Company of their desire to receive multiple copies of theannual reports, proxy statementstatements or annual report. Wenotices of internet availability of proxy materials.
The Company will promptly deliver, upon oralwritten or writtenoral request, a separate copy of this Proxy Statement and the proxy statementAnnual Report on Form 10-K for Fiscal Year 2019, or annual report,the Notice of Internet Availability, as applicable, to any stockholder residing at an address to which only onea single copy was mailed.
Stockholders residing at the same address and currently receiving only one If you choose not to household or if you choose to continue householding but would like to receive an additional copy of this Proxy Statement, the proxy statement2019 Annual on Form 10-K for Fiscal Year 2019 or annual reportthe Notice of Internet Availability for members of your household, you may contact the Company’s Corporate Secretary in writing at 4375 River Green Parkway, Suite 100,210, Duluth, Georgia 30096, or by calling (770) 305-6434.
If you would like to request multiple copieshousehold in the future. Stockholders residing at the same addressfuture and are currently receiving multiple copies of the annual report, proxy statement or notice of internet availability, you may contact the Company’s Corporate Secretary at the address and phone number above to request that only a single copy of the annual report, proxy statement and annual reportor notice of internet availability be mailed in the future.
2018 Stockholder Proposals for the 2020 Annual Meeting of Stockholders
Any stockholder proposal intended to be included in CCUR’s proxy statement and form of proxy relating to the 2020 Annual Meeting of Stockholders must be in writing and received by the Company no later than May 12, 2020. Any such stockholder proposal must also comply with Rule 14a-8 of the Exchange Act, which lists the requirements for the inclusion of stockholder proposals in company-sponsored proxy materials. Stockholder proposals should be addressed to the attention of the Company’s Corporate Secretary at CCUR Holdings, Inc., 4375 River Green Parkway, Suite 210, Duluth, Georgia 30096. Pursuant to the SEC rules, submitting a proposal will not guarantee that it will be included in the Company’s proxy materials.
In addition, any stockholder proposal intended to be presented at the 2020 Annual Meeting of Stockholders, but that will not be included in the Company’s proxy statement and form of proxy relating to the 2020 Annual Meeting of Stockholders (i.e., any proposal other than a proposal submitted pursuant to Rule 14a-8 of the Exchange Act, proposals of stockholders for possible considerationAct), must be in writing and received by the Company’s Corporate Secretary at CCUR Holdings, Inc., 4375 River Green Parkway, Suite 210, Duluth, Georgia 30096 no earlier than June 26, 2020 and no later than July 26, 2020. However, if the 20182020 Annual Meeting of Stockholders (expectedis not scheduled to be held in October 2018)between September 24, 2020 and November 23, 2020, to be timely the stockholder’s notice must be so received by the Corporate Secretary of Concurrent beforenot later than the close of business on June 4, 2018 to be included in the proxy statement for that meeting, if appropriate for consideration under applicable securities laws. Stockholder proposals should be sent to:
Concurrent Computer Corporation
4375 River Green Parkway
Suite 100
Duluth, Georgia 30096
Attn: Corporate Secretary
In addition, a stockholder may bring business beforelater of (i) the 201810th day following the day of the public disclosure of the date of the 2020 Annual Meeting of Stockholders other than a proposal included inor (ii) 90 days prior to the proxy statement, or may submit nominations for directors, ifdate of the stockholder complies with the requirements specified in Concurrent’s Bylaws. The Bylaws require that, for proposals for the 20182020 Annual Meeting of Stockholders, aStockholders. Stockholder proposals must include the specified information concerning the proposal and the stockholder must:
The foregoing description is only a summarysubmitting the proposal as set forth in the Company’s Amended and Restated By-laws. A copy of the requirements of the Bylaws. Stockholders intending to submit a nomination or a proposal of other business for the 2018 Annual Meeting of Stockholders must comply with the provisions specified in the Bylaws, which were filed as an exhibit to a Form 8-K on September 9, 2011Company’s Amended and Restated By-laws may be found on the Investors page of Concurrent’s corporate website (www.concurrent.com), under the ‘Company’ tab in the Corporate Governance section.
Management generally will be able to vote proxies in its discretion unless the proponent of a stockholder proposal (a) provides Concurrent with a timely written statement that the proponent intends to deliver a proxy statement to at least the percentage of Concurrent’s voting shares required to carry the proposal, (b) includes the same statement in the proponent’s own proxy materials, and (c) provides Concurrent with a statement from a solicitor confirming that the necessary steps have been taken to deliver the proxy statement to at least the percentage of Concurrent’s voting shares required to carry the proposal.
Other Matters
The Board does not know of any other matters which may come before the meeting. If any other matters are properly presentedobtained by writing to the meeting, the proxy holders intend to vote, or otherwise to act, in accordance with their judgment on such matters.Company’s Corporate Secretary at CCUR Holdings, Inc., 4375 River Green Parkway, Suite 210, Duluth, Georgia 30096.
By Order of the Board, | |
Heather Asher | |
|
Duluth, Georgia
October 2, 2017September 9, 2019
CERTIFICATE OF AMENDMENT
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. KEEP THIS PORTION FOR YOUR RECORDS DETACH AND RETURN THIS PORTION ONLY TO THE
RESTATED CERTIFICATE OF INCORPORATION
Concurrent Computer Corporation, a corporation duly organizedVOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date To withhold authority to vote for any individual nominee(s), mark “For All Except” and existing underwrite the General Corporation Lawnumber(s) of the State of Delaware (the “Corporation”), does hereby certify as follows:
1. The name of the corporation is “Concurrent Computer Corporation.”
2. The Restated Certificate of Incorporation of the Corporation, as amended (the “Restated Certificate of Incorporation”), is hereby amended by replacing the existing Article TWELFTH of the Restated Certificate of Incorporation in its entirety with the text of the amended Article TWELFTH attached hereto asAnnex A (the “Amendment”).
3. In accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware (the “DGCL”), the Board of Directors of the Corporation duly adopted and approved the Amendment, deemed the Amendment advisable and directed that the Amendment be considered by the Corporation’s stockholders. Notice of the Amendment was duly given to the stockholders of the Corporation in accordance with Section 222 of the DGCL. The Amendment was adopted by the Corporation’s stockholders on October 25, 2017, in accordance Section 242 of the DGCL.
IN WITNESS WHEREOF, the Corporation has caused its duly authorized officer to duly execute this Certificate of Amendment to the Restated Certificate of Incorporation of the Corporation on this ___ day of October, 2017.
AMENDMENTTO THERESTATED CERTIFICATE OF INCORPORATIONOFCONCURRENT COMPUTER CORPORATION
TWELFTH: Restrictionsnominee(s) on the transfer of shares of the Corporation’s capital stock are as follows:
The following capitalized terms have the meanings ascribed below when used in this Article TWELFTH with initial capital letters (and any references in this Article TWELFTH to any portions of Treasury Regulation § 1.382-2T shall include any successor provisions):
(i) “4.9% Transaction” has the meaning set forth in Article TWELFTH, Section B.
(ii) “4.9% Stockholder” means a Person whose Percentage Stock Ownership equals or exceeds 4.9% of the Corporation’s then-outstanding Capital Stock, whether directly or indirectly, and including Capital Stock such Person would be deemed to constructively own or which otherwise would be aggregated with Capital Stock owned by such Person pursuant to Section 382 of the Internal Revenue Code, or any successor provision or replacement provision and the applicable Treasury Regulations thereunder.
(iii) “Agent” has the meaning set forth in Article TWELFTH, Section E.
(iv) “Board of Directors” means the board of directors of the Corporation (or a duly authorized committee thereof).
(v) “Capital Stock” means any interest that would be treated as “stock” of the Corporation pursuant to Treasury Regulation § 1.382-2(a)(3) or § 1.382-2T(f)(18).
(vi) “CDS” has the meaning set forth in Article TWELFTH, Section B.
(vii) “Common Stock” means the Common Stock, par value $0.01 per share, of the Corporation.
(viii) “Corporation Securities” means (1) Capital Stock, including Common Stock and Preferred Stock (other than Preferred Stock described in Section 1504(a)(4) of the Internal Revenue Code), and (2) warrants, rights, or options (including options within the meaning of Treasury Regulation § 1.382-2T(h)(4)(v)) to purchase Securities.
(ix) “DTC” has the meaning set forth in Article TWELFTH, Section B.
(x) “Effective Date” means the date of filing of this Certificate of Amendment to the Restated Certificate of Incorporation of the Corporation with the Secretary of State of the State of Delaware.
(xi) “Excess Securities” has the meaning given such term in Article TWELFTH, Section D.
(xii) “Expiration Date” means the earliest of (1) the repeal of Section 382 of the Internal Revenue Code or any successor statute, if the Board of Directors determines that this Article TWELFTH is no longer necessary or desirable for the preservation of Tax Benefits, (2) the close of business on the first day of a taxable year of the Corporation as to which the Board of Directors determines that no Tax Benefits may be carried forward, (3) such date as the Board of Directors shall fix in accordance with Article TWELFTH, Section L and (4) the date of the Corporation’s annual meeting of stockholders to be held during calendar year 2018.
(xiii) “Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended from time to time.
(xiv) Percentage Stock Ownership” means the percentage Stock Ownership interest of any Person or group (as the context may require) for purposes of Section 382 of the Internal Revenue Code as determined in accordance with the Treasury Regulation § 1.382-2T(g), (h), (j) and (k) or any successor provision.
(xv) “Person” means any individual, firm, corporation or other legal entity, including persons treated as an entity pursuant to Treasury Regulation § 1.382-3(a)(1)(i); and includes any successor (by merger or otherwise) of such entity.
(xvi) “Preferred Stock” means the Class A Preferred Stock, par value $100 per share, of the Corporation and the Series Preferred Stock, par value $0.01 per share, of the Corporation.
(xvii) “Prohibited Distributions” means any and all dividends or other distributions paid by the Corporation with respect to any Excess Securities received by a Purported Transferee.
(xviii) “Prohibited Transfer” means any Transfer or purported Transfer of Corporation Securities to the extent that such Transfer is prohibited or void under this Article TWELFTH.
(xix) “Proposed Transaction” has the meaning set forth in Article TWELFTH, Section C.
(xx) “Purported Transferee” has the meaning set forth in Article TWELFTH, Section D.
(xxi) “Request” has the meaning set forth in Article TWELFTH, Section C.
(xxii) “Requesting Person” has the meaning set forth in Article TWELFTH, Section C.
(xxiii) “Securities” and “Security” each has the meaning set forth in Article TWELFTH, Section G.
(xxiv) “Stock Ownership” means any direct or indirect ownership of Capital Stock, including any ownership by virtue of application of constructive ownership rules, with such direct, indirect, and constructive ownership determined under the provisions of Section 382 of the Internal Revenue Code and the regulations thereunder.
(xxv) “Tax Benefits” means the net operating loss carryforwards, capital loss carryforwards, general business credit carryforwards, alternative minimum tax credit carryforwards and foreign tax credit carryforwards, as well as any loss or deduction attributable to a “net unrealized built-in loss” of the Corporation or any direct or indirect subsidiary thereof, within the meaning of Section 382 of the Internal Revenue Code.
(xxvi) “Transfer” means any direct or indirect sale, transfer, assignment, conveyance, pledge or other disposition or other action taken by a Person (other than the Corporation) that alters the Percentage Stock Ownership of any Person. A Transfer also shall include the creation or grant of an option (including an option within the meaning of Treasury Regulation § 1.382-4(d)). To avoid doubt, a Transfer shall not include the creation or grant of an option by the Corporation, nor shall a Transfer include the issuance of Capital Stock by the Corporation.
(xxvii) “Transferee” means any Person to whom Corporation Securities are Transferred.
(xxviii) “Treasury Regulations” means the regulations, including temporary regulations or any successor regulations promulgated under the Internal Revenue Code, as amended from time to time.
In order to preserve the Corporation’s ability to use the Tax Benefits to offset income until the Expiration Date, no Person (including, without limitation, the U.S. Government or any agency or instrumentality thereof) other than the Corporation shall, except as provided in Article TWELFTH, Section C, Transfer to any Person (and any such attempted Transfer shall be voidab initio) any direct or indirect interest in any Corporation Securities to the extent that such Transfer, if effective, would cause the transferee or any other Person to become a 4.9% Stockholder, or would cause the Percentage Stock Ownership of any 4.9% Stockholder to increase (any such Transfer, a “4.9% Transaction”). This Article TWELFTH, Section B shall not preclude either the Transfer to the Depository Trust Company (“DTC”), Clearing and Depository Services (“CDS”) or to any other securities intermediary, as such term is defined in § 8102(14) of the Uniform Commercial Code, of Corporation Securities not previously held through DTC, CDS or such intermediary or the settlement of any transactions in the Corporation Securities entered into through the facilities of a national securities exchange, any national securities quotation system or any electronic or other alternative trading system;provided that, if such Transfer or the settlement of the transaction would result in a Prohibited Transfer, such Transfer shall nonetheless be a Prohibited Transfer subject to all of the provisions and limitations set forth in the remainder of this Article TWELFTH.
(i) Any Transfer of Corporation Securities that would otherwise be prohibited pursuant to Article TWELFTH, Section B shall nonetheless be permitted if:
(1) prior to such Transfer being consummated (or, in the case of an involuntary Transfer, as soon as practicable after such Transfer is consummated), the Board of Directors approves the Transfer in accordance with Article TWELFTH, Section C(ii) (such approval may relate to a Transfer or series of identified Transfers and may provide the effective time of such Transfer which could be retroactive);
(2) such Transfer is pursuant to any transaction, including, without limitation, a merger, consolidation, mandatory share exchange or other business combination in which all holders of Common Stock receive, or are offered the same opportunity to receive, cash or other consideration for all such Corporation Securities, and upon the consummation of which the acquirer owns at least a majority of the outstanding shares of Common Stock; or
(3) such Transfer is a Transfer to any employee stock ownership or other employee benefit plan of the Corporation or a subsidiary of the Corporation (or any entity or trustee holding shares of Common Stock for or pursuant to the terms of any such plan or for the purpose of funding any such plan or funding other employee benefits for employees of the Corporation or of any subsidiary of the Corporation).
(ii) The restrictions contained in this Article TWELFTH are for the purposes of reducing the risk that any “ownership change” (as defined in the Internal Revenue Code) with respect to the Corporation may limit the Corporation’s ability to utilize its Tax Benefits. The restrictions set forth in Article TWELFTH, Section B shall not apply to a proposed Transfer that is a 4.9% Transaction if the transferor or the transferee obtains the authorization of the Board of Directors in the manner describedline below.
(1) In connection therewith, and to provide for effective policing of these provisions, any Person who desires to effect a transaction that may be a 4.9% Transaction (a “Requesting Person”) shall, prior to the date of such transaction for which the Requesting Person seeks authorization (the “Proposed Transaction”), request in writing (a “Request”) that the Board of Directors review the Proposed Transaction and authorize or not object to the Proposed Transaction in accordance with this Article TWELFTH, Section C(ii). A Request shall be delivered by registered mail, return receipt requested, to the Secretary of the Corporation at the Corporation’s principal executive office. Such Request shall be deemed to have been made when actually received by the Corporation. A Request shall include: (a) the name and address and telephone number of the Requesting Person; (b) the number of Corporation Securities beneficially owned by, and Stock Ownership Percentage of, the Requesting Person; and (c) a reasonably detailed description of the Proposed Transaction or Proposed Transactions by which the Requesting Person would propose to effect a 4.9% Transaction and the proposed tax treatment thereof.
(2) 0000428849_1 R1.0.1.18For Withhold For All All All Except The Board of Directors shall, in good faith, endeavor to respond to a Request within sixty (60) days of receiving such Request;provided that the failure of the Board of Directors to make a determination within such period shall be deemed to constitute the denial by the Board of Directors of the Request.
(3) The Requesting Person shall respond promptly to reasonable and appropriate requests for additional information from the Corporation or the Board of Directors and its advisors to assist the Board of Directors in making its determination. The Board of Directors shall only authorize a Proposed Transaction if (a) it receives, at its request, a report from the Corporation’s advisors to the effect that the Proposed Transaction does not create a significant risk of material adverse tax consequences to the Corporation or (b) it otherwise determines in its sole discretion that granting the Request is in the best interests of the Corporation. Any Request may be submitted on a confidential basis and, except to the extent (x) required by applicable law or regulation, (y) required pursuant to a valid and effective subpoena, order, or request issued by a court of competent jurisdiction or by a governmental or regulatory body or authority or (z) provided to any regulatory or governmental authorities with jurisdiction over the Corporation and its affiliates, the Corporation shall maintain the confidentiality of such Request and the determination of the Board of Directors with respect thereto for a period of three years from the date of the Request, unless the information contained in the Request or the determination of the Board of Directors with respect thereto otherwise becomes publicly available.
(4) The Request shall be considered and evaluated by directors serving on the Board of Directors who are independent of the Corporation and the Requesting Person and disinterested with respect to the Request, who shall constitute a committee of the Board for this purpose, and the action of a majority of such independent and disinterested directors, or any committee of the Board consisting solely of these directors, shall be deemed to be the determination of the Board of Directors for purposes of such Request. Furthermore, the Board of Directors shall approve within thirty (30) days of receiving a Request as provided in this Article TWELFTH, Section C(ii) of any proposed Transfer that does not cause any aggregate increase in the Beneficial Ownership of Stock by 4.9% Stockholders (as determined after giving effect to the proposed Transfer) over the lowest Stock Ownership Percentage of such 4.9% Stockholders (as determined immediately before the proposed Transfer) at any time during the relevant testing period, in all cases for purposes of Section 382 of the Internal Revenue Code.
(iii) In addition to Article TWELFTH, Section C(ii), the Board of Directors may determine that the restrictions set forth in Article TWELFTH, Section B shall not apply to any particular transaction or transactions, whether or not a request has been made to the Board of Directors, including, without limitation, a Request pursuant to Article TWELFTH, Section C(ii). Any determination of the Board of Directors hereunder may be made prospectively or retroactively.
(iv) The Board of Directors may impose any conditions that it deems reasonable and appropriate in connection with any approval pursuant to this Article TWELFTH, Section C, including, without limitation, restrictions on the ability of any Transferee to Transfer Capital Stock acquired through a Transfer.
(i) Neither the Corporation or any of its employees or agents shall record any Prohibited Transfer, and the purported transferee of such a Prohibited Transfer (the “Purported Transferee”) shall not be recognized as a stockholder of the Corporation for any purpose whatsoever in respect of the Corporation Securities which are the subject of the Prohibited Transfer (the “Excess Securities”). Until the Excess Securities are acquired by another Person in a Transfer that is not a Prohibited Transfer, the Purported Transferee shall not be entitled, with respect to such Excess Securities, to any rights of stockholders of the Corporation, including, without limitation, the right torecommends you vote such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect thereof, if any, and the Excess Securities shall be deemed to remain with the transferor unless and until the Excess Securities are transferred to the Agent pursuant to Article TWELFTH, Section E or until an approval is obtained under Article TWELFTH, Section C. After the Excess Securities have been acquired in a Transfer that is not a Prohibited Transfer, the Corporation Securities shall cease to be Excess Securities. For this purpose, any Transfer of Excess Securities not in accordance with the provisions of Article TWELFTH, Section D or Section E shall also be a Prohibited Transfer.
(ii) The Corporation may require, as a condition to the registration of any Transfer of Corporation Securities or the payment of any distribution on any Corporation Securities, that the proposed Transferee or payee furnish to the Corporation all information reasonably requested by the Corporation with respect to such proposed Transferee’s or payee’s direct or indirect ownership interests in such Corporation Securities. The Corporation may make such arrangements or issue such instructions to its stock transfer agent as may be determined by the Board of Directors to be necessary or advisable to implement this Article TWELFTH, including, without limitation, authorizing such transfer agent to require an affidavit from a Purported Transferee regarding such Person’s actual and constructive ownership of Capital Stock and other evidence that a Transfer will not be prohibited by this Article TWELFTH as a condition to registering any transfer.
If the Board of Directors determines that a Transfer of Corporation Securities constitutes a Prohibited Transfer then, upon written demand by the Corporation sent within thirty (30) days of the date on which the Board of Directors determines that the attempted Transfer would result in Excess Securities, the Purported Transferee shall transfer or cause to be transferred any certificate or other evidence of ownership of the Excess Securities within the Purported Transferee’s possession or control, together with any Prohibited Distributions, to an agent designated by the Board of Directors (the “Agent”). The Agent shall thereupon sell to a buyer or buyers, which may include the Corporation, the Excess Securities transferred to it in one or more arm’s-length transactions (on the public securities market on which such Excess Securities are traded, if possible, or otherwise privately);provided,however, that any such sale must not constitute a Prohibited Transfer andprovided,further, that the Agent shall effect such sale or sales in an orderly fashion and shall not be required to effect any such sale within any specific time frame if, in the Agent’s discretion, such sale or sales would disrupt the market for the Corporation Securities, would otherwise adversely affect the value of the Corporation Securities or would be in violation of applicable securities laws. If the Purported Transferee has resold the Excess Securities before receiving the Corporation’s demand to surrender Excess Securities to the Agent, the Purported Transferee shall be deemed to have sold the Excess Securities for the Agent, and shall be required to transfer to the Agent any Prohibited Distributions and proceeds of such sale, except to the extent that the Corporation grants written permission to the Purported Transferee to retain a portion of such sales proceeds not exceeding the amount that the Purported Transferee would have received from the Agent pursuant to Article TWELFTH, Section F if the Agent rather than the Purported Transferee had resold the Excess Securities (taking into account the actual costs incurred by the Agent).
The Agent shall apply any proceeds of a sale by it of Excess Securities and, if the Purported Transferee has previously resold the Excess Securities, any amounts received by it from a Purported Transferee, together, in either case, with any Prohibited Distributions, as follows:
(i) first, such amounts shall be paid to the Agent to the extent necessary to cover its costs and expenses incurred in connection with its duties hereunder;
(ii) second, any remaining amounts shall be paid to the Purported Transferee, up to the amount paid by the Purported Transferee for the Excess Securities (or the fair market value at the time of the Transfer, in the event the purported Transfer of the Excess Securities was, in whole or in part, a gift, inheritance or similar Transfer) which amount shall be determined at the discretion of the Board of Directors; and
(iii) third, any remaining amounts shall be paid to one or more organizations qualifying under section 501(c)(3) of the Internal Revenue Code (or any comparable successor provision) selected by the Board of Directors.
The Purported Transferee of Excess Securities shall have no claim, cause of action or any other recourse whatsoever against any transferor of Excess Securities. The Purported Transferee’s sole right with respect to such shares shall be limited to the amount payable to the Purported Transferee pursuant to this Article TWELFTH, Section F. In no event shall the proceeds of any sale of Excess Securities pursuant to this Article TWELFTH, Section F inure to the benefit of the Corporation or the Agent, except to the extent used to cover costs and expenses incurred by Agent in performing its duties hereunder.
In the event of any Transfer which does not involve a transfer of securities of the Corporation within the meaning of Delaware law (“Securities,” and individually, a “Security”) but which would cause the transferee or any other Person to become a 4.9% Stockholder, or would increase the Stock Ownership Percentage of a 4.9% Stockholder, the application of Article TWELFTH, Sections E and F shall be modified as described in this Article TWELFTH, Section G. In such case, no such 4.9% Stockholder shall be required to dispose of any interest that is not a Security, but such 4.9% Stockholder or any Person whose ownership of Securities is attributed to such 4.9% Stockholder shall be deemed to have disposed of and shall be required to dispose of sufficient Securities (which Securities shall be disposed of in the inverse order in which they were acquired) to cause such 4.9% Stockholder, following such disposition, not to be in violation of this Article TWELFTH. Such disposition shall be deemed to occur simultaneously with the Transfer giving rise to the application of this provision, and such number of Securities that are deemed to be disposed of shall be considered Excess Securities and shall be disposed of through the Agent as provided in Article TWELFTH, Sections E and F, except that the maximum aggregate amount payable either to such 4.9% Stockholder, or to such other Person that was the direct holder of such Excess Securities, in connection with such sale shall be the fair market value of such Excess Securities at the time of the purported Transfer. All expenses incurred by the Agent in disposing of such Excess Stock shall be paid out of any amounts due such 4.9% Stockholder or such other Person. The purpose of this Article TWELFTH, Section G is to extend the restrictions in Article TWELFTH, Sections B and F to situations in which there is a 4.9% Transaction without a direct Transfer of Corporation Securities, and this Article TWELFTH, Section G, along with the other provisions of this Article TWELFTH, shall be interpreted to produce the same results, with differences as the context requires, as a direct Transfer of Corporation Securities.
If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a sale thereof to the Agent within thirty days from the date on which the Corporation makes a written demand pursuant to Article TWELFTH, Section E (whether or not made within the time specified in Article TWELFTH, Section E), then the Corporation may take such actions as it deems appropriate to enforce the provisions hereof, including the institution of legal proceedings to compel the surrender. Nothing in this Article TWELFTH, Section H shall (i) be deemed inconsistent with any Transfer of the Excess Securities provided in this Article TWELFTH being voidab initio, (ii) preclude the Corporation in its discretion from immediately bringing legal proceedings without a prior demand or (iii) cause any failure of the Corporation to act within the time periods set forth in Article TWELFTH, Section E to constitute a waiver or loss of any right of the Corporation under this Article TWELFTH. The Board of Directors may authorize such additional actions as it deems advisable to give effect to the provisions of this Article TWELFTH.
To the fullest extent permitted by law, any stockholder subject to the provisions of this Article TWELFTH who knowingly violates the provisions of this Article TWELFTH and any Persons controlling, controlled by or under common control with such stockholder shall be jointly and severally liable to the Corporation for, and shall indemnify and hold the Corporation harmless against, any and all damages suffered as a result of such violation, including but not limited to damages resulting from a reduction in, or elimination of, the Corporation’s ability to utilize its Tax Benefits, and attorneys’ and auditors’ fees incurred in connection with such violation.
As a condition to the registration of the Transfer of any Capital Stock, any Person who is a beneficial, legal or record holder of Capital Stock, and any proposed Transferee and any Person controlling, controlled by or under common control with the proposed Transferee, shall provide such information as the Corporation may request from time to time in order to determine compliance with this Article TWELFTH or the status of the Tax Benefits of the Corporation.
The Board of Directors may require that any certificates issued by the Corporation evidencing ownership of shares of Capital Stock, or any other evidence issued by the Corporation of uncertificated shares of Capital Stock, that are subject to the restrictions on transfer and ownership contained in this Article TWELFTH bear the following legend:
THE RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED (THE “CERTIFICATE OF INCORPORATION”), OF CONCURRENT COMPUTER CORPORATION (THE “CORPORATION”) CONTAINS RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE CERTIFICATE OF INCORPORATION) OF STOCK OF THE CORPORATION (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS, RIGHTS AND WARRANTS) WITHOUT THE PRIOR AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION (THE “BOARD OF DIRECTORS”) IF SUCH TRANSFER AFFECTS THE PERCENTAGE OF STOCK OF THE CORPORATION (WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER), THAT IS TREATED AS OWNED BY A 4.9% STOCKHOLDER (AS DEFINED IN THE CERTIFICATE OF INCORPORATION). IF THE TRANSFER RESTRICTIONS ARE VIOLATED, THEN THE TRANSFER WILL BE VOIDAB INITIOAND THE PURPORTED TRANSFEREE OF THE STOCK WILL BE REQUIRED TO TRANSFER EXCESS SECURITIES (AS DEFINED IN THE CERTIFICATE OF INCORPORATION) TO THE CORPORATION’S AGENT. IN THE EVENT OF A TRANSFER WHICH DOES NOT INVOLVE SECURITIES OF THE CORPORATION WITHIN THE MEANING OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE (“SECURITIES”) BUT WHICH WOULD VIOLATE THE TRANSFER RESTRICTIONS, THE PURPORTED TRANSFEREE (OR THE RECORD OWNER) OF THE SECURITIES WILL BE REQUIRED TO TRANSFER SUFFICIENT SECURITIES PURSUANT TO THE TERMS PROVIDED" FOR IN THE CORPORATION’S CERTIFICATE OF INCORPORATION TO CAUSE THE 4.9% STOCKHOLDER TO NO LONGER BE IN VIOLATION OF THE TRANSFER RESTRICTIONS. THE CORPORATION WILL FURNISH WITHOUT CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE A COPY OF THE CERTIFICATE OF INCORPORATION, CONTAINING THE ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS.
The Board of Directors may also require that any certificates issued by the Corporation evidencing ownership of shares of Capital Stock, or any other evidence issued by the Corporation of uncertificated shares of Capital Stock, that are subject to conditions imposed by the Board of Directors under Article TWELFTH, Section C also bear a conspicuous legend referencing the applicable restrictions.
The Corporation may make appropriate notations upon its stock transfer records or other evidence of ownership and to instruct any transfer agent, registrar, securities intermediary or depository with respect to the requirements of this Article TWELFTH for any uncertificated Corporation Securities or Corporation Securities held in an indirect holding system.
(i) All determinations and interpretations of the Board of Directors shall be interpreted or determined, as the case may be, by the Board of Directors, in its sole discretion and shall be conclusive and binding for all purposes of this Article TWELFTH.
(ii) The Board of Directors shall have the power to determine all matters necessary for assessing compliance with this Article TWELFTH, including, without limitation, (1) the identification of 4.9% Stockholders, (2) whether a Transfer is a 4.9% Transaction or a Prohibited Transfer, (3) the Percentage Stock Ownership in the Corporation of any 4.9% Stockholder, (4) whether any instrument constitutes Corporation Securities, (5) the amount (or fair market value) due to a Purported Transferee pursuant to Article TWELFTH, Section F, and (6) any other matters which the Board of Directors determines to be relevant; and the good faith determination of the Board of Directors on such matters shall be conclusive and binding for all the purposes of this Article TWELFTH. In addition, the Board of Directors may, to the extent permitted by law, from time to time establish, modify, amend or rescind by-laws, regulations and procedures of the Corporation not inconsistent with the provisions of this Article TWELFTH for purposes of determining whether any Transfer of Corporation Securities would jeopardize or endanger the Corporation’s ability to preserve and use the Tax Benefits and for the orderly application, administration and implementation of this Article TWELFTH.
(iii) Nothing contained in this Article TWELFTH shall limit the authority of the Board of Directors to take such other action to the extent permitted by law as it deems necessary or advisable to protect the Corporation and its stockholders in preserving the Tax Benefits. Without limiting the generality of the foregoing, in the event of a change in law making one or moreALL " of the following actions necessary or desirable, the Boardnominees: 1.Election of Directors may, by adopting a written resolution, (1) accelerate the Expiration Date, (2) modify the ownership interest percentage in the Corporation or the Persons or groups covered by this Article TWELFTH, (3) modify the definitions of any terms set forth in this Article TWELFTH or (4) modify the terms of this Article TWELFTH as appropriate, in each case, in order to prevent an ownership change for purposes of Section 382 of the Internal Revenue Code as a result of any changes in applicable Treasury Regulations or otherwise;provided,however, that the Board of Directors shall not cause there to be such acceleration or modification unless it determines, by adopting a written resolution, that such action is reasonably necessary or advisable to preserve the Tax Benefits or that the continuation of these restrictions is no longer reasonably necessary for the preservation of the Tax Benefits. Stockholders of the Corporation shall be notified of such determination through a filing with the Securities and Exchange Commission or such other method of notice as the Secretary of the Corporation shall deem appropriate.
(iv) In the case of an ambiguity in the application of any of the provisions of this Article TWELFTH, including any definition used herein, the Board of Directors shall have the power to determine the application of such provisions with respect to any situation based on its reasonable belief, understanding or knowledge of the circumstances. In the event this Article TWELFTH requires an action by the Board of Directors but fails to provide specific guidance with respect to such action, the Board of Directors shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of this Article TWELFTH. All such actions, calculations, interpretations and determinations which are done or made by the Board of Directors in good faith shall be conclusive and binding on the Corporation, the Agent, and all other parties for all other purposes of this Article TWELFTH. The Board of Directors may delegate all or any portion of its duties and powers under this Article TWELFTH to a committee of the Board of Directors as it deems necessary or advisable and, to the fullest extent permitted by law, may exercise the authority granted by this Article TWELFTH through duly authorized officers or agents of the Corporation.
(v) Nothing contained in this Article TWELFTH shall limit the authority of the Board of Directors to determine, in its sole discretion, to waive the application of the provisions of this Article TWELFTH for all stockholders.
(vi) Nothing in this Article TWELFTH shall be construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable law.
To the fullest extent permitted by law, the Corporation and the members of the Board of Directors shall be fully protected in relying in good faith upon the information, opinions, reports or statements of the chief executive officer, the chief financial officer, the chief accounting officer or the corporate controller of the Corporation and the Corporation’s legal counsel, independent auditors, transfer agent, investment bankers or other employees and agents in making the determinations and findings contemplated by this Article TWELFTH. The members of the Board of Directors shall not be responsible for any good faith errors made in connection therewith. For purposes of determining the existence and identity of, and the amount of any Corporation Securities owned by any stockholder, the Corporation is entitled to rely on the existence and absence of filings of Schedule 13D or 13G under the Securities and Exchange Act of 1934, as amended (or similar filings), as of any date, subject to its actual knowledge of the ownership of Corporation Securities.
Nothing in this Article TWELFTH shall be construed to give to any Person other than the Corporation or the Agent any legal or equitable right, remedy or claim under this Article TWELFTH. This Article TWELFTH shall be for the sole and exclusive benefit of the Corporation and the Agent.
The purpose of this Article TWELFTH is to facilitate the Corporation’s ability to maintain or preserve its Tax Benefits. If any provision of this Article TWELFTH or the application of any such provision to any Person or under any circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Article TWELFTH.
With regard to any power, remedy or right provided herein or otherwise available to the Corporation or the Agent under this Article TWELFTH, (i) no waiver will be effective unless expressly contained in a writing signed by the waiving party and (ii) no alteration, modification or impairment will be implied by reason of any previous waiver, extension of time, delay or omission in exercise, or other indulgence.
CONCURRENT COMPUTER CORPORATIONNominees01 Wayne Barr, Jr. 02 David Nicol 03 Steven G. SingerCCUR HOLDINGS, INC. ATTN: GAIL JARVISVIRGINIA MOYER 4375 RIVER GREEN PARKWAY, SUITE 100210 DULUTH, GA 30096 Investor Address Line 1 Investor Address Line 2 Investor Address Line 3 Investor Address Line 4 Investor Address Line 5 John Sample 1234 ANYWHERE STREET ANY CITY, ON A1A 1A1 1 OF 2 1 1 VOTE BY INTERNET - www.proxyvote.comUse the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M.p.m., Eastern Time, the day before the cut-off date or meeting date.on October 23, 2019. Have your proxy card in hand when you access the web sitewebsite and then follow the instructions to obtain your records and to create an electronic voting instruction form.ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALSIf you would like to reduce the costs incurred by our companyCCUR Holdings, Inc. in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years.VOTE BY PHONE - 1-800-690-6903Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M.p.m., Eastern Time, the day before the cut-off date or meeting date.on October 23, 2019. Have your proxy card in hand when you call and then follow the instructions.VOTE BY MAILMark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. NAME THE COMPANY NAME INC. - COMMON THE COMPANY NAME INC. - CLASS A THE COMPANY NAME INC. - CLASS B THE COMPANY NAME INC. - CLASS C THE COMPANY NAME INC. - CLASS D THE COMPANY NAME INC. - CLASS E THE COMPANY NAME INC. - CLASS F THE COMPANY NAME INC. - 401 K CONTROL # 0000000000000000 SHARES 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 PAGE 1 OF 2 TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: KEEP THIS PORTION FOR YOUR RECORDS DETACH AND RETURN THIS PORTION ONLY THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. For Withhold For All All All Except The Board of Directors recommends you vote FOR • • • the following: To withhold authority to vote"FOR" Proposals 2 and 3 and in favor of "1 YEAR" for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below. 1. Election of Directors Nominees 01 Wayne Barr, Jr. 02 Derek J. Elder 03 Robert M. Pons 04 Steven Singer 05 Dilip Singh 02 0000000000 The Board of Directors recommends you vote FOR proposals 2, 3 andProposal 4. For Against Abstain 2 To ratify2.Ratification of the appointment of Deloitte & ToucheMarcum LLP as CCUR's independent auditorsregistered public accounting firm for fiscal year 2018. • • • 3 To conduct an advisory2020.3.Advisory vote to approve the compensation of Concurrent'sCCUR's named executive officers. • • • 4 Toofficer compensation in fiscal year 2019.1 year 2 years 3 years Abstain 4.Advisory vote on the frequency of future advisory votes to approve an amendment to Concurrent's Restated Certification of Incorporation designed to protect • • • Concurrent's tax benefits. CCUR's named executive officer compensation.NOTE:In thetheir discretion, of the proxies are authorized to vote on anysuch other matter thatbusiness as may properly come before the meeting or any adjournment or postponement thereof. EACH OF PROPOSALS 1, 2, 3 AND 4 HAS BEEN PROPOSED BY CCUR HOLDINGS, INC. Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. Investor Address Line 1 Investor Address Line 2 Investor Address Line 3 Investor Address Line 4 Investor Address Line 5 John Sample 1234 ANYWHERE STREET ANY CITY, ON A1A 1A1 0000344545_1 R1.0.1.17 Signature [PLEASE SIGN WITHIN BOX] Date JOB # Signature (Joint Owners) Date SHARES CUSIP # SEQUENCE #
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0000428849_2 R1.0.1.18Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:The Form 10-K, Notice & Proxy Statement is/and the Form 10-K are available at www.proxyvote.com CONCURRENT COMPUTER CORPORATION.CCUR HOLDINGS, INC. THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS FOR THE ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON OCTOBER 25, 201724, 2019 The undersigned hereby appoints Derek. J. Elder,appoint(s) Warren Sutherland and Heather Asher, and each of them, proxies with full power of substitution and resubstitution, for and in the name of the undersigned, to vote all shares of common stock of Concurrent Computer Corporation (the "Company")CCUR Holdings, Inc. that the undersigned would be entitled to vote if personally present at the Annual Meeting of Stockholders to be held on October 25, 2017, at 9:00 a.m., local time,Eastern Time, on Thursday, October 24, 2019 at the Corporate Headquarters,Company's corporate headquarters located at 4375 River Green Parkway, Ste. 100,Suite 210, Duluth, GA 30096 and at any adjournment or postponement thereof. This appointment relates to the matters described in the accompanying Notice of 2019 Annual Meeting of Stockholders and Proxy Statement and upon any other business that may properly come before the Annual Meeting of Stockholders or any adjournment or postponement thereof. By signing this Proxy,proxy card, the undersigned acknowledgesacknowledge(s) receipt of the accompanying Notice of 2019 Annual Meeting of Stockholders and Proxy Statement. The proxies are directed to vote on the matters described in the accompanying Notice of 2019 Annual Meeting of Stockholders and Proxy Statement as follows, and otherwise in their discretion upon such other business as may properly come before the Annual Meeting of Stockholders or any adjournment or postponement thereof. THIS PROXY, WHEN PROPERLY XECUTED, WILL BE VOTED AS DIRECTED BY THE UNDERSIGNED. IF NO SUCH DIRECTIONS ARE MADE, THIS PROXY WILL BE VOTED “FOR ALL” OF THE NOMINEES NAMED IN PROPOSAL 1, “FOR” PROPOSALS 2 AND 3, IN FAVOR OF “1 YEAR” FOR PROPOSAL 4, AND IN THE DISCRETION OF THE PROXIES WITH RESPECT TO SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE MEETING OR ANY ADJOURNMENT OR POSTPONEMENT THEREOF. PLEASE MARK, SIGN AND DATE ON THE REVERSE SIDE, AND RETURN THIS PROXY CARD PROMPTLY USING THE ENCLOSED REPLY ENVELOPE, OR FOLLOW THE INSTRUCTIONS TO VOTE BY INTERNET OR PHONE. Continued and to be signed on reverse side 0000344545_2 R1.0.1.17