BARBARA K. CEGAVSKESecretary of State
202 North Carson Street
Carson City, Nevada 89701-4201(775) 684-5708
Website:www.nvsos.gov
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14a-101)
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No.)
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☐ | Preliminary Proxy Statement | ☐ | Confidential, for Use of the Commission |
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☒ | Definitive Proxy Statement | ☐ | Definitive Additional Materials |
☐ | Soliciting Materials Pursuant to §240.14a-12 |
Recruiter.com Group, Inc.
(Name of Registrant as Specified In Its Charter)
Recruiter.com Group, Inc. |
(Name of Registrant as Specified In Its Charter) |
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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Recruiter.com Group, Inc.
100 Waugh Dr., Suite 300500 Seventh Avenue
Houston, Texas 77007New York, New York 10018
(855) 931-1500
NOTICE OF SPECIALANNUAL MEETING OF STOCKHOLDERS
To the stockholders of Recruiter.com Group, Inc.:
We are pleased to invite you to attend a Specialour Annual Meeting of the Stockholders (the “Special“Annual Meeting”) of Recruiter.com Group, Inc., a DelawareNevada corporation (the “Company”), which will be held at 11:00 a.m. localEastern time on May 6, 2020March 22, 2024, virtually at Club 75 located at 75 Rockefeller Plaza, New York, NY 10019, forhttps://www.virtualshareholdermeeting.com/RCRT2024 or the following purposes:
1. | To elect seven directors to our Board of Directors to serve until the next Annual Meeting of Stockholders or until their successors have been duly elected or appointed and qualified (“Director Appointments”); |
2. | To ratify the |
3. | To approve the adjournment of the | |
4. | To conduct any other business as may properly come before the meeting or any adjournment thereof. |
The Company’s Boardboard of Directorsdirectors (the “Board”) has fixed the close of business on March 26, 20208, 2023 as the date (the “Record Date”) for a determination of stockholders entitled to notice of, and to vote at, the SpecialAnnual Meeting or any adjournment thereof.
Important notice regarding the availability of proxy materials for the Special Meeting to be held on May 6, 2020:
The Notice and Proxy Statement are available at https://www.equitystock.com/shareholders/proxy-voting/recruiter-com-group-inc.
This Notice of Special Meeting and the accompanying proxy statement and form of proxy are first being mailed on or about March 30, 2020 to our stockholders of record entitled to vote at the Special Meeting.
If You Plan to Attend
Please notetake notice that space limitations make it necessarythe annual meeting of shareholders (the "Annual Meeting") of Recruiter.com Group, Inc. (the "Company") will be held on March 22, 2024, at 11:00 a.m., Eastern Standard Time. This year's Annual Meeting will be a completely "virtual meeting" of shareholders. You will be able to limit attendanceattend the Annual Meeting, vote and submit your questions during the Annual Meeting via live webcast by visiting https://www.virtualshareholdermeeting.com/RCRT2024. There is no pre-registration required; however, we encourage shareholders to stockholders. Registration and seating will begin at 10:00 a.m. local time. Shares can be voted at the meeting only if the holder is present in person or is represented by valid proxy.
For admissionallow adequate time to the meeting, each stockholder may be asked to present valid picture identification, such as a driver’s license or passport, and proof of stock ownership as of the Record Date, such as the enclosed proxy card or a brokerage statement reflecting stock ownership. Cameras, recording devices and other electronic deviceslog in. You will not be permitted atable to attend the meeting.Annual Meeting in person.
If you do not plan on attending the meeting, please vote your shares via the internet, by phone or by signing and dating the enclosed proxy and return it in the business envelope provided. Your vote is very important.
By the Order of the Board of Directors | ||
/s/ Evan Sohn | ||
Evan Sohn | ||
Director | ||
Dated: March 30, 202011, 2024
Whether or not you expect to attend in person, we urge you to vote your shares at your earliest convenience. This will ensure the presence of a quorum at the meeting. Promptly voting your shares via the Internet, by phone or by signing, dating, and returning the enclosed proxy card will save us the expenses and extra work of additional solicitation. An addressed envelope for which no postage is required if mailed in the United States is enclosed if you wish to vote by mail. Submitting your proxy now will not prevent you from voting your shares at the meeting if you desire to do so, as your proxy is revocable at your option. Your vote is important, so please act today!
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Recruiter.com Group, Inc.
500 Seventh Avenue
100 Waugh Dr., Suite 300New York, New York 10018
Houston, Texas 77007
(855) 931-1500
SPECIALANNUAL MEETING OF STOCKHOLDERS
PROXY STATEMENT
This proxy statement (the “Proxy Statement”) is being sent to the holders of shares of voting stock of Recruiter.com Group, Inc., a DelawareNevada corporation (the “Company”), in connection with the solicitation of proxies by our Board of Directors (the “Board”) for use at a Specialthe Annual Meeting of Stockholders of the Company which will be held at 11:00 a.m. localeastern time on May 6, 2020March 22, 2024, virtually at Club 75 located at 75 Rockefeller Plaza, New York, NY 10019https://www.virtualshareholdermeeting.com/RCRT2024 (the “Special“Annual Meeting”). The Notice of Special Meeting and this Proxy Statement and form of proxy are first being mailed on or about March 30, 2020 to our stockholders of record entitled to vote at the Special Meeting.
QUESTIONS AND ANSWERS REGARDING THE ANNUAL MEETING OF STOCKHOLDERS
Who is entitled to vote at the SpecialAnnual Meeting?
The Board has fixed the close of business on March 26, 20208, 2024 as the record date (the “Record Date”) for a determination of the stockholders entitled to notice of, and to vote at, the SpecialAnnual Meeting. As of the Record Date, there were (i) 4,623,5821,462,570 shares of common stock, par value $0.0001 per share (“Common Stock”) of the Company, (ii) 441,646 shares of Series D Convertible Preferred Stock, par value $0.0001 per share (“Series D Preferred Stock”) of the Company, (iii) 731,845 shares of Series E Convertible Preferred Stock, par value $0.0001 per share (“Series E Preferred Stock”) of the Company, and (iv) 75,496 shares of Series F Convertible Preferred Stock, par value $0.0001 per share (“Series F Preferred Stock,” and together with the Series D Preferred Stock and Series E Preferred Stock, the “Preferred Stock”) of the Company, outstanding. Each share of the Company’s Common Stock represents one vote that may be voted on each matter that may come before the Special Meeting. The holders of Preferred Stock are entitled to vote on all matters submitted to stockholders of the Company and are entitled to the number of votes for each share of Preferred Stock owned as of the Record Date equal to the number of shares of Common Stock such shares of Preferred Stock are convertible into at such time, subject to the limitation on the beneficial ownership set forth in the Certificates of Designation of Preferred Stock of 4.99% or 9.99%, to the extent the 4.99% limitation has been waived by the holder.
Company.
What matters will be voted on at the SpecialAnnual Meeting?
The three (3) proposals that are scheduled to be considered and voted on at the SpecialAnnual Meeting are as follows:
1. Approve an increase from 31,250,000
1. | To elect seven directors to our Board of Directors to serve until the next Annual Meeting of Stockholders or until their successors have been duly elected or appointed and qualified (“Director Appointments”); |
2. | To ratify the appointment of Salberg & Company, P.A. as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023 and for the fiscal year ending December 31, 2024 (the “Auditor Appointment”); and |
3. | To approve the adjournment of the Annual Meeting to a later date or time, if necessary, to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the Annual Meeting, there are not sufficient votes to approve the Director Appointments and/or Auditor Appointment (the “Adjournment”). |
Why are we seeking stockholder approval for these proposals?
Proposal No. 1: The Nevada Revised Statutes, as amended, require corporations to 250,000,000 shares inhold elections for directors each year.
Proposal No. 2: The Company appointed Salberg & Company, P.A. to serve as the number of shares of Common StockCompany’s independent auditors for the 2024 fiscal year. The Company elects to have its stockholders ratify such appointment.
Proposal No. 3: To provide the Company is authorizedadditional opportunities to issue (the “Authorized Share Increase”),receive approval for Proposal Numbers 1 and approve a corresponding amendment to the Company’s Certificate of Incorporation, as amended, to effect the Authorized Share Increase;4 if necessary.
2. Approve an Agreement and Plan of Merger pursuant to which the Company will merge with and into Recruiter.com Group, Inc., a Nevada corporation and a wholly owned subsidiary of the Company, resulting in reincorporation from the State of Delaware to the State of Nevada (the “Reincorporation”); and
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3. Approve the adjournment of the Special Meeting to a later date or time, if necessary, to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the Special Meeting, there are not sufficient votes to approve the Authorized Share Reduction and/or Reincorporation (the “Adjournment”).
What are the Board’s voting recommendations?
The Board of Directors recommends that you vote “FOR” the Authorized Share Increase,Director Appointments, “FOR” the ReincorporationAuditor Appointment, and “FOR” the Adjournment.
Why does the Company need to hold this vote?
The Company is required to increase the number of shares of Common Stock it is authorized to issue to comply with the applicable reserve requirements contained in the Amended and Restated Certificates of Designation of the Preferred Stock, filed with the Secretary of State of the State of Delaware on March 29, 2019, and the warrants to purchase Common Stock of the Company at the exercise price of $1.60 per share, issued in March, May and June of 2019 (the “2019 Warrants”). The sole purpose of the Reincorporation is to reduce the Company’s future annual franchise taxes. If the Authorized Share Increase is effected without effecting the Reincorporation, we will be required to pay approximately $200,000 annually in future Delaware franchise taxes.
What is the difference between holding shares as a record holder and as a beneficial owner?
If your shares are registered in your name with the Company’s transfer agent, EquityPacific Stock Transfer (as successor to Philadelphia Stock Transfer), you are the “record holder” of those shares. If you are a record holder, these proxy materials have been provided directly to you by the Company.
If your shares are held in a stock brokerage account, a bank or other holder of record, you are considered the “beneficial owner” of those shares held in “street name.” If your shares are held in street name, these proxy materials have been forwarded to you by that organization. As the beneficial owner, you have the right to instruct this organization on how to vote your shares.
Who may attend the SpecialAnnual Meeting?
Record holders and beneficial owners may attend the SpecialAnnual Meeting. If your shares are held in street name, you will need to bring a copy of a“legal proxy” from your brokerage statementfirm, bank, dealer or other documentation reflectingsimilar organization when you register for the Annual Meeting showing your stock ownership as of the Record Date. Please see below for instructions on how to vote at the SpecialAnnual Meeting if your shares are held in street name.
How do I vote?
If you are a stockholder of record, you may:
1. | Vote by | |
2. | Vote by | |
3. | Vote by fax. The fax number for fax voting is on your proxy card. | |
4. | Vote by mail. Mark, date, sign and mail promptly the enclosed proxy card. | |
5. | Vote |
If you vote by Internet or If you vote by phone, fax or internet, please DO NOT mail your proxy card.
If you are a beneficial owner, you must follow the voting procedures of your nominee included with your proxy materials. If your shares are held by a nominee and you intend to vote at the SpecialAnnual Meeting, please bring with you evidence of your ownership as of the record date (such as a letter from your nominee confirming your ownership or a bank or brokerage firm account statement) andhave a legal proxy from your nominee authorizing you to vote your shares.shares when you register for the Annual Meeting.
What constitutes a quorum?
To carry on the business of the SpecialAnnual Meeting, we must have a quorum. A quorum is present when one-third of the voting power of the issued and outstanding capital stock of the Company, as of the Record Date, areis represented in person or by proxy. However, because the Company must obtain a majority of the outstanding shares entitled to vote to approve each of the Authorized Share Increase and the Reincorporation, we need to exceed the quorum requirement. Shares owned by the Company are not considered outstanding or considered to be present at the SpecialAnnual Meeting. Broker non-votes and abstentions are counted as present for the purpose of determining the existence of a quorum.
As of the Record Date, there are a total of 1,462,570 votes that may be voted on each matter that may come before the Annual Meeting. The quorum is therefore 487,523 votes.
What happens if the Company is unable to obtain a quorum?
If a quorum is not present to transact business at the SpecialAnnual Meeting or if we do not receive sufficient votes in favor of the proposals by the date of the SpecialAnnual Meeting, the persons named as proxies may propose one or more adjournments of the SpecialAnnual Meeting to permit continued solicitation of proxies.
Which proposals are considered “Routine” or “Non-Routine”?
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Proposals 1, 2 and 3 are routine proposals.
What is a “broker non-vote”?
Broker non-votes occur with respect to shares held in “street name,” in cases where the record owner (for instance, the brokerage firm or bank) does not receive voting instructions from the beneficial owner and the record owner does not have the authority to vote those shares on a proposal.
Various national and regional securities exchanges applicable to brokers, banks, and other holders of record determine whether the record owner (for instance, the brokerage firm, or bank) is able to vote on a proposal if the record owner does not receive voting instructions from the beneficial owner. The record owner may vote on proposals that are determined to be routine under these rules and may not vote on proposals that are determined to be non-routine under these rules. If a proposal is determined to be routine, your broker, bank, or other holder of record is permitted to vote on the proposal without receiving voting instructions from you. The proposal to ratify the Auditor Appointment (Proposal 4) and the proposal to approve the Adjournment (Proposal 5) are routine matters and the record owner may vote your shares are held in street name, you must instructon these proposals if it does not get instructions from you.
The proposal for the organization which holdsDirector Appointments (Proposal 1) is non-routine and the record owner may not vote your shares how to vote your shares.on any of these proposals if it does not get instructions from you. If you do not provide voting instructions your shareson these matters, a broker non-vote will occur. Broker non-votes, as well as abstentions, will each be counted towards the presence of a quorum but will not be voted oncounted towards the number of votes cast for any non-routine proposal. This vote is called a “broker non-vote.” Broker non-votes do not count as a vote “FOR” or “AGAINST” any of the proposals submitted to a vote at the Special Meeting.
If you are a stockholder of record, and you sign and return a proxy card without giving specific voting instructions, the proxy holders will vote your shares in the manner recommended by the Board on all matters presented in this Proxy Statement and as the proxy holders may determine in their discretion with respect to any other matters properly presented for a vote at the Special Meeting. If your shares are held in street name and you do not provide specific voting instructions to the organization that holds your shares, the organization may generally vote at its discretion on routine matters, but not on non-routine matters. If you sign your proxy card but do not provide instructions on how your broker should vote, your broker will vote your shares as recommended by the Board on any non-routine matter.
How many votes are needed for each proposal to pass?
Proposals | Vote Required | |||||
(1) | Approve the | Affirmative vote of a | directors. | |||
(2) | ||||||
Approve the | Majority of the voting power present in person or by proxy and entitled to vote on the matter | |||||
(3) | Approve the Adjournment. | Majority of the voting power present in person or by proxy and entitled to vote on the matter |
What constitutes outstanding shares entitled to vote?
Approval of Proposal 1 and Proposal 2 requires the affirmative vote of the holders of a majority of the outstanding shares entitled to vote. At the close of business on the Record Date, there were 6,323,516 shares1,462,570 outstanding and entitled to vote, including: (i) 4,623,5821,462,570 shares of Common Stock and (ii) 1,699,934 shares0 votes as a result of Common Stock the shares of Preferred Stock outstanding as of the Record Date were convertible into as of such date, after giving effect to the limitation on the beneficial ownership set forth in the relevant Certificates of Designation of Preferred Stock of 4.99% or 9.99%, to the extent the 4.99% limitation has been waived by the holder.
Date.
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Is broker discretionary voting allowed and what is the effect of broker non-votes?
Broker | ||||||
Discretionary | Effect of Broker | |||||
Proposals | Vote Allowed | Votes on the Proposal | ||||
(1) | Approve the | No | None | |||
(2) | Approve | Yes | None | |||
(3) | Approve the | Yes | None |
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What is the effect of abstentions?an Abstention?
An abstention is a stockholder’s affirmative choice to decline to vote on a proposal. Under Nevada law, abstentions are counted as shares present and entitled to vote at the Annual Meeting. Generally, unless provided otherwise by applicable law, our Bylaws provide that an action of our stockholders (other than the election of directors) is approved if a majority of the number of shares of stock entitled to vote thereon and present (either in person or by proxy) vote in favor of such action. Votes marked as “ABSTAIN” on Proposal 1 will have no effect because directors are elected by plurality voting.
What are the voting procedures?
You may vote in favor of each proposal or against each proposal, or in favor of some proposals and against others, or you may abstain from voting on any of these proposals. You should specify your respective choices on the accompanying proxy card or your voting instruction form.
Is my proxy revocable?
You may revoke your proxy and reclaim your right to vote up to and including the day of the SpecialAnnual Meeting by giving written notice to the Corporate Secretary of the Company, by delivering a proxy card dated after the date of the proxy or by voting in person at the SpecialAnnual Meeting. All written notices of revocation and other communications with respect to revocations of proxies should be addressed to: EQUITY STOCK TRANSFER, 237 W 37TH ST, Suite 602,Recruiter.com Group, Inc., 500 Seventh Avenue, New York, NYNew York 10018, ATTN: Shareholder Services.Attention: Corporate Secretary.
Who is paying for the expenses involved in preparing and mailing this proxy statement?
All of the expenses involved in preparing, assembling and mailing these proxy materials and all costs of soliciting proxies will be paid by the Company. In addition to the solicitation by mail, proxies may be solicited by the Company’s officers and regular employees by telephone or in person. Such persons will receive no compensation for their services other than their regular salaries. Arrangements will also be made with brokerage houses and other custodians, nominees and fiduciaries to forward solicitation materials to the beneficial owners of the shares held of record by such persons, and we may reimburse such persons for reasonable out of pocket expenses incurred by them in so doing. We may hire an independent proxy solicitation firm.
Could other matters be decided at the SpecialAnnual Meeting?
Other than the Authorized Share Increase proposal,Director Appointments, the Reincorporation proposalAuditor Appointment, and the Adjournment proposal, no other matters will be presented for action by the stockholders at the SpecialAnnual Meeting.
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What is “householding” and how does it affect me?
Record holders who have the same address and last name will receive only one copy of their proxy materials, unless we are notified that one or more of these record holders wishes to continue receiving individual copies. This procedure will reduce the Company’s printing costs and postage fees. Stockholders who participate in householding will continue to receive separate proxy cards.
If you are eligible for householding, but you and other record holders with whom you share an address, receive multiple copies of these proxy materials, or if you hold the Company’s Common Stock in more than one account, and in either case you wish to receive only a single copy of each of these documents for your household, please contact the Company’s Corporate Secretary at: Recruiter.com Group, Inc., 100 Waugh Dr. Suite 300, Houston, Texas 77007, Attention: Corporate Secretary.
If you participate in householding and wish to receive a separate copy of these proxy materials, or if you do not wish to continue to participate in householding and prefer to receive separate copies of these documents in the future, please contact the Company’s Corporate Secretary as indicated above. Beneficial owners can request information about householding from their brokers, banks or other holders of record.
Do I have dissenters’ (appraisal) rights?
Appraisal rights are not available to the Company’s stockholders with any of the proposals brought before the SpecialAnnual Meeting.
Interest of Officers and Directors in Matters to Be Acted Upon
None of the officers or directors have any interest in any of the matters to be acted upon at the SpecialAnnual Meeting.
The Board Recommends that stockholders VoteTHE BOARD RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” ProposalsPROPOSALS 1, 2 andAND 3.
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PROPOSAL 1. APPROVALELECTION OF THE AUTHORIZED SHARE INCREASEDIRECTORS
Our Board is currently composed of seven (7) members. Directors hold office until the next Annual Meeting of Stockholders or until their earlier death, resignation, or removal, or until their successors are elected and qualified.
Information Regarding our Directors
Our Corporate Governance and Nominating Committee (the “Nominating Committee”) recommended, and our Board of Directors approved Evan Sohn, Miles Jennings, Tim O’Rourke, Douglas Roth, Wallace D. Ruiz, Deborah Leff, Robert Heath and Steve Pemberton as nominees for election as directors at the 2023 Annual Meeting to hold office for a one-year term until our Annual Meeting of Stockholders to be held in 2024. On March 7, 2024, the Board accepted the resignations of Robert Heath and Tim O’Rourke, and appointed Granger Whitelaw and Lillian Mbeki, respectively, to fill their vacancies on the Board.
The director nominees have consented to be named as nominees in this proxy statement and have agreed to serve as directors if elected. Unless otherwise instructed, the proxy holders will vote the proxies received by them for the seven (7) nominees named below. If any director nominee of the Company is unable or declines to serve as a director at the Annual Meeting, the proxies will be voted for any nominee designated by the present Board to fill the vacancy. The Board has no reason to believe that any of the nominees will be unavailable for election. The elected directors will hold office until the next Annual Meeting of Stockholders or until their earlier death, resignation, or removal, or until their successors are elected and qualified. There are no arrangements or understandings between any of our directors and any other person under which any director was selected to serve as a director of our Company. There are no family relationships among our directors or officers.
The following sets forth the persons nominated by the Board for election and certain information concerning those individuals:
Director Nominee | Age | Position | Director Since | |||
Evan Sohn | 56 | Director | April 2019 | |||
Granger Whitelaw | 57 | Chief Executive Officer and Director | March 2024 | |||
Miles Jennings | 46 | Interim Chief Financial Officer and Director | April 2019 | |||
Lillian Mbeki | Director | March 2024 | ||||
Deborah Leff | 56 | Director | August 2020 | |||
Steve Pemberton | 57 | Director | March 2021 | |||
Wallace D. Ruiz | 72 | Director | May 2018 |
Evan Sohn – Mr. Sohn has served as the Company’s Chief Executive Officer since July 2020 and Executive Chairman since April 2019. He served as VicePresident of Sales at Veea Inc., a company offering a platform-as-a-service (PaaS) platform for computing, mobile payment, point of sale, and retail solutions, from April 2018 until June 2020. Prior to joining Veea Inc., from September 2015 to April 2018, Mr. Sohn served as the Vice President of Sales at Poynt Inc., a company developing and marketing Poynt, a platform for next generation payments. Prior to that, from April 2012 to September 2015, Mr. Sohn was the Vice President of Sales at VeriFone, Inc., a company designing, marketing, and servicing electronic payment systems. Mr. Sohn is also the co-founder and Vice President of the Sohn Conference Foundation, a non-for-profit dedicated to the treatment and cure of pediatric cancer and related childhood diseases. He is a graduate of the NYU Stern School of Business with a degree in computer information systems and management.
Miles Jennings – Mr. Jennings has served as the Company’s Chief Executive Officer, Chief Operating Officer and President since 2020 and until March 2024. Prior to that, Mr. Jennings founded theCompany and served as the Chief Executive Officer of Recruiter.com, Inc. from 2015 until October 2017, and then as Chief Executive Officer of Truli Technologies, Inc. and its subsidiary, VocaWorks, Inc., from then until March 2019, when Truli Technologies merged with Recruiter.com, Inc. Mr. Jennings served as Chief Executive Officer of the merged company, Recruiter.com Group, Inc. through July 1, 2020, when he moved into the role of President and Chief Operating Officer. Mr. Jennings has worked in the recruiting and online recruiting industry since 2003 at employers including Modis, an Adecco division, and Indeed.com. He is a graduate of Trinity College in Hartford, CT with a degree in philosophy.
Granger Whitelaw –. Mr. Whitelaw has served as the Company’s Chief Executive Officer since March, 2024. Prior to that, Mr. Whitelaw was appointed as a director of GoLogiq, Inc. effective March 15, 2022. Currently based in Vietnam, Mr. Whitelaw is a serial entrepreneur who has successfully built and advised many businesses in Media, Aviation, Racing, Entertainment, Software, Technology, Consumer Products, and Real Estate in the U.S and countries around the world. Mr. Whitelaw has raised over $3.4 Billion for independent projects over his career and completed many mergers, acquisitions, public offerings and private equity financings. Along with a strong background in Finance and Operations, Mr. Whitelaw’s core strengths are Strategy, Sales, Marketing, Mergers/Acquisitions, Governance and Corporate Development.
Lillian Mbeki – Ms. Mbeki has served on the Board since March 2024. Ms. Mbeki has been the Chief Executive Officer of ELLEM Marketing & Communications LTD since July 2013. She was awarded a Doctorate in Business Administration from Edinburgh Business School, Herriot Watt University, UK in 2015, a Master of Science in Health Systems Management from Kenyatta University, Kenya in 2011, a MBA with Specialism in Strategy & Negotiation from Edinburgh Business School, Herriot Watt University, UK in 2011 and a Bachelor of Science in Nursing from University of Nairobi, Kenya in 2000.
Deborah S. Leff – Ms. Leff has served on the Board since August 2020. Ms. Leff has served as a Global Leader at IBM since October 2012 and mostrecently held the position of Global Industry CTO for Data Science and AI. Ms. Leff was selected for appointment to the Board for her experience with successfully implementing artificial intelligence and machine learning projects to drive strategic outcomes. Ms. Leff has worked with senior leaders of Fortune 1000 companies to gain critical insights from data to drive customer experience and optimize business operations. In addition, Ms. Leff has built and run global sales teams and brings experience and expertise in sales management and sales execution. Ms. Leff is also the Founder of Girls Who Solve, a STEM education program for high school girls that focuses on how data science and technology can be used to solve a range of challenges in both for-profit and nonprofit organizations.
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Steve Pemberton – Mr. Pemberton has served on the Board since March 2021. Mr. Pemberton has served as chief human resources officer of Workhuman,a provider of cloud-based human capital management solutions since December 2017. In such capacity, Mr. Pemberton works with HR leaders and senior management executives worldwide to help build inspiring workplaces where every employee feels recognized, respected, and appreciated for who they are and what they do. He champions and promotes the Workhuman movement to inspire HR leaders to embrace more humanity and foster a sense of purpose in the workplace. Prior to joining Workhuman, Mr. Pemberton served as VP Diversity and Inclusion, Chief Diversity Officer at Walgreens Boots Alliance (and as Chief Diversity Officer at its predecessor Walgreens) from 2011 to 2017 and as VP, Chief Diversity Officer at Monster.com from 2005 to 2010. In 2015, Mr. Pemberton was appointed by United States Secretary of Labor Thomas Perez to serve on the Advisory Committee for the Competitive Integrated Employment of People with Disabilities. Mr. Pemberton earned his undergraduate and graduate degrees at Boston College and serves on several nonprofit boards, including UCAN and Disability:IN, in addition to his own A Chance in the World Foundation, the non-profit he founded to help young people aging out of the foster care system.
Wallace D. Ruiz – Mr. Ruiz has served on the Board since May 2018. Mr. Ruiz Chief Executive Officer served as the Chief Financial Officer of Inuvo, Inc. (NYSE: INUV), anadvertising technology company based in Little Rock, AR since June 2010. Mr. Ruiz was selected for appointment to the Board for his experience with public companies as well as his accounting skills. Mr. Ruiz is a Certified Public Accountant in the State of New York. He is a graduate of St. John’s University with a degree in computer science and Columbia University with a MBA in finance and accounting.
Family Relationships
There are no family relationships among our directors and/or executive officers.
Director Independence
Our Board has reviewed the materiality of any relationship that each of our directors has with us, either directly or indirectly. Based on this review, our Board has affirmatively determined that each of Mr. Ruiz, Mr. Pemberton, Ms. Ms. Leff, and Ms. Mbeki, current members of our Board, meet the independence requirements under the Listing Rules of The Nasdaq Stock Market LLC (the “Nasdaq Listing Rules”).
Board Committees
The Board is asking stockholders to approvecurrently has the Authorized Share Increase from 31,250,000 to 250,000,000 sharesfollowing standing committees: the Audit Committee, the Compensation Committee, and a corresponding amendment to the Certificate of Incorporation to effect the Authorized Share Increase (the “Amendment”).Nominating Committee.
Purpose ofThe following table identifies the Authorized Share Increaseindependent and non-independent current Board and committee members:
Pursuant to
Name | Audit | Compensation | Nominating | Independent | ||||
Evan Sohn | ||||||||
Miles Jennings | ||||||||
Deborah Leff | X | X | X | |||||
Granger Whitelaw | ||||||||
Wallace D. Ruiz | Chairman | X | ||||||
Lillian Mbeki | X | X | X | X | ||||
Steve Pemberton | X | X |
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Board and Committee Meetings
During the termsyear ended December 31, 2023, the Board had nine meetings, the Audit Committee had four meetings, the Compensation Committee had two meetings, and the Nominating Committee had zero meetings.
There were no directors (who were incumbent at the time), who attended fewer than 75 percent of the Certificatesaggregate total number of DesignationBoard meetings and meetings of Preferred Stockthe Board committees of which the director was a member during the applicable period.
Audit Committee
Management has the primary responsibility for the financial statements and the 2019 Warrants,reporting process, including the Company is required to reserve and maintain at any timesystem of internal controls. The Audit Committee reviews the reserve of shares of Common Stock in the amount equal to 200%Company’s financial reporting process on behalf of the number of shares issuable upon conversionBoard and administers our engagement of the Preferred Stock or exerciseindependent registered public accounting firm. The Audit Committee meets with the independent registered public accounting firm, with and without management present, to discuss the results of its examinations, the evaluations of our internal controls, and the overall quality of our financial reporting.
Audit Committee Financial Expert
Our Board has determined that Mr. Ruiz is qualified as an Audit Committee Financial Expert, as that term is defined under the rules of the 2019 Warrants, as applicable. The Company is currently notSecurities and Exchange Commission (the “SEC”) and in compliance with these reserve requirements and is seeking waiversthe Sarbanes-Oxley Act.
Compensation Committee
The function of the non-complianceCompensation Committee is to determine the compensation of our executive officers. The Compensation Committee has the power to set performance targets for determining annual bonuses payable to executive officers and may review and make recommendations with respect to stockholder proposals related to compensation matters.
Nominating Committee
The responsibilities of the Nominating Committee include the identification of individuals qualified to become Board members, the selection of nominees to stand for election as directors, the oversight of the selection and composition of committees of the Board, establishing procedures for the nomination process, oversight of possible conflicts of interests involving the Board and its members, developing corporate governance principles, and the resulting cash penalties estimated to total approximately $6 million. The Company needs to implement the Authorized Share Increase in order to regain compliance with these reserve requirements and avoid future penalties. Based on 1,248,987 shares of Preferred Stock and 470,940 2019 Warrants outstanding asoversight of the Record Date,evaluations of the Board and management. The Nominating Committee has not established a policy with regard to the numberconsideration of shares of Common Stock reserved for issuance underany candidates recommended by stockholders. If we receive any stockholder recommended nominations, the 2017 Equity Inventive PlanNominating Committee will carefully review the recommendation(s) and issuable under the outstanding non-plan equity awards, the Company needs to have at least 33,771,059 shares of authorized Common Stock.
consider such recommendation(s) in good faith.
Additionally, as stated in our Quarterly Report on Form 10-Q for the three months ended September 30, 2019,Board Diversity
While we do not have adequate working capital,a formal policy on diversity, our Board considers diversity to include the skill set, background, reputation, type and length of business experience of our available cash isBoard members as well as a particular nominee’s contributions to that mix. Our Board believes that diversity promotes a variety of ideas, judgments and considerations to the benefit of our Company and stockholders. Although there are many other factors, the Board primarily focuses on public company board experience, knowledge of the recruiting industry, or background in finance or technology, and experience operating growing businesses. Our current Board Diversity Matrix can be found at our investor website at https://investors.recruiter.com/board-diversity-matrix.
Board Leadership Structure
Our Board has not sufficient,adopted a formal policy regarding the separation of the offices of Chief Executive Officer and Chairman of the Board. Rather, the Board believes that different leadership structures may be appropriate for our Company at different times and under different circumstances, and it prefers flexibility in making this decision based on its evaluation of the relevant facts at any given time.
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Board Role in Risk Oversight
Our Board bears responsibility for overseeing our risk management function. Our management keeps the Board apprised of material risks and provides to fund our operations duringdirectors access to all information necessary for them to understand and evaluate the next 12 months. Our ability to continue to operate and groweffect of these risks, individually or in the aggregate, on our business, is dependent upon obtaining new financing. The costand how management addresses them. Our Executive Chairman works closely together with the Board once material risks are identified on how to best address such risks. If the identified risks present an actual or potential conflict with management, our independent directors may conduct the assessment.
Code of any new financing may be prohibitive. If we are unableEthics
Our Board has adopted a Code of Ethics that applies to arrange new financing, we will not have sufficient cash to support our operations and will be forced to delay, scale back, or eliminate some or all of our development activities or perhaps cease operations. We anticipateemployees, including our Chief Executive Officer and Chief Financial Officer. Although not required, the Code of Ethics also applies to our directors. The Code of Ethics provides written standards that we believe are reasonably designed to deter wrongdoing and promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships, full, fair, accurate, timely and understandable disclosure and compliance with laws, rules and regulations, including insider trading, corporate opportunities and whistleblowing or the prompt reporting of illegal or unethical behavior. We will need approximately $5,518,000provide a copy of our Code of Ethics, without charge, upon request in writing to supportRecruiter.com Group, Inc. at 123 Farmington Avenue Suite 252 Bristol CT 06010, Attention: Corporate Secretary.
Delinquent Section 16(a) Reports
Section 16(a) of the Exchange Act requires our operationsdirectors, executive officers, and meetpersons who own more than 10% of our obligations overCommon Stock to file initial reports of ownership and changes in ownership of our Common Stock with the next 12 months, without consideringSEC. These individuals are required by the Company’s monthly gross profitregulations of the SEC to furnish us with copies of all Section 16(a) forms they file. Based solely on a review of the copies of the forms furnished to us none of our directors, executive officers, and without taking into accountpersons who own more than 10% of our Common Stock failed to comply with Section 16(a) filing requirements, except an unreported grant of stock options for each of Messrs. Sohn, Jennings, Pemberton, and Heath and Ms. Krandel, one late reported open market purchase by Mr. Sohn, one unreported open market purchase of units by Messrs. Ruiz and Heath in connection with our July 2021 underwritten public offering, and a late Form 3 filing for each of Messrs. Pemberton and Heath.
Hedging Policy
We do not currently have any practices or policies regarding hedging or offsetting any decrease in the timingmarket value of collectionour equity securities.
Communication with our Board
Although we do not have a formal policy regarding communications with the Board, stockholders may communicate with the Board by writing to us at Recruiter.com Group, Inc., 500 Seventh Avenue, New York, New York 10018, Attention: Corporate Secretary. Stockholders who would like their submission directed to a member of receivables or payment of payables. To date, private equity offerings have been our primary source of liquiditythe Board may so specify, and we expect to fund future operations through additional private or public equity offerings. If the Certificate of Incorporation is not amended to effect the Authorized Share Increase, wecommunication will be severely restricted in our ability to issue equity securities. Because of the reserve requirements applicable to the Company, we cannot raise capital without violating the rights of investors entitled to the reserve.forwarded, as appropriate.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” ALL OF THE NOMINEES FOR ELECTION AS DIRECTORS.
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PROPOSAL 2. RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The additional sharesAudit Committee of Common Stock may be issued from time to timethe Board has appointed Salberg & Company, P.A. (“Salberg”) as our Board may determine without further action byindependent registered accounting firm for the stockholders, except asfiscal year ending December 31, 2023 and for the fiscal year ending December 31, 2024. We are not required pursuant to seek stockholder approval for the Certificateappointment of Designation of Series D Preferred Stockour independent registered public accounting firm, however, the Audit Committee and the related Securities Purchase Agreement. Other than the holders of our Series D Preferred Stock, none of our stockholders currently possess, nor will upon the adoption of the Amendment acquire, preemptive rights which would entitlefull Board believe it is sound corporate practice to seek such persons, as a matter of right, to subscribe for the purchase of any of our securities.
Effects of the Authorized Share Increase
approval. If the Authorized Share Increaseappointment is effected,not ratified, the numberAudit Committee will investigate the reasons for stockholder rejection and will re-consider the appointment. Even if the selection is ratified, the Audit Committee in its discretion may direct the appointment of authorized shares of Common Stock will be increased from 31,250,000 to 250,000,000 shares. The total number of authorized shares of the Company will be 260,000,000, consisting of 250,000,000 authorized shares of Common Stock and 10,000,000 authorized shares of Preferred Stock. The Amendment will not change the par value of the shares of the Common Stock, affect the number of shares of Common Stock outstanding or the rights or privileges of holders of shares of the Common Stock outstanding, or have any effect on any outstanding securities, including outstanding equity awards that are exercisable, convertible or exchangeable for shares of Common Stock.
A form of the Certificate of Amendment to the Certificate of Incorporation that would be filed with the Delaware Secretary of State to effect the Authorized Share Increase is set forth inAnnex A (the “Certificate of Amendment”). If the stockholders approve the Authorized Share Increase and the Amendment, the Company intends to file the Certificate of Amendment with the Secretary of State of the State of Delaware as soon as practicable following the Special Meeting, and the Certificate of Amendment will be effective upon such filing. However, ifa different independent registered public accounting firm at any time prior toduring the effectiveness of the filing of the Certificate of Amendment with the Delaware Secretary of State, the Boardyear if it determines that itsuch change would not be in the best interests of the Companyus and its stockholders to effect the Authorized Share Increase, in accordance with Delaware law and notwithstanding the approval of the Authorized Share Increase and the Amendment by the stockholders, the Board may abandon the Authorized Share Increase and the Amendment without further action by theour stockholders.
IfRepresentatives of Salberg are not expected to be present at the stockholders approve the Agreement and Plan of Merger pursuant to whichAnnual Meeting. However, we will reincorporate fromprovide contact information for Salberg to any stockholders who would like to contact the State of Delawarefirm with questions.
Fees Billed to the StateCompany in fiscal years 2023 and 2022
The following table provides detail about fees for professional services rendered to us by Salberg & Company, P.A., our independent registered public accounting firm engaged to provide accounting services for the fiscal year ended December 31, 2023 and 2022.
Fiscal Year Fiscal Year Ended Ended December 31, December 31, 2023 2022 Audit fees Audit related fees Tax fees All other fees Total $ 132,100 $ 159,800 5,900 9,300 - - - - $ 138,000 $ 169,100
Audit Fees - This category includes the audit of Nevada (Proposal 2)our annual financial statements, review of financial statements included in our quarterly reports onForm 10-Q and if the Reincorporation is implemented, the Authorized Share Increase described in this Proposal 1 will not be implemented regardless of its approvalservices that are normally provided by the stockholders.
Plansindependent registered public accounting firm in connection with engagements for the Additional Authorized Shares of Common Stock
Other than potential future privatethose fiscal years. This category also includes advice on audit and accounting matters that arose during, or public equity offerings, we presently have no specific plans, nor have we entered into any agreements, arrangements or understandings with respect to the additional shares of authorized Common Stock that will become available for issuance as a result of, the Authorized Share Increase.audit or the review of interim financial statements.
No Appraisal RightsAudit-Related Fees - This category consists of assurance and related services by the independent registered public accounting firm that arereasonably related to the performance of the audit or review of our financial statements and are not reported above under “Audit Fees.” The services for the fees disclosed under this category include consultation regarding our correspondence with the Securities and Exchange Commission, review of registration statements and other accounting consulting.
UnderTax Fees - This category consists of professional services rendered for tax compliance and tax advice. The services for the Delaware General Corporation Law,fees disclosed under thiscategory include tax return preparation and technical tax advice.
All Other Fees - This category consists of fees for other miscellaneous items.
Policy on Pre-Approval of Audit and Permissible Non-audit Services of Independent Auditors
Consistent with the SEC policies regarding auditor independence, our stockholders are not entitledBoard has responsibility for appointing, setting compensation and overseeing the work of the independent auditor. In recognition of this responsibility, our Board has established a policy to dissenter’s rights or appraisal rights with respectpre-approve all audit and permissible non-audit services provided by the independent auditor.
Prior to engagement of the independent auditor for the next year’s audit, management will submit an aggregate of services expected to be rendered during that year for each of the following four categories of services to the Authorized Share Increase described in this Proposal 1 and we will not independently provide our stockholders with any such rights.Board for approval.
Interest of Certain Persons in Matters to be Acted Upon
No officer or director has any substantial interest, direct or indirect, by security holdings or otherwise, in the Authorized Share Increase that is not shared by all of our other stockholders.
Vote Required
Under Delaware law, the affirmative vote of the holders of a majority of the outstanding shares entitled to vote at the Special Meeting is required to adopt and approve the amendment to our Certificate of Incorporation to effect the Authorized Share Increase. In addition, the affirmative vote of the holders of a majority of the outstanding shares of Common Stock entitled to vote (voting as a separate class) is required. An abstention with respect to the Authorized Share Increase proposal will have the same effect as a vote “Against” the proposal.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR”“FOR” THIS PROPOSAL 1.
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PROPOSAL 2. APPROVAL OF THE REINCORPORATION
The Board has approved, subject to stockholder approval, and is asking stockholders to approve, an Agreement and Plan of Merger pursuant to which the Company will merge with and into Recruiter.com Group, Inc., a Nevada corporation and a wholly-owned subsidiary of the Company, resulting in reincorporation from the State of Delaware to the State of Nevada (the “Reincorporation”). The Agreement and Plan of Merger is attached hereto asAnnex B and should be read in its entirety.
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The Reincorporation will become effective upon the filing of the requisite merger documents in Nevada and Delaware, which filings are expected to occur as promptly as practicable after the requisite stockholder approval is obtained. A copy of the proposed Articles of Incorporation and bylaws are attached hereto asAnnex C andAnnex D, respectively.
Purpose of the Reincorporation
The sole purpose of the Reincorporation is to reduce the Company’s future tax burden, in particular franchise taxes. In Delaware, the amount of such tax payments is determined based, in part, on the total number of shares of stock the Company is authorized to issue and the number of shares of stock outstanding. The Company’s current capital structure requires it to maintain a large number of authorized but unissued shares of Common Stock, which results in higher franchise taxes in Delaware. If the Authorized Share Increase set forth in Proposal 1 of this proxy statement is implemented, assuming no change in our assets or shares outstanding, we estimate that we will be required to pay approximately $200,000 annually in future Delaware franchise taxes. This amount is prohibitive and not in the interests of the Company’s stockholders. Nevada does not have a franchise tax and the annual fees are not material. Thus effecting the Reincorporation will allow the Company to maintain its capital structure without depleting its cash resources. Therefore, the Board believes that it is in the best interest for the Company to reincorporate in the State of Nevada from our present domicile of Delaware. See “Significant Differences between the Corporate Laws of Delaware and Nevada.”
Effects of the Reincorporation
Implementing the Reincorporation will have, among other things, the following effects:
YOU WILL NOT BE REQUIRED TO EXCHANGE YOUR EXISTING STOCK CERTIFICATES FOR STOCK CERTIFICATES OF RECRUITER.COM GROUP, INC. (NEVADA) IN CONNECTION WITH THE REINCORPORATION. HOWEVER, YOU MAY EXCHANGE YOUR STOCK CERTIFICATES IF YOU SO CHOOSE.
Our Common Stock is currently quoted on the OTCQB. We believe that following the effective date of the Reincorporation, our Common Stock will also be quoted on the OTCQB. However, there is no assurance that we will continue to meet the continued eligibility requirements under the OTCQB standards.
The Reincorporation will not result in any change in the corporate name, business, management, fiscal year, accounting, location of the principal executive offices, assets or liabilities of our Company.
Stockholders should note that approval of the Reincorporation described in this Proposal 2 would also constitute approval of the assumption by Recruiter.com Group, Inc. (Nevada) of the Company’s options and other rights to purchase capital stock. Stockholder approval would also constitute approval of the assumption by Recruiter.com Group, Inc. (Nevada) of the Company’s 2017 Equity Incentive Plan. The Company’s other employee benefit arrangements would also be continued by Recruiter.com Group, Inc. (Nevada) upon the terms and subject to the conditions in effect prior to the effective time of the Reincorporation. Prior to the effective time of the Reincorporation, the Company will seek to obtain any required consents to the Reincorporation from any third parties with whom it has material contractual arrangements. Assuming such consents are obtained, the Company’s rights and obligations under such material contractual arrangements will be assumed by Recruiter.com Group, Inc. (Nevada).
The Board has the authority to abandon the merger and the Reincorporation even after approval by the stockholders.
Significant Differences between the Corporate Laws of Delaware and Nevada
The Company is incorporated under the laws of the State of Delaware. If the Reincorporation is consummated, we will reincorporate under the laws of the State of Nevada and our stockholders, whose rights currently are governed by Delaware law and our Certificate of Incorporation and our Bylaws created pursuant to Nevada law, will be governed by Delaware law and Articles of Incorporation and Bylaws which have been created under Nevada law.
Although the Delaware and Nevada corporate statutes are similar, certain differences exist. Set forth below is the summary of the most significant differences between the two. This summary is not intended to be complete, and stockholders are urged to refer to the General Corporation Law of the State of Delaware and Chapters 78 and 92A of the Nevada Revised Statutes to understand how these laws apply to us.
Amendments to Charter or Bylaws. In general, both Delaware law and Nevada law require the approval of the holders of a majority of all outstanding shares entitled to vote to approve proposed amendments to certificate/articles of incorporation. Both Delaware law and Nevada law also provide that in addition to the vote above, the vote of a majority of the outstanding shares of a class may be required to amend the Certificate of Incorporation or articles of incorporation. Neither state requires stockholder approval for the board of directors of a corporation to fix the voting powers, designation, preferences, limitations, restrictions and rights of a class of stock provided that the corporation’s organizational documents grant such power to its board of directors. Both Nevada law and Delaware law permit, in general, the number of authorized shares of any such class of stock to be increased or decreased (but not below the number of shares then outstanding) by the board of directors unless otherwise provided in the articles of incorporation or resolution adopted pursuant to the Certificate of Incorporation, respectively. However, the Nevada law allows the board of directors, without stockholder approval, to increase or decrease the number of authorized shares of capital stock if the number of outstanding shares is proportionately increased or decreased. Delaware law does not have a similar provision. In addition, Nevada law permits a Nevada corporation to amend the designation of any class or series, the number of the class or series and the voting powers, designations, preferences, limitations, restrictions and relative rights of any class or series of preferred stock without the approval of common stockholders and holds of other classes or series of outstanding preferred stock junior to the ones being amended. Delaware law requires a majority of outstanding shares entitled to vote.
Removal of Directors. Under the Delaware law, directors of a corporation without a classified board may be removed with or without cause by the holders of a majority of shares then entitled to vote in an election of directors. Under Nevada law, any one or all of the directors of a corporation may be removed by the holders of not less than two-thirds of the voting power of the issued and outstanding stock. Nevada law does not distinguish between removal of directors with and without cause and removal of directors when the board of directors is divided into classes. Accordingly, removal is harder in Nevada when the board is not classified. However, if the board of directors is classified, Delaware law provides that a director can be removed only for cause by the holders of a majority of the shares then entitled to vote in an election of directors unless the Certificate of Incorporation provides otherwise.
Special Meetings of Stockholders. Nevada law provides that the entire board of directors, any two directors or the president may call a special meeting of stockholders, unless otherwise provided in the articles of incorporation or bylaws. Delaware law permits special stockholders’ meetings to be called by the board of directors or by any other person authorized in the Certificate of Incorporation or bylaws to call a special stockholders’ meeting.
Limitation on Personal Liability of Directors and Officers. A Delaware corporation is permitted to adopt provisions in its Certificate of Incorporation limiting or eliminating the liability of a director to the corporation and its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such liability does not arise from certain proscribed conduct, including breach of duty of loyalty, acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or liability to the corporation based on unlawful distributions or improper personal benefit. Our Certificate of Incorporation currently limits the liability of directors of the Company to the fullest extent permitted by Delaware law. Delaware law provides no protection to officers. Nevada law provides that a director or officer is not liable to the corporation or its stockholders for any act or failure to act unless it is proven that his or her act or failure to act constitutes a breach of fiduciary duty and the breach of that duty involved intentional misconduct, fraud, or a knowing violation of law. The limitation of liability provision under Nevada law applies automatically, unless the articles of incorporation or bylaws provide otherwise, to both directors and officers and applies to the breach of any fiduciary duty, including the duty of loyalty. Thus, after the Reincorporation is consummated the limitation on liability currently afforded to our directors will extend to our officers and both directors and officers will enjoy a higher level of liability protection under Nevada law.
Indemnification of Officers and Directors and Advancement of Expenses. Delaware and Nevada law have substantially similar provisions that permit indemnification by a corporation of officers, directors, employees and agents where they acted in good faith and in a manner which they reasonably believed to be in or not opposed to the best interests of the corporation, except that Nevada law provides broader indemnification in connection with stockholder derivative lawsuits. A corporation is free to indemnify a director or officer if the director or officer is not liable under this provision and regardless of any determination of the director’s or officer’s good faith. Delaware and Nevada law differ in their provisions for advancement of expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding. Delaware law provides that expenses incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of the action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined that he or she is not entitled to be indemnified by the corporation. A Delaware corporation has the discretion to decide whether or not to advance expenses, unless its Certificate of Incorporation or bylaws provides for mandatory advancement. Our Certificate of Incorporation currently provides for a mandatory advancement of expenses of directors and officers, subject to receipt of an undertaking to repay the amounts advanced if it shall ultimately be determined that such directors or officers are not entitled to be indemnified by the Company. Under Nevada law, the articles of incorporation, bylaws or an agreement made by the corporation may provide that the corporation must pay advancements of expenses in advance of the final disposition of the action, suit or proceedings upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined that he or she is not entitled to be indemnified by the corporation. Thus, a Nevada corporation may have no discretion to decide whether or not to advance expenses to directors or officers. We expect to provide for the mandatory advancement of expenses of directors and officers in the bylaws under Nevada law.
Dividends, Redemptions and Repurchases. Nevada law is less restrictive than Delaware law with respect to when dividends may be paid. Under Delaware law, unless further restricted in the Certificate of Incorporation, a corporation may declare and pay dividends, out of surplus, or if no surplus exists, out of net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year (provided that the amount of capital of the corporation is not less than the aggregate amount of the capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets). In addition, Delaware law provides that a corporation may redeem or repurchase its shares only if the capital of the corporation is not impaired and such redemption or repurchase would not impair the capital of the corporation. Nevada law provides that no distribution (including dividends on, or redemption or repurchases of, shares of capital stock) may be made if, after giving effect to such distribution, the corporation would not be able to pay its debts as they become due in the ordinary course of business, or, except as specifically permitted by the articles of incorporation, the corporation’s total assets would be less than the sum of its total liabilities plus the amount that would be needed at the time of a dissolution to satisfy the preferential rights of preferred stockholders.
Actions by Written Consent of Stockholders. Nevada law and Delaware law each provide that, unless the Articles/Certificate of Incorporation provides otherwise, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if the holders of outstanding stock having at least the minimum number of votes that would be necessary to authorize or take such action at a meeting consents to the action in writing. Unlike Delaware law, Nevada law does not require the corporation to give prompt notice of the taking of corporate action without a meeting by less than unanimous written consent to those stockholders who did not consent in writing. However, Rule 14c-2 promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”) requires that an information statement prepared in compliance with the Exchange Act rules is filed with the Securities and Exchange Commission (the “SEC”) and mailed to such non-consenting stockholders.
Stockholder Vote for Mergers and Other Corporation Reorganizations. In general, both jurisdictions require authorization by an absolute majority of outstanding shares entitled to vote, as well as approval by the board of directors, with respect to the terms of a merger or a sale of substantially all of the assets of the corporation. Delaware law does not require a stockholder vote of the surviving corporation in a merger (unless the corporation provides otherwise in its Certificate of Incorporation) if: (i) the merger agreement does not amend the existing Certificate of Incorporation; (ii) each share of stock of the surviving corporation outstanding immediately before the effective date of the merger is an identical outstanding share after the merger; and (iii) either no shares of common stock of the surviving corporation and no shares, securities or obligations convertible into such stock are to be issued or delivered under the plan of merger, or the authorized unissued shares or shares of common stock of the surviving corporation to be issued or delivered under the plan of merger plus those initially issuable upon conversion of any other shares, securities or obligations to be issued or delivered under such plan do not exceed 20% of the shares of common stock of such constituent corporation outstanding immediately prior to the effective date of the merger. Nevada law does not require a stockholder vote of the surviving corporation in a merger under substantially similar circumstances.
Anti-Takeover Provisions/Restrictions on Business Combinations. Both the Delaware law and the Nevada law contain provisions restricting the ability of a corporation to engage in business combinations with an interested stockholder. The restrictions prohibit a corporation, except in limited circumstances, from engaging in a business combination with any interested stockholder for a three-year period following the date such stockholder became an interested stockholder. Under Nevada law an interested stockholder is a person who holds 10% or more of the outstanding voting stock, which was acquired other than solely through an action by the corporation. Under Delaware law, the definition of interested stockholder is similar except that a holder of 15% or more of the voting stock is an interested stockholder. Both Delaware and Nevada law permit a corporation to opt out of application of the statutory provisions limiting business combinations with interested stockholders by making a statement to that effect in its certificate or articles of incorporation. We did not opt out of application of the statutory provisions in our Certificate of Incorporation and do not intend to do so in the Nevada Articles of Incorporation.
Significant Differences between the Charter and Bylaws of Recruiter.com Group, Inc. Before and After the Effective Date of Reincorporation
Our Certificate of Incorporation currently provides that the Company is authorized to issue 31,250,000 shares of Common Stock. Under the Articles of Incorporation to be filed with the Secretary of State of Nevada in connection with the Reincorporation, we will be authorized to issue 250,000,000 shares of common stock, par value $0.0001 per share. See “Proposal 1 — Approval of the Authorized Share Increase” for further information.
United States Federal Income Tax Consequences
The following discussion of the material U.S. federal income tax consequences to our stockholders of the Reincorporation is based upon the Internal Revenue Code of 1986 (the “Code”), Treasury regulations promulgated thereunder, Internal Revenue Service (“IRS”) rulings and pronouncements, and judicial decisions, all as in effect as of the date of this proxy statement, and all of which are subject to change, possibly with retroactive effect. Any such change could alter the tax consequences described herein. We have not sought and will not seek an opinion of counsel or a ruling from the IRS regarding the federal income tax consequences of the Reincorporation.
This discussion is for general information purposes only to stockholders who hold their shares as capital assets. This discussion does not address every aspect of U.S. federal income taxation that may be relevant to a particular company stockholder in light of the stockholder’s particular circumstances or to persons who are otherwise subject to special tax treatment, including, without limitation: (i) a partnership, subchapter S corporation or other pass-through entity; (ii) dealers in securities; (iii) banks or other financial institutions; (iv) insurance companies; (v) mutual funds; (vi) tax exempt organizations or pension funds; (vii) a foreign person, foreign entity or U.S. expatriate; (viii) persons who may be subject to the alternative minimum tax provisions of the Code; (ix) a stockholder whose functional currency is not the U.S. dollar; (x) persons who acquired their common stock in connection with stock option or stock purchase plans or in other compensatory transactions; or (xi) persons who hold their common stock as part of a hedging, straddle, conversion or other risk reduction transaction. This discussion does not address the tax consequences to any holders of our options, warrants or convertible debt. The state and local tax consequences of the Reincorporation may vary significantly as to each stockholder, depending upon the jurisdiction in which such stockholder resides. You are urged to consult your own tax advisors to determine the particular consequences to you.
We believe that the merger of the Company with and into Recruiter.com Group, Inc. (Nevada), which will result in the Reincorporation, will qualify as a reorganization, under section 368(a)(1)(F) of the Code. As a result, the material federal income tax consequences of the Reincorporation, would be as follows: (i) we and Recruiter.com Group, Inc. (Nevada) will not recognize any gain or loss as a result of the Reincorporation; (ii) no gain or loss will be recognized by holders of common stock on the conversion of the Common Stock into the common stock of Recruiter.com Group, Inc. (Nevada); (iii) the aggregate adjusted tax basis of the common stock and preferred stock of Recruiter.com Group, Inc. (Nevada) received by a stockholder in connection with the Reincorporation will be the same as the aggregate adjusted tax basis of the Common Stock or Preferred Stock converted in connection with the Reincorporation; and (iv) the holding period, for U.S. federal income tax purposes, for the Recruiter.com Group, Inc. (Nevada) common stock received in connection with the Reincorporation by a stockholder will include the period during which the holder held the converted Common Stock or Preferred Stock.
If the Reincorporation fails to qualify for tax-free treatment, either under section 368(a)(1)(F) or any other provision of the Code, then stockholders may recognize gain or loss for U.S. federal income tax purposes equal to the difference between the fair market value of the shares of stock received in connection with the Reincorporation and the stockholders’ adjusted tax basis in the shares stock converted in connection with the Reincorporation. Further, we would recognize taxable gain as if we sold all of our assets, subject to our liabilities, at fair market value.
Reporting Requirements.Each stockholder who qualifies as a “significant holder” that receives stock in connection with the Reincorporation will be required to file a statement with his, her or its federal income tax return setting forth his, her or its tax basis in the stock surrendered and the fair market value of the stock of Recruiter.com Group, Inc. (Nevada), if any, received in the Reincorporation, and to retain permanent records of these facts relating to the Reincorporation. A “significant holder” is a company stockholder who, immediately before the merger owned at least five percent (by vote or value) of our outstanding stock or owned our securities with an adjusted tax basis of $1,000,000 or more.
Our stockholders are urged to consult their own tax advisors regarding the tax consequences to them of the reincorporation, including the applicable federal, state, local and foreign tax consequences.
No Material Accounting Implications
Effecting the Reincorporation will not have any material accounting implications.
No Appraisal Rights
Under the Delaware General Corporation Law, our stockholders are not entitled to dissenter’s rights or appraisal rights with respect to the Reincorporation described in this Proposal 2 and we will not independently provide our stockholders with any such rights.
Interest of Certain Persons in Matters to be Acted Upon
Other than as described in “Significant Differences between the Corporate Laws of Delaware and Nevada – Limitation on Personal Liability of Directors and Officers,” no officer or director has any substantial interest, direct or indirect, by security holdings or otherwise, in the Reincorporation that is not shared by all of our other stockholders.
Vote Required
Approval of the Reincorporation requires the affirmative vote of the holders of a majority of the outstanding shares entitled to vote. Abstentions will have the same effect as a vote “against” on the outcome of this Proposal 2.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR” THIS
PROPOSAL 2.
12
PROPOSAL 3. APPROVAL OF THE ADJOURNMENT
General
The Company is asking stockholders to approve, if necessary, adjournment of the SpecialAnnual Meeting to solicit additional proxies in favor of the Authorized Share IncreaseDirector Appointments and/or the Reincorporation.Auditor Appointment. Any adjournment of the SpecialAnnual Meeting for the purpose of soliciting additional proxies will allow stockholders who have already sent in their proxies to revoke them at any time prior to the time that the proxies are used.
Vote Required
The affirmative vote of a majority of the voting power present or represented by proxy is required to approve the Adjournment proposal. Abstentions represent the voting power present under the Company’s bylaws, and accordingly will have the same effect as a vote ‘against” on“AGAINST” the outcome of this Proposal 3.5.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR”“FOR” THIS
PROPOSAL 3.
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EXECUTIVE AND DIRECTOR COMPENSATIONSecurity Ownership
Summary Compensation Table
The following information is related to all plan and non-plan compensation awarded to, earned by, or paid by us for the years ended December 31, 2023 and December 31, 2022, for all individuals serving as our principal executive officer or acting in a similar capacity during the year ended December 31, 2023, and our two most compensated executive officers, other than the principal executive officer, serving at December 31, 2023 whose total compensation exceeded $100,000 (the “Named Executive Officers”).
Summary Compensation Table Non-Equity Name and Stock Option Incentive Plan All Other Principal Salary Bonus Awards Awards Compensation Compensation Position Year ($) ($) ($)(1) ($)(1) ($) ($) Total ($) Evan Sohn 2023 Executive Chairman and Chief Executive Officer (2) 2022 Miles Jennings 2023 President and Chief Operating Officer (3) 2022 Judy Krandel 2023 Chief Financial Officer (4) 2022 417,741 140,000 - - - - - 140,000 194,000 - - 245,436 90,000 - 529,436 182,000 - - - - - 182,000 208,584 - - 123,293 45,000 - 376,877 - - - - - - - 236,952 - - 96,596 84,193 -
(1) | The amounts in this column represent the fair value of each award as of the grant date as computed in accordance with FASB ASC Topic 718 and the SEC disclosure rules. Pursuant to SEC rules, the amounts shown disregard the impact of estimated forfeitures related to service-based vesting conditions and do not reflect the actual economic value realized by the Named Executive Officer. The assumptions used in calculating the grant date fair value of stock awards and option awards may be found in Note 1 to our audited financial statements included in this Annual Report on Form 10-K. |
(2) | Mr. Sohn served as our Chief Executive Officer from June 2020 until June 2023, and Executive Chairman until March 2024 |
(3) | Mr. Jennings has served as our President and Chief Operating Officer from June 2020 until March 2024. He served as Chief Executive Officer from October 2017 to June 2020. He served as Chief Executive Officer and Interim Chief Financial Officer from June 2023 until March 2024. |
(4) | Ms. Krandel served as our Chief Financial Officer from June 2020 until September 2023. |
Named Executive Officer Employment Agreements
In February 2024, the Board of Certain Beneficial OwnersDirectors entered into an agreement with Evan Sohn and ManagementMiles Jennings to eliminate the severance and certain bonus and target portions of their Employment Agreements in exchange for equity compensation
Executive Incentive Program
Performance Bonuses
For fiscal 2023, each of our named executive officers was eligible to receive an award under the annual executive cash incentive program as follows per the terms of their respective employment agreements: (i) up to 150% of annual base salary for Mr. Sohn, and (ii) up to 75% of annual base salary for Mr. Jennings. The performance bonuses, as well as severance payments, were canceled in lieu of equity grants.
Equity Awards
The Compensation Committee has the authority to grant discretionary equity awards to our executive officers, including our non-statutory stock options, under the 2017 Plan and our 2021 Equity Incentive Plan (the “2021 Plan”).
In Fiscal year 2022 and 2023, the Compensation Committee approved the following grants to our Named Executive Officers, including 125,000 option shares to Miles Jennings on 8/30/2022, 250,000 option shares to Evan Sohn on 8/30/2022, 75,000 option shares to Judy Krandel on 8/30/2022 and an additional 50,000 option shares on 6/8/2023.
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Outstanding Equity Awards at December 31, 2023
The following table sets forth certain information regarding unexercised options, shares that have not vested, and equity incentive plan awards for each Named Executive Officer as of December 31, 2023:
Outstanding Equity Awards At Fiscal Year-End Option Awards Stock Awards Number of Securities Underlying Unexercised Options # Exercisable Number of Securities Underlying Unexercised Options # Unexercisable Option Exercise Price Option Expiration date Number of shares of stock that have not vested Market Value of Shares of Stock That Have Not Vested Evan Sohn 1/31/2024 5/12/2024 12/21/2024 9/12/2026 8/29/2027 Miles Jennings 12/21/2024 9/12/2026 8/29/2027 1,158 - 132.00 - - 12,031 - 240.00 - - 1,021 - 54.38 - - 6,667 - 68.85 - - 11,115 5,552 (1) 19.65 - - - - 1,362 - 54.38 - - 6,667 - 68.85 - - 5,555 2,778 (1) 19.65 - -
(1) | Options vest monthly over a two-year period in equal installments, ending on August 30, 2024 |
Compensation of Non-Employee Directors
We do not compensate employees for serving as members of our Board. Our non-employee directors receive compensation for their service as directors and members of committees of the Board, consisting of cash and equity awards. In January 2021, our Compensation Committee approved an annual retainer to be paid to each non-employee director in the amount of $20,000 in cash. In January 2022, the Board also approved an incremental stipend of $5,000 to all committee chairpersons, $3,500 for all non-chairperson members of the audit committee, and $2,500 for all non-chairperson members of the nominating and compensation committee. With respect to our non-employee directors, the Board approved one-year stock options to purchase 15,000 shares of our Common Stock at an exercise price of $2.40 for the year 2021. The options shall vest in equal quarterly amounts beginning on the effective date and ending on the first anniversary of the effective date of the grant. In addition, directors are reimbursed for reasonable expenses incurred in attending meetings and carrying out duties as board and committee members. Under the 2017 and 2021 Plans, our non-employee directors receive grants of stock options as compensation for their services on the Board.
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For the year ended 2023, our non-employee directors were compensated as follows in the table below:
Fees Earned or All Paid in Option Other Cash Awards Compensation Total Name (1) Year ($) ($)(2) ($) ($) Deborah Leff 2023 2022 Timothy O’Rourke 2023 2022 Douglas Roth 2023 2022 Wallace D. Ruiz 2023 2022 Steve Pemberton 2023 2022 Robert Heath 2023 2022 25,000 - - 25,000 25,000 75,251 - 100,251 20,000 - - 20,000 20,000 75,251 - 95,251 33,500 - - 33,500 33,500 75,251 - 108,751 30,000 - - 30,000 30,000 75,251 - 105,251 22,500 - - 22,500 22,500 75,251 - 97,751 26,000 - - 26,000 26,000 75,251 - 101,251
(1) | Because our employees do not receive additional compensation for their service on the Board, Messrs. Sohn and Jennings are omitted from this table. Compensation of Messrs. Sohn and Jennings is fully reflected in the Summary Compensation Table. |
(2) | Amounts reported represent the aggregate grant date fair value of awards granted, computed in accordance with ASC 718. |
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Except as specifically noted, the following table sets forth information with respect to the beneficial ownership of our Common Stock as of March 7, 2024 of:
· | each of our directors and executive officers; and | |
· | each person known to us to beneficially own 5% of our Common Stock on an as-converted basis. |
The calculations in the table are based on 1,462,570 common shares issued and outstanding as of March 7, 2024.
Beneficial ownership is determined in accordance with the rules and regulations of the SEC. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, we have included shares that the person has the right to acquire within 60 days, including through the exercise of any option, warrant or other right or the conversion of any other security. These shares, however, are not included in the computation of the Company’s Common Stock beneficially owned aspercentage ownership of March 16, 2020, by (i) those persons known by the Company to be owners of more than 5% of its Common Stock, (ii) each director, (iii) the Named Executive Officers (as such term is defined in Item 402(m)(2) of Regulation S-K under the Exchange Act), and (iv) the Company’s executive officers and directors as a group. any other person.
Unless otherwise specified in the notes to this table,indicated, the address for each person is:beneficial owner listed in the table below is c/o Recruiter.com Group, Inc., 100 Waugh Dr. Suite 300, Houston, Texas 77007, Attention: Corporate Secretary.500 Seventh Ave., New York, New York 10018.
Name of Beneficial Owner (1) No. of Shares Beneficially Owned % of Class Evan Sohn (2) Miles Jennings (3) Josh McBride (4) * Deborah Leff (5) * Tim O’Rourke (6) Wallace Ruiz (7) * Steve Pemberton (8) * Robert Heath (9) * Xuan Smith (10) * Douglas Roth (11) * 5% Stockholders Cede & Co (13) 72,822 5.0 % 79,964 5.5 % 1,585 5,500 25,394 1.7 % 5,538 5,222 5,866 893 5,271 1,140,370 77.97 %
| Title of Class (1) | Beneficial Owner | Amount of (2) | Percent Beneficially Owned (2)(3) | |||||||
| Named Executive Officers: | ||||||||||
| Common Stock | Miles Jennings (4) | 535,393 | 8.68 | % | ||||||
| Common Stock | Evan Sohn (5) | 518,313 | 9.39 | % | ||||||
| Common Stock | Rick Roberts (6) | 233,481 | 3.79 | % | ||||||
| Directors: | ||||||||||
| Common Stock | Tim O’Rourke (7) | 529,050 | 8.52 | % | ||||||
| Common Stock | Douglas Roth (8) | 28,390 | * | |||||||
| Common Stock | Wallace Ruiz (9) | 28,390 | * | |||||||
| Officers and Directors as a group (8 persons) (10) | 2,135,598 | 33.76 | % | |||||||
| 5% Stockholders: (11) | ||||||||||
| Common Stock | Icon Information Consultants, LP (12) | 513,160 | 8.28 | % | ||||||
| Common Stock | Cavalry Fund I L.P. (13) | 513,160 | 7.99 | % | ||||||
| Common Stock | L1 Capital Global Opportunities Master Fund (14) | 513,160 | 7.99 | % | ||||||
| Common Stock | Joe Abrams (15) | 513,160 | 7.99 | % | ||||||
| Common Stock | Michael Woloshin (16) | 444,765 | 7.24 | % | ||||||
* | Less than 1%. |
(1) | This does not include information regarding the |
| |
(2) | |
Evan Sohn is | |
(3) | Miles Jennings is the President and Chief |
(4) | Includes |
(5) | |
Includes | |
(6) | |
Includes (i) | |
(7) | |
Includes | |
(8) | |
Includes | |
(9) | |
Includes | |
(10) | |
Includes | |
(11) | |
Includes |
Securities Authorized for Issuance under Equity Compensation Plans
The Company has no knowledgefollowing table sets forth information as of any other matters thatDecember 31, 2023 with respect to our compensation plans under which equity securities may come before the Special Meeting and does not intend to present any other matters.be issued.
If you do not plan to attend the Special Meeting, in order that your shares may be represented and in order to assure the required quorum, please sign, date and return your proxy promptly. In the event you are able to attend the Special Meeting, at your request, the Company will cancel your previously submitted proxy.
16
Number of Securities Remaining Available for Number of Future Securities Weighted- Issuance to be Issued Average under Equity upon Exercise Exercise Compensation of Price of Plans Outstanding Outstanding (Excluding Options, Options, Securities Warrants Warrants Reflected in Plan Category and Rights and Rights Column (a)) (a) (b) (c) Equity compensation plans approved by security holders: 2017 Equity Incentive Plan (1) 2021 Equity Incentive Plan (1) Equity compensation plans not approved by security holders Total 71,079 46.65 16,121 143,259 37.15 85,271 214,338 39.76 101,392
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION
OF
RECRUITER.COM GROUP, INC.
Pursuant to the provisions of Section 242 of the General Corporation Law of the State of Delaware, Recruiter.com Group, Inc., a Delaware Corporation (the “Corporation”), in order to amend its Certificate of Incorporation, as amended, hereby certifies as follows:
(1) | The weighted average exercise price relates to the options only. RSUs were excluded as they have no exercise price. |
FIRST: The name of the Corporation is Recruiter.com Group, Inc.
SECOND: That the Board of Directors of the Corporation adopted resolutions setting forth a proposed amendment to the Corporation’s Certificate of Incorporation, as amended, declaring said amendment to be advisable and in the best interests of the Corporation and its stockholders, and calling a special meeting of the stockholders of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Board has determined it to be advisable and in the best interests of the Company and its stockholders to amendArticle IV of the Certificate of Incorporation, as amended, of the Company (the “Certificate of Incorporation”) by replacing the first sentence of said Article with the following sentence:CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The authorizedfollowing includes a summary of transactions since January 1, 2023 to which we have been a party in which the amount involved exceeded or will exceed the lesser of $120,000 or one percent of the average of our total assets at year end for the last two completed fiscal years, and in which any of our directors, executive officers or, to our knowledge, beneficial owners of more than 5% of our capital stock or any member of the Corporation shall consist of: (i) 250,000,000 shares of Common Stock having a par value of $0.0001 per share, and (ii) 10,000,000 shares of “blank check” preferred stock having a par value of $0.0001 per share.
THIRD: That thereafter, pursuant to resolution of the Board of Directors, a special meeting of the stockholders of the Corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
FOURTH: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed this ___ day of May, 2020.
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AGREEMENT AND PLAN OF MERGER
OF
RECRUITER.COM GROUP, INC.
(A DELAWARE CORPORATION)
WITH AND INTO
RECRUITER.COM GROUP, INC.
(A NEVADA CORPORATION)
This AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated this day ___ of May 2020, by and between RECRUITER.COM GROUP, INC., a Delaware corporation (“Recruiter.com Delaware”), and RECRUITER.COM GROUP, INC., a Nevada corporation, a wholly-owned subsidiary of Recruiter.com Delaware (“Recruiter.com Nevada”), is made with respect to the following facts.
RECITALS
WHEREAS, Recruiter.com Delaware is a corporation duly organized and existing under the laws of the State of Delaware;
WHEREAS, Recruiter.com Nevada is a corporation duly organized and existing under the laws of the State of Nevada;
WHEREAS, the respective Boards of Directors for Recruiter.com Delaware and Recruiter.com Nevada have determined that, for purposes of effecting the reincorporation of Recruiter.com Delaware in the State of Nevada, it is advisable and in the best interest of said two corporations and their stockholders that Recruiter.com Delaware merge with and into Recruiter.com Nevada so that Recruiter.com Nevada is the surviving corporation on the terms provided herein (the “Merger”); and
WHEREAS, the respective Board of Directors Recruiter.com Delaware and Recruiter.com Nevada, and the stockholders of Recruiter.com Delaware, have adopted and approved this Agreement.
NOW THEREFORE, based upon the foregoing, and in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Agreement agree as follows.
ARTICLE I — THE MERGER
1.1The Merger; Surviving Corporation. Subject to the terms and conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.5 below), Recruiter.com Delaware shall be merged with and into Recruiter.com Nevada, subject to and upon the terms and conditions provided in this Agreement, the applicable provisions of the Nevada Revised Statutes (the “NRS”) and the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”), and the separate existence of Recruiter.com Delaware shall cease. Recruiter.com Nevada shall be the surviving entity (the “Surviving Corporation”) and shall continue to be governed by the NRS.
1.2Constituent Corporations. The name, address, jurisdiction of organization and governing law of each of the constituent corporations is as follows:
(a) Recruiter.com Delaware: Recruiter.com Group, Inc., a corporation organized under and governed by the laws of the State of Delaware with an address of ___________; and
(b) Recruiter.com Nevada: Recruiter.com Group, Inc., a corporation organized under and governed by the laws of the State of Nevada with an address of ___________.
1.3Surviving Corporation. Recruiter.com Group, Inc., a corporation organized under and governed by the laws of the State of Nevada, shall be the surviving corporation.
1.4Address of Principal Office of the Surviving Corporation. The address of Recruiter.com Nevada, as the Surviving Corporation, shall be ________________.
1.5Effective Time. The Merger shall become effective (the “Effective Time”), on the date upon which the last to occur of the following shall have been completed:
(a) This Agreement and the Merger shall have been adopted and submitted for approval to the stockholders of Recruiter.com Delaware by the Board of Directors of Recruiter.com Delaware and approved by a majority of the voting power of the outstanding stock of Recruiter.com Delaware entitled to vote thereon, in accordance with the requirements of the DGCL;
(b) This Agreement and the Merger shall have been adopted by the Board of Directors of Recruiter.com Nevada in accordance with the requirements of the NRS;
(c) The effective date of the Merger as stated in the executed Articles of Merger (the “Articles of Merger”) filed with the Secretary of State for the State of Nevada; and
(d) Executed Articles of Merger or an executed counterpart to this Agreement meeting the requirements of the NRS shall have been filed with the Secretary of State of the State of Nevada.
1.6Effect of the Merger. The effect of the Merger shall be as provided in this Agreement, the Articles of Merger, and the applicable provisions of the NRS and the DGCL. Without limiting the foregoing, from and after the Effective Time, all the property, rights, privileges, powers and franchises of Recruiter.com Delaware shall vest in Recruiter.com Nevada, as the Surviving Corporation, and all debts, liabilities and duties of Recruiter.com Delaware shall become the debts, liabilities and duties of Recruiter.com Nevada, as the Surviving Corporation.
1.7Articles of Incorporation; Bylaws.
(a) From and after the Effective Time, the Articles of Incorporation of Recruiter.com Nevada shall be the Articles of Incorporation of the Surviving Corporation.
(b) From and after the Effective Time, the Bylaws of Recruiter.com Nevada as in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation.
1.8Officers and Directors. The officers of Recruiter.com Delaware immediately prior to the Effective Time shall continue as officers of the Surviving Corporation and remain officers until their successors are duly appointed or their prior resignation, removal or death. The directors of Recruiter.com Delaware immediately prior to the Effective Time shall continue as directors of the Surviving Corporation and shall remain directors until their successors are duly elected and qualified or their prior resignation, removal or death.
ARTICLE II — CONVERSION OF SHARES
2.1Conversion of Common Stock of Recruiter.com Delaware. At the Effective Time by virtue of the Merger, and without any action on part of the holders of any outstanding shares of Recruiter.com Delaware:
(a) each share of common stock, par value of $0.0001 per share, of Recruiter.com Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of common stock, par value $0.0001 per share, of Recruiter.com Nevada; and
(b) the one share of common stock of Recruiter.com Nevada owned by Recruiter.com Delaware shall be canceled.
2.2Conversion of Preferred Stock of Recruiter.com Delaware. At the Effective Time by virtue of the Merger, and without any action on part of the holders of any outstanding shares of Recruiter.com Delaware:
(a) each share of Series B Redeemable Convertible Preferred Stock, par value $0.0001 per share (the “Series B Preferred Stock”), of Recruiter.com Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of Series B Redeemable Convertible Preferred Stock, par value $0.0001 per share, of Recruiter.com Nevada;
(b) each share of Series D Convertible Preferred Stock, par value $0.0001 per share (the “Series D Preferred Stock”), of Recruiter.com Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of Series D Convertible Preferred Stock, par value $0.0001 per share, of Recruiter.com Nevada;
(c) each share of Series E Convertible Preferred Stock, par value $0.0001 per share (the “Series E Preferred Stock”), of Recruiter.com Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of Series D Convertible Preferred Stock, par value $0.0001 per share, of Recruiter.com Nevada; and
(d) each share of Series F Convertible Preferred Stock, par value $0.0001 per share (the “Series F Preferred Stock”), of Recruiter.com Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of Series F Convertible Preferred Stock, par value $0.0001 per share, of Recruiter.com Nevada.
2.3Options, Warrants, Stock Purchase Rights, Convertible Securities.
(a) From and after the Effective Time, the Surviving Corporation shall assume the obligations of Recruiter.com Delaware under, and continue, the option plans and all other employee benefit plans of Recruiter.com Delaware. Each outstanding and unexercised option, regardless of whether or not issued under any option plan or any other employee benefit plans of Recruiter.com Delaware, other right to purchase, or security convertible into or exercisable for, Recruiter.com Delaware common stock, including the Series B Preferred Stock, the Series D Preferred Stock, Series E Preferred Stock, and the Series F Preferred Stock, (each a “Right”), regardless of whether or not issued under any option plan or any other employee benefit plans of Recruiter.com Delaware, shall become, an option, right to purchase or a security convertible into the common stock of the Surviving Corporation, on the basis of one share of common stock of the Surviving Corporation for each one share of Recruiter.com Delaware common stock issuable pursuant to any such Right, on the same terms and conditions and at an exercise price equal to the exercise price applicable to any such Recruiter.com Delaware Right from and after the Effective Time. This paragraph 2.2(a) shall not apply to currently issued and outstanding common stock of Recruiter.com Delaware. Such common stock is subject to paragraph 2.1 hereof.
(b) A number of shares of common stock of the Surviving Corporation shall be reserved for issuance upon the exercise of options and convertible securities equal to the number of shares of Recruiter.com Delaware common stock so reserved immediately prior to the Effective Time.
2.4Certificates. At and after the Effective Time, all of the outstanding certificates that immediately prior thereto represented shares of common stock, options, warrants or other securities of Recruiter.com Delaware shall be deemed for all purposes to evidence ownership of and to represent the shares of the respective common stock, options, warrants or other securities of Recruiter.com Nevada, as the case may be, into which the shares of common stock, options, warrants or other securities of Recruiter.com Delaware represented by such certificates have been converted as herein provided and shall be so registered on the books and records of the Surviving Corporation or its transfer agent. The registered owner of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or otherwise accounted for to the Surviving Corporation or its transfer agent, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividends and other distributions upon, the shares of common stock, options, warrants or other securities of Recruiter.com Nevada, as the case may be, evidenced by such outstanding certificate, as above provided.
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ARTICLE III — TRANSFER AND CONVEYANCE OF ASSETSAND ASSUMPTION OF LIABILITIES
3.1Transfer, Conveyance and Assumption. At the Effective Time, Recruiter.com Nevada shall continue in existence as the Surviving Corporation, and without further action on the part of Recruiter.com Delaware or Recruiter.com Nevada, succeed to and possess all the rights, privileges and powers of Recruiter.com Nevada, and all the assets and property of whatever kind and character of Recruiter.com Delaware shall vest in Recruiter.com Nevada without further act or deed. Thereafter, Recruiter.com Nevada, as the Surviving Corporation, shall be liable for all of the liabilities and obligations of Recruiter.com Delaware in accordance with Section NRS 92A.250 of the NRS.
3.2Further Assurances. If at any time Recruiter.com Nevada shall consider or be advised that any further assignment, conveyance or assurance is necessary or advisable to vest, perfect or confirm of record in it the title to any property or right of Recruiter.com Delaware, or otherwise to carry out the provisions hereof, officers of Recruiter.com Delaware as of the Effective Time shall execute and deliver any and all proper deeds, assignments and assurances, and do all things necessary and proper to vest, perfect or convey title to such property or right in Recruiter.com Nevada and otherwise to carry out the provisions hereof.
ARTICLE IV — REPRESENTATIONS AND WARRANTIESOFRecruiter.com Delaware
Recruiter.com Delaware represents and warrants to Recruiter.com Nevada as follows:
4.1Validity of Actions. Recruiter.com Delaware (a) is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware, and (b) has full power and authority to enter into this Agreement and to carry out all acts contemplated thereby. This Agreement has been duly executed and delivered in the name and on behalf of Recruiter.com Delaware. Recruiter.com Delaware has received all necessary authorization to enter into this Agreement, and this Agreement is a legal, valid and binding obligation of Recruiter.com Delaware, enforceable against Recruiter.com Delaware in accordance with its terms. The execution and delivery of this Agreement and consummation of the transactions contemplated thereby will not violate any provision of the Certificate of Incorporation or Bylaws of Recruiter.com Delaware, nor violate, conflict with or result in any breachimmediate family of any of the terms, provisionsforegoing persons had or conditions of,will have a direct or constitute a default or cause acceleration of, any indebtednessindirect material interest, other than equity and other compensation, termination, change in control and other arrangements, which are described under any agreement or instrument to which Recruiter.com Delaware is a party or by which it or its assets may be bound, or cause a breach of any applicable Federal or state law or governmental regulation, or any applicable order, judgment, writ, award, injunction or decree of any court or governmental instrumentality.“Executive and Director Compensation.
ARTICLE V — REPRESENTATIONS AND WARRANTIESOFRecruiter.com NEVADAThere have been no applicable transactions since January 1, 2023.
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STOCKHOLDER PROPOSALS TO BE PRESENTED AT THE NEXT ANNUAL MEETING
For a stockholder proposal to be considered for inclusion in our proxy statement for the 2024 annual meeting, the corporate secretary must receive the written proposal at our principal executive offices no later than the deadline stated below. Such proposals must comply with SEC regulations under Rule 14a-8 regarding the inclusion of stockholder proposals in company-sponsored proxy materials. Proposals should be addressed to:
Recruiter.com Nevada represents and warrants to Recruiter.com Delaware as follows:Group, Inc.
500 Seventh Avenue
New York, New York 10018
Attention: Corporate Secretary
5.1Validity of Actions. Recruiter.com Nevada (a) is duly organized, validly existing and in good standing under the laws of the State of Nevada, and (b) has full power and authority to enter into this Agreement and to carry out all acts contemplated thereby. This Agreement has been duly executed and delivered on behalf of Recruiter.com Nevada, and Recruiter.com Nevada has received all necessary authorizations. This Agreement is a legal, valid and binding obligation of Recruiter.com Nevada, enforceable against Recruiter.com Nevada in accordance with its terms. The execution and delivery of this Agreement and consummation of the transactions contemplated thereby will not violate any provision of the Articles of Incorporation or Bylaws of Recruiter.com Nevada nor violate, conflict with or result in any breach of any of the terms, provisions or conditions of, or constitute a default or cause acceleration of, any indebtedness under any agreement or instrument to which Recruiter.com Nevada is a party or by which it or its assets may be bound, or cause a breach of any applicable federal or state law or regulation, or any applicable order, judgment, writ, award, injunction or decree of any court or governmental instrumentality.
B-4
ARTICLE VI — FURTHER ACTIONS
6.1Additional Documents. At the request of any party, each party will execute and deliver any additional documents and perform in good faith such acts as reasonably may be required in order to consummate the transactions contemplated by this Agreement.
ARTICLE VII — CONDITIONS TO THE MERGER
The obligation of Recruiter.com Delaware and of Recruiter.com Nevada to consummate the Merger shall be subject to the satisfaction or waiver of the following conditions:
7.1Bring Down. The representations and warranties set forth in this Agreement shall be true and correct in all material respects at, and as of, the Effective Time as if then made as of the Effective Time.
7.2No Statute,Under Rule or Regulation Affecting. At the Effective Time, there shall be no statute, or regulation enacted or issued by the United States or any State, or by a court, which prohibits or challenges the consummation of the Merger.
7.3Satisfaction of Conditions. All other conditions to the Merger set forth herein shall have been satisfied.
ARTICLE VIII — TERMINATION; AMENDMENT; WAIVER
8.1Termination. This Agreement and the transactions contemplated hereby may be terminated at any time prior to the filing of the Articles of Merger with the Secretary of State of the State of Nevada, by mutual consent of the Board of Directors of Recruiter.com Nevada and the Board of Directors of Recruiter.com Delaware.
8.2Amendment. The parties hereto may, by written agreement, amend this Agreement at any time prior to the filing of the Articles of Merger with the Secretary of State of the State of Nevada, such amendment14a-8, to be approved bytimely, a stockholder’s notice must be received at our principal executive offices not less than 120 calendar days before the Boarddate of Directors of Recruiter.com Nevada agreeingour proxy statement release to such amendment with Recruiter.com Delaware.
8.3Waiver. At any time prior to the Effective Time, any party to this Agreement may extend the time for the performance of any of the obligations or other acts of any other party hereto, or waive compliance with any of the agreements of any other party or with any condition to the obligations hereunder, in each case only to the extent that such obligations, agreements and conditions are intended for its benefit.
ARTICLE IX — MISCELLANEOUS
9.1Expenses. If the Merger becomes effective, all of the expenses incurredstockholders in connection with the Merger shall be paid by Recruiter.com Nevada.
9.2Notice. Except as otherwise specifically provided, any notices to be given hereunder shall be in writing and shall be deemed given upon personal delivery or upon mailing thereof,previous year’s annual meeting. However, if mailed by certified mail, return receipt requested, to the following addresses (or to such other address or addresses shall be specified in any notice given) or by e-mail delivery (in which case a copy shall immediately be sent by certified mail, return receipt requested):
In the case of Recruiter.com Nevada:
Recruiter.com Nevada________________________________________
In the case of Recruiter.com Delaware:
Recruiter.com Delaware________________________________________
9.3Non-Assignability. This Agreement shallwe did not be assignable by either party hereto.
9.4Entire Agreement. This Agreement contains the entire understanding and agreement of the parties with respect to its subject matter, and any and all conflicting or inconsistent discussions, agreements, promises, representations and statements, if any, between the parties or their representatives that are not incorporated in this Agreement shall be null and void and are merged into this Agreement.
9.5Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without giving effect to conflicts of law principles.
9.6Headings. The various section headings are inserted for purposes of reference only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
9.7Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
[Signature page follows]
B-6
ARTICLES OF INCORPORATION
OF
RECRUITER.COM GROUP, INC.
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C-1
Articles of Incorporation of
Recruiter.com Group, Inc.
Article 3. Authorized Stock (continued)
The authorized capital stock of the Corporation shall consist of: (i) two hundred fifty million (250,000,000) shares of Common stock having a par value of $0.0001 per share, and (ii) ten million (10,000,000) shares of “blank check” preferred stock having a par value of $0.0001 per share. Authority is hereby expressly granted to the board of directors (“Board”) of the Corporation to fix by resolution or resolutions any of the designations, powers, preferences and rights, and any of the qualifications, limitations or restrictions which are permitted by Chapter 78 of the Nevada Revised Statutes in respect of any class or classes of preferred stock or any series of any class of preferred stock of the Corporation.
Article 4. Names and Addresses of the Board of Directors (continued)
C-2
BYLAWS
OF
RECRUITER.COM GROUP, INC.
The registered agent of the Corporation (the “Corporation”) shall be as set forth in the Corporation’s articles of incorporation, as may be amended and/or restated from time to time (the “Articles of Incorporation”) and the registered office of the Corporation shall be the street office of that agent. The Board of Directors of the Corporation (the “Board”) may at any time change the Corporation’s registered agent or office by making the appropriate filing with the Secretary of State of Nevada.
The principal office of the Corporation shall be at such place within or without the State of Nevada as shall be fixed from time to time by the Board. The Corporation may also have other offices, within or without the State of Nevada, as the Board may designate, as the business of the Corporation may require, or as may be desirable.
ARTICLE II
STOCKHOLDERS
Meetings of the stockholders shall be held either at the principal office of the Corporation or at any other place as shall be determined by the Board and designated in the notice of the meeting or executed waiver of notice. The Board may determine, in its discretion, that any meeting of the stockholders may be held solely by means of electronic communication in accordance with Section 2.2.
Stockholders not physically present at a meeting of the stockholders may participate in the meeting by electronic communication, videoconference, teleconference, or other available technology if the Corporation implements reasonable measures to:
Stockholders participating by electronic communication shall be considered present in person at the meeting.
An annual meeting of stockholders shall be held each year on a date and at a time designated by the Board and designated in the notice of the meeting. At the annual meeting directors shall be elected and any other proper business may be transacted.
Unless otherwise required by the Nevada Corporations Law or the Articles of Incorporation, special meetings of the stockholders may be called at any time, for any purpose or purposes, only by (i) the Board, (ii) the Executive Chairman, (iii) the Chief Executive Officer (or, in the absence of a Chief Executive Officer, the President) of the Corporation, or (iv) holders of more than 20% of the total voting power of the outstanding shares of capital stock of the Corporation then entitled to vote.
For business (including, but not limited to, director nominations) to be properly brought beforehold an annual meeting by a stockholder,in the stockholderprevious year or stockholders of record intending to proposeif the business (the “proposing stockholder”) must have given written notice of the proposing stockholder’s nomination or proposal, either by personal delivery or by United States mail to the Secretary no earlier than the 120th calendar day, nor later than the 90th calendar day, prior to the anniversary date of the immediately precedingnext year’s annual meeting. If the current year’s meeting is called for a date that is not withinhas been changed by more than 30 days offrom the anniversarydate of the previous year’s annual meeting, noticethen the deadline is a reasonable time before we begin to print and send our proxy materials. Therefore, stockholder proposals intended to be presented at the 2023 annual meeting must be received by us at our principal executive office no later than ten calendar120 days followingprior to the day onanniversary date that proxy material for this year’s meeting were sent in order to be eligible for inclusion in our 2023 proxy statement and proxy relating to that meeting, which public announcementwill be February 17, 2023. Any stockholder proposal submitted outside the processes of Rule 14a-8 under the Securities Exchange Act of 1934 for presentation at our 2023 annual meeting will be considered untimely for purposes of Rule 14a-4 and 14a-5 if notice thereof is not received by the Company in writing by 45 days prior to the anniversary of the date that proxy materials are sent to stockholders, which will be May 3, 2023. Upon receipt of any proposal, we will determine whether to include such proposal in accordance with regulations governing the annual meeting is first made. In no event will an adjournment or postponementsolicitation of an annual meeting of stockholders begin a new time period for giving a proposing stockholder’s notice as provided above.proxies.
For business
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You may propose director candidates for consideration by the Board’s Corporate Governance and Nominating Committee. Any such recommendations should include the nominee’s name and qualifications for Board membership, information regarding the candidate as would be required to be properlyincluded in a proxy statement filed pursuant to SEC regulations, and a written indication by the recommended candidate of her or his willingness to serve, and should be directed to the Corporate Secretary at our principal executive offices within the time period described above for proposals other than matters brought beforeunder SEC Rule 14a-8.
AVAILABILITY OF ANNUAL REPORT ON FORM 10-K
As required, we have filed our 2023 10-K with the SEC. Stockholders may obtain, free of charge, a special meeting of stockholders, the noticecopy of the meeting sent2023 10-K by writing to us at 500 Seventh Avenue, New York, New York 10018, Attention: Corporate Secretary, or from our website, https://investors.recruiter.com/.
STOCKHOLDERS SHARING THE SAME LAST NAME AND ADDRESS
The SEC has adopted rules that permit companies and intermediaries such as brokers to satisfy delivery requirements for proxy statements with respect to two or more stockholders sharing the same address by delivering a single proxy statement addressed to those stockholders. This process, which is commonly referred to as “householding,” potentially provides extra convenience for stockholders and cost savings for companies. We and some brokers household proxy materials, delivering a single proxy statement to multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once you have received notice from your broker or us that they are or we will be householding materials to your address, householding will continue until you are notified otherwise or until you revoke your consent. If, at the direction of the person calling the meeting must set forth the nature of the businessany time, you no longer wish to be considered. A personparticipate in householding and would prefer to receive a separate proxy statement, or persons who have madeif you currently receive multiple proxy statements and would prefer to participate in householding, please notify your broker if your shares are held in a brokerage account or us if you hold registered shares. You can notify us by sending a written request for a special meeting pursuant to this Article II may provide the information required for notice of a stockholder proposal under this section simultaneously with the written request for the meeting submitted to the Secretary or within ten calendar days after delivery of the written request for the meeting to the500 Seventh Avenue, New York, New York 10018, Attention: Corporate Secretary.
A proposing stockholder’s notice shall include as to each matter the proposing stockholder proposes to bring before either an annual or special meeting:WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Such filings are made available on our Internet website, www.recruiter.com, as soon as reasonably practicable after they are filed with, or furnished to, the SEC. The information on our website is not, and shall not be deemed to be, a part of this Proxy Statement or incorporated into any other filings we make with the SEC. The SEC maintains an Internet site, www.sec.gov, which contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC, including the Company.
By Order of the Board of Directors,
Name: | Evan Sohn | |
| Title: | Director |
March 11, 2024
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RECRUITER.COM GROUP, INC. |
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THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS | |||||
ANNUAL Meeting OF STOCKHOLDERS – March 22, 2024 at 11:00 A.M. EASTERN Time | |||||
CONTROL ID: | |||||
REQUEST ID: | |||||
The stockholder(s) hereby appoint(s) Granger Whitelaw and Evan Sohn, or either of them, as proxies, each with the | |||||
(CONTINUED AND TO BE SIGNED ON REVERSE SIDE.) | ||||
VOTING INSTRUCTIONS If you vote by phone, fax or internet, please DO NOT mail your proxy card. | ||||
| MAIL: | Please mark, sign, date, and return this Proxy Card promptly using the | ||
| FAX: | Complete the reverse portion of this Proxy Card and | ||
| INTERNET: | https://www.iproxydirect.com/RCRT | ||
| PHONE: | 1-866-752-VOTE(8683) | ||
Notwithstanding the foregoing, in order to include information with respect to a stockholder proposal in the proxy statement and form of proxy for a stockholder’s meeting, stockholders must provide notice as required by, and otherwise comply with the requirements of, the Exchange Act and the regulations promulgated thereunder.
No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.5. The chairman of the meeting may refuse to acknowledge the proposal of any business not made in compliance with the foregoing procedure.
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For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the record date shall be the date specified by the Board in the notice of the meeting, and . If no date is specified, the record date shall be the close of business on the day before the day the first notice of the meeting is given or, if notice is waived, the close of business on the day before the day the meeting is held.
A record date fixed under this Section may not be more than 60, or less than 10, days before the meeting of stockholders. A determination of stockholders entitled to notice of or to vote at a meeting of stockholders is effective for any adjournment or postponement of the meeting unless the Board fixes a new record date for the adjourned or postponed meeting. The Board must fix a new record date if the meeting is adjourned or postponed more than 60 days after the original meeting of stockholders.
Written notice stating the place, date, and time of the meeting, the means of any electronic communication by which stockholders may participate in the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than 10, and not more than 60, days before the date of the meeting.
Notice to each stockholder entitled to vote at the meeting shall be given personally, by mail, or by electronic transmission if consented to by a stockholder, by or at the direction of the Secretary or the officer or person calling the meeting. If mailed, the notice shall be deemed to be given when deposited in the United States mail addressed to the stockholder at the stockholder’s address as it appears on the share transfer records of the Corporation, with postage thereon prepaid.
Any stockholder entitled to notice of a meeting may sign a written waiver of notice delivered to the Corporation either before or after the meeting. A stockholder’s participation or attendance at a meeting shall constitute a waiver of notice, except where the stockholder attends for the specific purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened.
The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the Corporation’s principal place of business.
In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
At each meeting of stockholders for the transaction of any business, a quorum must be present to organize such meeting. The presence in person or by proxy of stockholders representing one-third of the voting power constitutes a quorum for the transaction of business at a meeting of stockholders, except as otherwise required by the Articles of Incorporation, these Bylaws, or Chapter 78 of the Nevada Revised Statutes (the “Nevada Corporations Act”). If any class or series of shares is permitted or required to vote separately on any action, the presence in person or by proxy of stockholders representing one-third of the voting power of such class or series constitutes a quorum for the transaction of business.
The holders of a majority of the voting power represented in person or by proxy at a meeting, even if less than a quorum, may adjourn or postpone the meeting from time to time.
The Board, as it shall deem appropriate, may adopt by resolution rules and regulations for the conduct of meetings of the stockholders. At every meeting of the stockholders, the Executive Chairman, or in his or her absence or inability to act, such person as the Executive Chairman may appoint, or in the absence thereof or failure of the Executive Chairman to make such appointment, any officer elected by the Board, shall serve as chair of the meeting. The Secretary or, in his or her absence or inability to act, the person whom the chair of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
The chair of the meeting shall determine the order of business and, in the absence of a rule adopted by the Board, shall establish rules for the conduct of the meeting. The chair of the meeting shall announce the close of the polls for each matter voted upon at the meeting, after which no ballots, proxies, votes, changes, or revocations will be accepted. Polls for all matters before the meeting will be deemed to be closed upon final adjournment of the meeting.
Each outstanding share of stock, regardless of class or series, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders, except as otherwise provided by these Bylaws and to the extent that the Articles of Incorporation or the certificate of designation establishing the class or series of stock provides for more or less than one vote per share or limits or denies voting rights to the holders of the shares of any class or series of stock.
Unless a different proportion is required by the Articles of Incorporation, these Bylaws, or the Nevada Corporations Act, on all matters other than the election of directors, the affirmative vote of a majority of the voting power of the shares present or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders. Directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present.
Stockholders shall not have the right to cumulate their votes for the election of directors of the Corporation.
A stockholder may vote either in person or by proxy executed in writing by the stockholder or the stockholder’s attorney-in-fact. Any copy, communication by electronic transmission, or other reliable written reproduction may be substituted for the stockholder’s original written proxy for any purpose for which the original proxy could have been used if such copy, communication by electronic transmission, or other reproduction is a complete reproduction of the entire original written proxy.
No proxy shall be valid after six months from the date of its creation unless the proxy specifies its duration, which may not exceed seven years from the date of its creation. A proxy shall be revocable unless the proxy states that the proxy is irrevocable and the proxy is coupled with an interest sufficient to support an irrevocable power.
A properly created proxy or proxies continues in full force and effect until either of the following occurs:
Unless otherwise restricted by the Articles of Incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office, its principal place of business, or an officer or agent of the Corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE III
DIRECTORS
Subject to the provisions of the Nevada Corporations Act and any limitations in the Articles of Incorporation, the business and affairs of the Corporation shall be managed under the direction of the Board.
Subject to any provision in the Articles of Incorporation fixing the number of directors, the authorized number of directors shall be determined from time to time by resolution of the Board, provided the Board shall at all times consist of at least one member. Directors need not be stockholders of the Corporation, unless otherwise provided in the Articles of Incorporation. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.
At each annual meeting of stockholders, the holders of shares of stock entitled to vote on the election of directors shall elect directors to hold office until the next succeeding annual meeting or until the director’s earlier death, resignation, disqualification, or removal. Despite the expiration of a director’s term of office, the director shall continue to serve until his or her successor is elected and qualified.
Any or all of the directors may be removed at any time, with or without cause, by the affirmative vote of at least two-thirds of the voting power of the issued and outstanding stock of the Corporation entitled to vote.
A director may resign at any time by giving written notice or by electronic transmission to the Corporation. A resignation is effective when the notice is given unless a later effective date is stated in the notice. Acceptance of the resignation shall not be required to make the resignation effective. The pending vacancy may be filled before the effective date, but the successor shall not take office until the effective date.
Unless otherwise provided in the Articles of Incorporation, vacancies and newly created directorships, whether resulting from an increase in the authorized number of directors or due to the death, resignation, disqualification, or removal of a director or otherwise, may be filled by the affirmative vote of a majority of the remaining directors, even if less than a quorum. When one or more directors resign and the resignation is effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective. A director elected to fill a vacancy shall hold office for the unexpired term of his or her predecessor in office and until his or her successor is duly elected and qualified.
Regular meetings of the Board may be held with at least five business days’ prior notice at such time and place as shall from time to time be determined by the Board.
Special meetings of the Board for any purpose or purposes may be called at any time by the Executive Chairman, the Chief Executive Officer, a President, the Secretary or any two directors. The person(s) authorized to call special meetings of the Board may fix the place and time of the meeting.
Notice of the time and place of special meetings shall be:
If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by facsimile or (iii) sent by electronic mail, it shall be delivered or sent at least 24 hours before the time of the holding of the meeting. If the notice is sent by United States mail, it shall be deposited in the United States mail at least four days before the time of the holding of the meeting. Any oral notice may be communicated either to the director or to a person at the office of the director who the person giving notice has reason to believe will promptly communicate such notice to the director. The notice need not specify the place of the meeting if the meeting is to be held at the corporation’s principal executive office nor the purpose of the meeting.
Directors not physically present at a meeting of the Board may participate in the meeting by electronic communication, videoconference, teleconference, or other available technology. If directors attend a meeting of the Board remotely, the Corporation shall implement reasonable measures to:
Directors participating by electronic communication shall be considered present in person at the meeting.
A director entitled to notice of a meeting may sign a written waiver of notice delivered to the Corporation either before or after the time of the meeting. A director’s participation or attendance at a meeting shall constitute a waiver of notice, except where the director attends for the specific purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened.
Except as otherwise required by law or the Articles of Incorporation, a majority of the Board then in office shall constitute a quorum for the transaction of business at any meeting. The directors at a meeting for which a quorum is not present may adjourn the meeting until a time and place as may be determined by a vote of the directors present at that meeting.
The act of the directors holding a majority of the voting power of the directors present at a meeting at which a quorum is present shall be the act of the Board, unless the act requires approval by a greater proportion under the Articles of Incorporation or these Bylaws.
Unless otherwise restricted by the Articles of Incorporation, the Board shall have the authority to fix the compensation of directors.
Any action required or permitted by the Nevada Corporations Act or the Articles of Incorporation to be taken at a meeting of the Board or any committee thereof may be taken without a meeting if, before or after the action, all of the members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission or transmissions that are filed with the minutes of proceedings of the Board or committee.
If a quorum is not present at any meeting of the Board, then a majority of the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
Without otherwise limiting the powers of the Board set forth herein and provided that shares of capital stock of the Corporation are listed for trading on either The Nasdaq Stock Market (“Nasdaq”) or the New York Stock Exchange (“NYSE”), the Corporation shall comply with the corporate governance rules and requirements of Nasdaq or the NYSE, as applicable.
ARTICLE IV
COMMITTEES
ANNUAL MEETING OF THE RECRUITER.COM GROUP, INC. |
The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board or in these Bylaws, shall have and may exercise such lawfully delegable powers and duties as the Board may confer. Each committee will comply with all applicable provisions of: the Sarbanes Oxley Act of 2002, the rules and regulations of the Securities and Exchange Commission, and the rules and requirements of Nasdaq or NYSE, as applicable, and will have the right to retain independent legal counsel and other advisers at the corporation’s expense.
PLEASE COMPLETE, DATE, SIGN AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE: ■ | ||
Each committee shall keep regular minutes of its meetings and report to the Board when required.
Meetings and actions of committees shall be governed by, and held and taken in accordance with, the applicable provisions of Article III of these Bylaws with respect to:
with such changes in the context of those Bylaws as are necessary to substitute the committee and its members for the Board and its members.
Notwithstanding the foregoing:
The Board shall establish an Audit Committee whose principal purpose will be to oversee the Corporation’s and its subsidiaries’ accounting and financial reporting processes, internal systems of control, independent auditor relationships and audits of consolidated financial statements of the corporation and its subsidiaries. The Audit Committee will also determine the appointment of the independent auditors of the Corporation and any change in such appointment and ensure the independence of the Corporation’s auditors. In addition, the Audit Committee will assume such other duties and responsibilities as the Board may confer upon the committee from time to time. In the event of any inconsistency between this Section 4.4 and the Articles of Incorporation, the terms of the Articles of Incorporation will govern.
The Board shall establish a Corporate Governance and Nominating Committee whose principal duties will be to assist the Board by identifying individuals qualified to become Board members consistent with criteria approved by the Board, to recommend to the Board for its approval the slate of nominees to be proposed by the Board to the stockholders for election to the Board, to develop and recommend to the Board the governance principles applicable to the Corporation, as well as such other duties and responsibilities as the Board may confer upon the committee from time to time. In the event the Corporate Governance and Nominating Committee will not be recommending a then incumbent director for inclusion in the slate of nominees to be proposed by the Board to the stockholders for election to the Board, and provided such incumbent director has not notified the Corporate Governance and Nominating Committee that he or she will be resigning or that he or she does not intend to stand for re-election to the Board, then, in the case of an election to be held at an annual meeting of stockholders, the Corporate Governance and Nominating Committee will recommend the slate of nominees to the Board at least thirty (30) days prior to the latest date required by the provisions of these Bylaws for stockholders to submit nominations for directors at such annual meeting, or in the case of an election to be held at a special meeting of stockholders, at least 10 days prior to the latest date required by the provisions of Article III of these Bylaws for stockholders to submit nominations for directors at such special meeting. In the event of any inconsistency between this Section 4.5 and the Articles of Incorporation, the terms of the Articles of Incorporation will govern.
The Board shall establish a Compensation Committee whose principal duties will be to review employee compensation policies and programs as well as the compensation of the Chief Executive Officer and other executive officers of the Corporation, to recommend to the Board compensation program for outside directors, as well as such other duties and responsibilities as the Board may confer upon the committee from time to time. In the event of any inconsistency between this Section 4.6 and Articles of Incorporation, the terms of the Articles of Incorporation will govern.
ARTICLE V
OFFICERS
The officers of the Corporation shall be a Chief Executive Officer, one President, a Secretary, a Treasurer, and an Executive Chairman. The Corporation may also have, at the discretion of the Board, a vice Executive Chairman, a Chief Financial Officer, one or more vice presidents, one or more assistant vice presidents, one or more assistant treasurers, one or more assistant secretaries, and any such other officers as may be appointed in accordance with the provisions of these Bylaws.
Any number of offices may be held by the same person.
The Board shall appoint the officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 of these Bylaws, subject to the rights, if any, of an officer under any contract of employment. Each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. A failure to elect officers shall not dissolve or otherwise affect the Corporation.
The Board may appoint, or empower the Chief Executive Officer, the Executive Chairman and/or the President of the Corporation, to appoint, such other officers and agents as the business of the Corporation may require. Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as provided for in these Bylaws or as the Board may from time to time determine.
Any officer of the Corporation may be removed, either with or without cause, by an affirmative vote of the majority of the Board at any regular or special meeting of the Board or, except in the case of an officer appointed by the Board, by any officer upon whom such power of removal may be conferred by the Board.
Any officer may resign at any time by delivering written notice to the Corporation. Resignation is effective when the notice is delivered unless the notice provides a later effective date. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.
Any vacancy occurring in any office of the corporation shall be filled by the Board or as provided in Section 5.2.
The Executive Chairman shall be a member of the Board and, if present, preside at meetings of the Board and exercise and perform such other powers and duties as may from time to time be assigned to him or her by the Board or as may be prescribed by these Bylaws. The Executive Chairman shall assist the Chief Executive Officer in dealings with the Corporation’s stockholders, planning corporate strategy and supporting the Chief Executive Officer throughout the planning and execution of the Corporation’s business plan. The Executive Chairman shall be appointed by a majority of the Board then in office. If there is no Chief Executive Officer of the Corporation as a result of the death, resignation or removal of such officer, then the Executive Chairman may also serve in an interim capacity as the Chief Executive Officer of the Corporation until the Board shall appoint a new Chief Executive Officer and, while serving in such interim capacity, shall have the powers and duties prescribed in Section 5.7 of these Bylaws. If there is no President of the Corporation then the Executive Chairman shall have the duties of the President. The Executive Chairman shall serve as chairman of and preside at all meetings of the stockholders.
Subject to the control of the Board and any supervisory powers the Board may give to the Executive Chairman, the Chief Executive Officer shall, together with the President of the Corporation, have general supervision, direction, and control of the business and affairs of the Corporation and shall see that all orders and resolutions of the Board are carried into effect. The Chief Executive Officer shall, together with the President of the Corporation, also perform all duties incidental to this office that may be required by law and all such other duties as are properly required of this office by the Board. In the absence of the Executive Chairman, the Chief Executive Officer shall serve as chairman of and preside at all meetings of the stockholders. In the absence of the Executive Chairman, the Chief Executive Officer shall preside at all meetings of the Board.
Subject to the control of the Board and any supervisory powers the Board may give to the Executive Chairman, the President of the Corporation shall, together with the Chief Executive Officer, have general supervision, direction, and control of the business and affairs of the corporation and shall see that all orders and resolutions of the Board are carried into effect. The President shall have such other powers and perform such other duties as from time to time may be prescribed for him or her by the Board, these Bylaws, or the Executive Chairman.
In the absence or disability of the President, the vice presidents, if any, in order of their rank as fixed by the Board or, if not ranked, a vice president designated by the Board, shall perform all the duties of the President. When acting as President, the appropriate vice president shall have all the powers of, and be subject to all the restrictions upon, that President. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board, these bylaws, the Executive Chairman, the Chief Executive Officer or, in the absence of a Chief Executive Officer, the President.
The Secretary shall keep or cause to be kept, at the principal executive office of the Corporation or such other place as the Board may direct, a book of minutes of all meetings and actions of directors, committees of directors, and stockholders. The minutes shall show:
The Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or registrar, as determined by resolution of the Board, a share register, or a duplicate share register showing:
The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the Board required to be given by law or by these Bylaws. The Secretary shall keep the seal of the Corporation, if one be adopted, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board or by these Bylaws.
The Chief Financial Officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The books of account shall at all reasonable times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in the name and to the credit of the Corporation with such depositories as the Board may designate. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board, shall render to the Chief Executive Officer or, in the absence of a Chief Executive Officer, any President and directors, whenever they request it, an account of all his or her transactions as Chief Financial Officer and of the financial condition of the Corporation, and shall have other powers and perform such other duties as may be prescribed by the Board or these Bylaws.
The Chief Financial Officer may be the Treasurer of the Corporation.
The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The books of account shall at all reasonable times be open to inspection by any director.
The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the Corporation with such depositories as the Board may designate. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board, shall render to the Chief Executive Officer or, in the absence of a Chief Executive Officer, the President and directors, whenever they request it, an account of all his or her transactions as treasurer and of the financial condition of the corporation, and shall have other powers and perform such other duties as may be prescribed by the Board or these Bylaws.
The Assistant Secretary, or, if there is more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of the Secretary’s inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as may be prescribed by the Board or these Bylaws.
The Assistant Treasurer, or, if there is more than one, the Assistant Treasurers, in the order determined by the Board (or if there be no such determination, then in the order of their election), shall, in the absence of the Chief Financial Officer or Treasurer or in the event of the Chief Financial Officer’s or Treasurer’s inability or refusal to act, perform the duties and exercise the powers of the Chief Financial Officer or Treasurer, as applicable, and shall perform such other duties and have such other powers as may be prescribed by the Board or these Bylaws.
The Executive Chairman, the Chief Executive Officer, the President, any vice president, the Treasurer, the Secretary or Assistant Secretary of this Corporation, or any other person authorized by the Board, the Executive Chairman, the Chief Executive Officer, the President or a vice president, is authorized to vote, represent, and exercise on behalf of this Corporation all rights incident to any and all shares or other equity interests of any other corporation or entity standing in the name of this Corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
In addition to the foregoing authority and duties, all officers of the Corporation shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be designated from time to time by the Board.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall, to the fullest extent permitted by the Nevada Corporations Act, indemnify any person who is or was a director or officer of the Corporation or any predecessor of the Corporation or is or was serving at the Corporation’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, or other entity (each such person, an “Indemnitee”) against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection with any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than a proceeding by or in the right of the Corporation, to which the Indemnitee is, was, or is threatened to be made a party by reason of being an Indemnitee, if the Indemnitee either:
PROXY SOLICITED ON BEHALF OF THE |
The Corporation shall, to the fullest extent permitted by the Nevada Corporations Act, indemnify any Indemnitee against expenses, including attorneys’ fees and amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection with any threatened, pending, or completed suit or action by or in the right of the Corporation to which the Indemnitee is, was, or is threatened to be made a party by reason of being an Indemnitee, if the Indemnitee either:
The Corporation shall, to the fullest extent permitted by the Nevada Corporations Act, indemnify any Indemnitee who was successful, on the merits or otherwise, in the defense of any action, suit, proceeding, or claim described in Sections 6.1 and 6.2, against expenses (including attorneys’ fees) actually and reasonably incurred by the Indemnitee in connection with the defense.
Any indemnification under this Article VI (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 6.1 or Section 6.2 of this Article VI, as the case may be. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, by (i) the board of directors, by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding; (i) independent legal counsel, in a written opinion, if: (1) A majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders; or (2) a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained; or (iii) by the stockholders of the Corporation (but only if a majority of the directors who are not parties to such action, suit or proceeding, if they constitute a quorum of the Board, presents the issue of entitlement to indemnification to the stockholders for their determination). Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.
To the fullest extent permitted by the Nevada Corporations Act, the Corporation shall pay the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified by the corporation.
The rights of indemnification set out in this Article VI shall be in addition to and not exclusive of any other rights to which any Indemnitee may be entitled under the Articles of Incorporation, Bylaws, any other agreement with the Corporation, any action taken by the directors or stockholders of the Corporation, or otherwise.
To the fullest extent permitted by the Nevada Corporations Law or any other applicable law, the corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was a director, officer, employee or agent of the corporation serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power or the obligation to indemnify such person against such liability under the provisions of this Article VI.
The rights to indemnification and advancement of expenses conferred by this Article VI shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors, administrators and other personal and legal representatives of such a person.
Notwithstanding anything contained in this Article IX to the contrary, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board.
The Corporation may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VI to directors and officers of the Corporation.
Neither any amendment or repeal of any Section of this Article VI, nor the adoption of any provision of the Articles of Incorporation or the Bylaws inconsistent with this Article VI, shall adversely affect any right or protection of any director or officer, employee or other agent established pursuant to this Article VI existing at the time of such amendment, repeal or adoption of an inconsistent provision, including without limitation by eliminating or reducing the effect of this Article VI, for or in respect of any act, omission or other matter occurring, or any action or proceeding accruing or arising (or that, but for this Article VI, would accrue or arise), prior to such amendment, repeal or adoption of an inconsistent provision.
ARTICLE VII
SHARE CERTIFICATES AND TRANSFER
The shares of the Corporation shall be represented by certificates, provided that the Board may provide by resolution or resolutions that some or all of any class or series of stock shall be uncertificated shares. The Corporation shall, within a reasonable time after the issuance or transfer of any uncertificated shares, send to the registered owner of the shares a written notice containing the information required to be set forth or stated on certificates pursuant to the Nevada Corporations Act. Shares represented by certificates shall be signed by officers or agents designated by the Corporation for such purpose and shall state:
(a) The name of the Corporation and that it is organized under the laws of Nevada.
(b) The name of the person to whom the certificate is issued.
(c) The number of shares represented by the certificate.
(d) Any restrictions on the transfer of the shares, such statement to be conspicuous.
No share shall be issued until the consideration therefor, fixed as provided by law, has been fully paid.
Shares of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of shares of the Corporation shall be made on the books of the Corporation only by the holder of record thereof or by such person’s attorney lawfully constituted in writing and, in the case of certificated shares, upon the surrender of the certificate thereof, which shall be cancelled before a new certificate or uncertificated shares shall be issued. No transfer of shares shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.
The Corporation may treat the holder of record of any shares issued by the Corporation as the holder in fact thereof, for purposes of voting those shares, receiving distributions thereon or notices in respect thereof, transferring those shares, exercising rights of dissent with respect to those shares, exercising or waiving any preemptive right with respect to those shares, entering into agreements with respect to those shares in accordance with the laws of the State of Nevada, or giving proxies with respect to those shares.
Neither the Corporation nor any of its officers, directors, employees, or agents shall be liable for regarding that person as the owner of those shares at that time for those purposes, regardless of whether that person possesses a certificate for those shares and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express notice thereof, except as otherwise provided by law.
The Board may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed upon the making of an affidavit of that fact by the owner of the allegedly lost, stolen, or destroyed certificate. When authorizing the issue of a new certificate or certificates, the Board, in its discretion and as a condition precedent to the issuance thereof, may require the owner of the allegedly lost, stolen, or destroyed certificate, or the owner’s legal representative, to give the Corporation a bond or other security sufficient to indemnify it against any claim that may be made against the Corporation or other obligees with respect to the certificate alleged to have been lost, stolen, or destroyed or the issuance of such new certificate or certificates.
The Corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly paid shares, and upon the books and records of the corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
ARTICLE VIII
DISTRIBUTIONS
The Board, subject to any restrictions contained in either (i) the Nevada Corporation Law, or (ii) the Articles of Incorporation, may authorize, and the Corporation may make, distributions to its stockholders in cash, property (other than shares of the Corporation), or a dividend of shares of the Corporation’s capital stock.
For the purpose of determining stockholders entitled to receive a distribution by the Corporation (other than a distribution involving a purchase or redemption by the Corporation of any of its own shares) or a share dividend, the Board may, at the time of declaring the distribution or share dividend, set a date no more than 60 days prior to the date of the distribution or share dividend. If no record date is fixed for such distribution or share dividend, the record date shall be the date on which the resolution of the Board authorizing the distribution or share dividend is adopted.
ARTICLE IX
RECORDS AND REPORTS
The Corporation shall, either at its principal executive office or at such place or places as designated by the Board, keep a record of its stockholders listing their names and addresses and the number and class of shares held by each stockholder, a copy of these Bylaws, as may be amended to date, minute books, accounting books and other records.
Any such records maintained by the Corporation may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to the provisions of the Nevada Corporations Act. When records are kept in such manner, a clearly legible paper form produced from or by means of the information storage device or method shall be admissible in evidence, and accepted for all other purposes, to the same extent as an original paper form accurately portrays the record.
Any stockholder of record that satisfies the requirements of the Nevada Corporations Act, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the Corporation’s stock ledger, a list of its stockholders, and its other books and records and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent is the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing that authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the Corporation at its registered office in Nevada or at its principal executive office.
Any director shall have the right to examine the Corporation’s stock ledger, a list of its stockholders, and its other books and records for a purpose reasonably related to his or her position as a director.
ARTICLE X
GENERAL MATTERS
All checks, drafts, or other instruments for payment of money or notes of the Corporation shall be signed by an officer or officers or any other person or persons as shall be determined from time to time by resolution of the Board.
Except as otherwise provided in these Bylaws, the Board, or any officers of the corporation authorized thereby, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances.
The fiscal year of the Corporation shall be as determined by the Board.
Unless the context requires otherwise, the general provisions, rules of construction, and definitions of the Nevada Corporations Act shall govern the construction of these Bylaws. These Bylaws are adopted subject to any applicable law and the Articles of Incorporation. Whenever these Bylaws may conflict with any applicable law or the Articles of Incorporation, such conflict shall be resolved in favor of such law or the Articles of Incorporation.
If any one or more of the provisions of these Bylaws, or the applicability of any provision to a specific situation, shall be held invalid or unenforceable, the provision shall be modified to the minimum extent necessary to make it or its application valid and enforceable, and the validity and enforceability of all other provisions of these Bylaws and all other applications of any provision shall not be affected thereby.
The Board shall have the exclusive power to amend or repeal these Bylaws, or adopt new Bylaws.
This proxy is solicited on behalf of the Board of Directors
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The stockholder(s) hereby appoint(s) Miles Jennings and Evan Sohn, or either of them, as proxies, each with the power to appoint his substitute, and hereby authorize(s) them to represent and to vote, as designated on the reverse side of this ballot, all of the shares of Common Stock and Preferred Stock of RECRUITER.COM GROUP, INC. that the stockholder(s) is/are entitled to vote at the Special Meeting of Stockholders to be held at 11:00 A.M., local time on May 6, 2020, at Club 75 located at 75 Rockefeller Plaza, New York, NY 10019, and any adjournment or postponement thereof.
Proposal 1 |
| AGAINST ALL | FOR ALL EXCEPT |
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