_____________________________
Filed by the Registrant ☒ Filed by a Party other than the Registrant ☐
Check the appropriate box:
HERITAGE GLOBAL INC.
(Name of Registrant as Specified in itsIn Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
April 23, 2024
San Diego, California
Dear Stockholder:
I am pleased to invite you to Acceris’ annualattend Heritage Global Inc.’s 2024 Annual Meeting of Shareholders on June 5, 2024 at 9:00 a.m. (Pacific Time). This year’s Annual Meeting will be a virtual meeting of stockholders (the “Annual Meeting”)shareholders held via a live audio webcast at www.virtualshareholdermeeting.com/HGBL2024. We will hold the meetingFor more information on August 5, 2005 at 2:00 PM local time at the offices of Acceris located at 1001 Brinton Road, Pittsburgh, Pennsylvania 15221.
The Notice of Annual Meeting and the proxy statement. The proxy statementProxy Statement that follows describes the business that we will conductthose matters to be voted on at the meeting,meeting. Your proxy card and provides information about our company.2023 annual report are also enclosed.
Your vote is very important. This proxy statement is being mailedyear, in addition to all shareholders on or about July 8. We urge you to read the enclosed information carefully.
By Order of the Board of Directors, | |
| |
Ross Dove | |
President and Chief Executive Officer |
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
April 23, 2024
San Diego, California
The Annual Meeting of Stockholders
Only shareholders of record, as shown by the transfer books of the Company, at the close of business on June 9, 2005, youApril 8, 2024 are entitled to notice of, and to vote at, the Annual Meeting or any adjournment or postponement thereof. A completeof Shareholders. The Company will make a list of these stockholders will be open for examination by any stockholder of record at our principal executive offices located at 1001 Brinton Road, Pittsburgh, Pennsylvania 15221 for a period of ten days prior toshareholders available electronically on the virtual meeting website during the Annual Meeting. The list will also be availableMeeting for examination by any stockholder of record present atthose attending the Annual Meeting.
You are requested to assert appraisal rights under Chapter 607 of the Florida Business Corporation Act in connection with Proposal 2 to be voted upon at the Annual Meeting. A copy of Sections 607.1301-607.1333 of the Florida Business Corporation Act concerning appraisal rights under Florida laws is included with this proxy statement for your reference.
By Order of the Board of Directors, | |
| |
Ross Dove | |
President and Chief Executive Officer | |
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TABLE OF CONTENTS
INFORMATION ABOUT THE ANNUAL MEETING OF SHAREHOLDERS AND VOTING | 4 | |
5 | ||
9 | ||
12 | ||
17 | ||
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT | 17 | |
19 | ||
20 | ||
PROPOSAL NO. 2: APPROVAL OF THE ADOPTION OF OUR SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION | 29 | |
PROPOSAL NO. 3: RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITOR | 30 | |
33 | ||
PROPOSAL NO. 4: ADVISORY VOTE ON NAMED EXECUTIVE OFFICER COMPENSATION | 34 | |
SHAREHOLDER PROPOSALS FOR THE 2025 ANNUAL MEETING OF SHAREHOLDERS | 35 | |
36 | ||
12625 High Bluff Drive, Suite 305
San Diego, California 92130
PROXY STATEMENT
INFORMATION ABOUTABOUT THE ANNUAL MEETING OF
SHAREHOLDERS AND VOTING
Why did you send me this proxy statement?
We sent you this proxy statementProxy Statement and the enclosed proxy card because the boardBoard of directorsDirectors of Acceris CommunicationsHeritage Global Inc., a Florida corporation (Acceris),which we refer to as “Heritage Global,” “we,” “us,” “our” or the “Company,” is soliciting your proxy to vote at the 2005 annual meeting2024 Annual Meeting of stockholders (Annual Meeting)Shareholders (the “Annual Meeting”). A copy of our 2023 Annual Report to Shareholders (with Form 10-K for the year ended December 31, 2023) accompanies this Proxy Statement.
We are furnishing proxy materials to our shareholders primarily via the Internet, under rules adopted by the U.S. Securities and Exchange Commission (the “SEC”), instead of mailing printed copies of those materials to each shareholder. On or about April 23, 2024, we began mailing to our shareholders a Notice of Internet Availability of Proxy Materials (the “Proxy Notice”) containing instructions on how to access our proxy materials, including our Proxy Statement and our 2023 Annual Report to Shareholders. The Proxy Notice also instructs you on how to access your proxy card electronically to vote via the Internet or by telephone. The Proxy Notice is not a form for exercising your voting rights as a shareholder; the Proxy Notice merely presents an overview of our collective proxy materials. We encourage you to review our full proxy materials before voting on the proposals set forth herein.
Our proxy materials may be amended or supplemented in accordance with applicable law. This process is designed to expedite the shareholders’ receipt of proxy statementmaterials, lower the cost of the Annual Meeting and help conserve natural resources. Shareholders who would prefer to continue to receive printed proxy materials should follow the instructions included in the Proxy Notice.
This Proxy Statement summarizes the information you need to vote in an informed manner on the proposals to be considered at the Annual Meeting. However, youYou do not need to attend the Annual Meeting to vote your shares. InsteadYou may simply vote in accordance with the instructions contained in this Proxy Statement.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE ANNUAL MEETING OF SHAREHOLDERS TO BE HELD ONJUNE 5, 2024: THIS PROXY STATEMENT, THE FORM OF PROXY CARD AND THE ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2023 ARE AVAILABLE, FREE OF CHARGE, AT WWW.PROXYVOTE.COM.
How Can I Attend the Annual Meeting?
Our Annual Meeting will be a completely virtual meeting of shareholders, which will be conducted exclusively by a live audio webcast. You are entitled to participate in the Annual Meeting only if you are a shareholder of record as of the close of business on April 8, 2024, the record date, or hold a valid proxy for the Annual Meeting. No physical in-person meeting will be held.
You do not have to register in advance to attend the virtual meeting. To attend and participate in the virtual meeting, please visit www.virtualshareholdermeeting.com/HGBL2024 and enter the 16-digit control number included on your proxy card. Whether or not you plan to attend the virtual annual meeting, we encourage you to vote and submit your proxy in advance of the meeting by one of the methods described under “Voting and Other Information” below. During the meeting, you may simply complete, signsubmit questions, vote, and returnexamine our shareholder list.
The online meeting will begin promptly at 9:00 a.m. (Pacific Time) on June 5, 2024. We encourage shareholders to log in to the enclosedwebsite and access the webcast early, beginning approximately 15 minutes before the
4
Annual Meeting’s 9:00 a.m. start time, to ensure you can hear the streaming audio before the Annual Meeting starts. If you experience technical difficulties, please contact the technical support telephone number posted on the virtual meeting website, www.virtualshareholdermeeting.com/HGBL2024. The virtual meeting platform is fully supported across browsers and devices running the most updated version of applicable software and plug-ins. Please ensure that you have a strong internet connection wherever you intend to participate in the meeting.
A link to a replay of the Annual Meeting will be available on the Investors Relations section of our website (www.hginc.com) under “Shareholder Meetings” approximately 24 hours after the meeting ends and will remain available on our website for one month following the meeting.
Can I Ask Questions at the Virtual Annual Meeting?
Shareholders as of our record date who attend and participate in our virtual Annual Meeting at www.virtualshareholdermeeting.com/HGBL2024 will have an opportunity to submit questions live via the internet during a designated portion of the meeting. Shareholders must have available their 16-digit control number included on their proxy card.
What Proposals Will Be Voted on at the Annual Meeting?
There are four proposals scheduled to be sendingvoted on at the Annual Meeting:
Our Board of Directors (the “Board”) recommends that you vote your shares (1) “FOR” the attached Noticeelection of Ms. Sinsley, (2) “FOR” the adoption of our Second Amended and Restated Articles of Incorporation, (3) “FOR” the ratification of the appointment of UHY LLP as our independent auditor for the fiscal year ending December 31, 2024, and (4) “FOR” advisory approval of the Company’s compensation of its named executive officers as disclosed in this Proxy Statement.
VOTING AND OTHER INFORMATION
Who Is Entitled to Vote?
April 8, 2024 is the record date for the Annual Meeting and the enclosed proxy card on or about July 8, 2005 to all stockholders. Stockholders whoMeeting. If you owned Accerisshares of our common stock or Series N Preferred Stock at the close of business on June 9, 2005 (Record Date)April 8, 2024, you are entitled to one vote for each sharevote. As of April 8, 2024, we had 37,336,392 shares of common stock they held on that date on all matters properly brought beforeand 563 shares of Series N Preferred Stock outstanding and entitled to vote at the Annual Meeting. Similarly, holders
How Many Votes Do I Have?
As of Series N preferred stock are entitled to vote with the common stock, voting together and not as separate classes, on an “as-converted” basis.
Class of Stock |
| Shares |
|
| Equivalent |
| ||
Common Stock |
|
| 37,336,392 |
|
|
| 37,336,392 |
|
Series N Preferred Stock |
|
| 563 |
|
|
| 22,520 |
|
Total Votes at Annual Meeting of Shareholders |
|
| 37,336,955 |
|
|
| 37,358,912 |
|
5
What proposals will be addressedIs the Difference Between Holding Shares as a Shareholder of Record and as a Beneficial Owner?
Many of our shareholders hold their shares through a broker or other nominee rather than directly in their own name. As summarized below, there are some differences between shares held of record and those owned beneficially.
Shareholder of Record
If your shares are registered directly in your name with our transfer agent, Equiniti Trust Company, you are considered, with respect to those shares, the shareholder of record and these proxy materials are being sent to you directly by Heritage Global. As the shareholder of record, you have the right to grant your voting proxy to the proxies listed on the proxy card or to vote online in person at the Annual Meeting?
Beneficial Owner
If your shares are held in a stock brokerage account or by another nominee, you are considered the following proposalsbeneficial owner of shares held in “street name,” and these proxy materials are being forwarded to you by your broker or other nominee who is considered, with respect to those shares, the shareholder of record. As the beneficial owner, you have the right to direct your broker or nominee how to vote your shares and are also invited to attend the Annual Meeting. However, because you are not the shareholder of record, you may only vote these shares in accordance with materials and instructions provided by your broker or other nominee for voting your shares, which may also allow you to use the internet or a toll free telephone number to vote your shares.
How Do I Vote at the Annual Meeting:
All shareholders may vote at the Annual Meeting by logging into www.virtualshareholdermeeting.com/HGBL2024 and following the instructions provided on the website. If your shares are presentregistered in person or byyour name, to vote you will need your 16-digit Control Number provided with your proxy a quorum will be present and business can be transacted. If a quorum is not present, the Annual Meeting may be postponed to a later date when a quorum is obtained. Abstentions and broker non-votes are counted for purposes of determining the presence of a quorum for the transaction of business but are not counted as an affirmative vote for purposes of determining whether a proposal has been approved.
How Do I Vote by Proxy?
If you to complete, sign and dateare a shareholder of record, you can vote by mailing in the enclosed proxy card and return it promptly inor you can use one of the envelope provided. Returningalternatives below:
Please refer to the specific instructions set forth on the enclosed proxy card. In addition, please have the validation details, located on the proxy card, available when voting your shares. If you choose to vote your shares by telephone or through the internet, there is no need for you to mail back your proxy card.
If you hold your shares in street name, your broker or other nominee will not affectprovide you with materials and instructions for voting your rightshares, which may allow you to attenduse the internet or a toll free telephone number to vote your shares.
May I Revoke My Proxy?
Yes. If you change your mind after you vote, you may revoke your proxy by following any of the procedures described below. To revoke your proxy:
6
If you properly fillhold your shares in street name, your broker or other nominee will provide you with instructions on how to revoke your proxy.
What Votes Need to be Present to Hold the Annual Meeting?
To have a quorum for our Annual Meeting, persons must be present, in person or by proxy, cardrepresenting a majority of the shares issued and send it to us in timeoutstanding and entitled to vote your “proxy” (one ofat the individuals named on your proxy card) will vote your shares as you have directed. If you sign the proxy card but do not make specific choices, your proxy will vote your shares as recommended by the Board of Directors as follows:
What Vote Is Required to Approve Each Proposal?
Proposal No. 1 - Election of Director | The election of |
Proposal No. 2 - Adoption of |
The adoption of our |
Proposal No. 3 - Ratification of Appointment of Independent Auditor | The ratification of the appointment of |
Proposal No. 4 - Advisory Vote on Executive Compensation | The approval, on an advisory, non-binding basis, of the Company’s compensation of its named executive officers requires the affirmative vote of a majority of the votes entitled to be cast by shareholders who are present in person or represented by proxy at the Annual Meeting and entitled to vote. |
How Are Votes Counted?
Proposal No. 1 - Election of Director
For Proposal No. 1, you may:
Proposal No. 2 - Adoption of Second Amended and Restated Articles of Incorporation
For Proposal No. 2, your vote may be cast “FOR” or “AGAINST” or you may “ABSTAIN.”
Proposal No. 3 - Ratification of Appointment of Independent Auditor
For Proposal No. 3, your vote may be cast “FOR” or “AGAINST” or you may “ABSTAIN.”
Proposal No. 4 – Advisory Vote on Executive Compensation
For Proposal No. 4, your vote may be cast “FOR” or “AGAINST” or you may “ABSTAIN.”
How Would My Shares Be Voted if I Do Not Specify How They Should Be Voted?
If any other matter is presented,you sign your proxy card with no further instructions, your shares will votebe voted in accordance with his best judgment. At the time this proxy statement wentrecommendations of the Board. We will appoint one or more inspectors of election to press, we knewcount votes cast at the meeting or by proxy.
As noted above, if your shares are held in a stock brokerage account or by another nominee, your broker or nominee will provide you with materials and instructions for you to use in directing your broker or nominee as to how to vote your shares. New York Stock Exchange (“NYSE”) Rule 452 provides that brokers and other nominees may not exercise their voting discretion on specified non-routine matters without receiving instructions from the beneficial owner of no mattersthe shares. Because Rule 452 applies specifically to securities brokers, virtually all of whom are governed
7
by NYSE rules, Rule 452 applies to all companies listed on a national stock exchange, including companies (such as the Company) listed on the Nasdaq Stock Market (the “Nasdaq”).
We expect that neededthe proposals regarding the adoption of the Second Amended and Restated Articles of Incorporation (Proposal No. 2) and the ratification of the appointment of UHY LLP as the Company’s independent auditor for the fiscal year ending December 31, 2024 (Proposal No. 3) to be actedconsidered “routine” matters. Accordingly, if your shares are held through a broker or other nominee, that person will have discretion to vote your shares on Proposal No. 2 and Proposal No. 3 if you fail to provide instructions. On the other hand, the election of the Class III director (Proposal No. 1), and the approval of named executive officer compensation (Proposal No. 4) will each be considered a “non-routine” matter. Thus, if you do not give your broker or other nominee specific instructions on how to vote your shares with respect to Proposal No. 1 and Proposal No. 4, your broker or other nominee will inform the inspector of election that it does not have the authority to vote on that matter with respect to your shares. This is generally referred to as a “broker non-vote.” A broker non-vote may also occur if your broker or other nominee fails to vote your shares for any reason. Therefore, if you hold your shares through a broker or other nominee,please instruct that person regarding how to vote your shares on at least Proposal No. 1 and Proposal No. 4.
What Is the Annual Meeting other than those discussed in this Proxy Statement.
With respect to Proposal No. 1, you may revoke it at any time before itvote “FOR” the director nominee or you may “WITHHOLD” from voting with respect to the director nominee. A vote to withhold or a broker non-vote will not affect the outcome of the election, because the director nominee is exercised. You may revoke your proxy in any one of three ways:
What Are the Costs of Soliciting These Proxies and Who Will Pay Them?
The Company will pay all the costs of soliciting these proxies. Although we are mailing these proxy materials, our directors and employees may also solicit proxies by telephone, e-mail or other electronic means of communication or in person. We will reimburse our transfer agent and brokers, nominees and other fiduciaries for the expenses they incur in forwarding the proxy materials to you.
Where Can I Find the Voting Results?
We will publish the voting results by filing a Current Report on Form 8-K, which we will file with the SEC within four business days of our Annual Meeting.
Do Directors Attend the Annual Meeting.Meeting?
Although we do not have a formal policy regarding director attendance at shareholder meetings, we encourage our directors to attend our annual meeting of shareholders and special meetings of shareholders.
Can a Shareholder Communicate Directly with Our Board? If So, How?
Shareholders and other interested parties may contact any member (or all members) of the Board, any Board committee or any chair of any such committee by mail. To communicate with the Board, any individual director or any group or committee of directors, correspondence should be addressed to the Board or any such individual director or group or committee of directors by either name or title. All such correspondence should be sent to the Secretary of Heritage Global at 12625 High Bluff Drive, Suite 305, San Diego, California, 92130.
All communications received as set forth in the preceding paragraph will be opened by an executive officer of the Company for the sole purpose of determining whether the contents represent a message to our directors. Any contents that are not in the nature of advertising or promotions of a product or service, or are not patently offensive material, will be forwarded promptly to the addressee. In the case of communications to the Board or any group or committee of directors, the executive officers will make sufficient copies of the contents to send to each director who is a member of the group or committee to which the envelope is addressed.
8
PROPOSAL NO. 1: ELECTION OF CLASS III DIRECTOR
General
Our Amended and Restated Bylaws (the “Bylaws”) divide our Board into three classes with the terms of office of each class ending in successive years. Our Bylaws empower our Board to fix the exact number of directors and appoint persons to fill any vacancies on the Proposals
Following a recommendation from the Record Date, Counsel Communications LLC, a Delaware limited liability company formerly known as Counsel Springwell Communications LLC (Counsel Communications), and Counsel Corporation (US), both indirect wholly-owned subsidiaries of Counsel Corporation, collectively hold[17,517,269] shares of our common stock, representing approximately[92%] of the votes entitled to be cast on any proposal brought before our stockholders. Counsel Communications has informed us that it intends to vote such shares
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE ELECTION OF
THE NOMINEE AS A DIRECTOR OF THE COMPANY.
The nominee has consented to being named as a right of a stockholder to dissent and obtain payment for shares. Under Proposal 2, our stockholders have a right to assert appraisal rights if the sale of substantially all assets of our wholly-owned subsidiary, Acceris Communications Corp., is approved and to receive the “fair value” of their shares upon compliance with the requirements of the Florida laws. These rights are explaineddirector nominee in detail in the Proposal 2 discussion in the section entitled “Appraisal Rights” which begins on page43 of this Proxy Statement. The appraisal rights provisions of the Florida laws are included as Appendix A to this Proxy Statement. We urge you to read the “Appraisal Rights” discussion of this Proxy Statement and has agreed to serve for the attached provisionsthree-year term to which she has been nominated, if elected. It is the intention of the Florida Actpersons named as proxies, subject to any direction to the contrary, to vote in favor of the candidate nominated by the Board. We know of no reason why the nominee is unable to serve as a director. If the nominee is unable to serve, your proxy may vote for another nominee proposed by the Board, or the Board may reduce the number of directors to be elected. If any director resigns, dies or is otherwise unable to serve out his term, or if you wish to exercise your appraisal rightsthe Board increases the number of directors, the Board may fill the vacancy.
We have set forth below information with respect to Proposal 2.
Nominee for director; (ii) each of the Named OfficersElection at this Annual Meeting (To Term Expiring in the Summary Compensation Table; (iii) all executive officers and directors2027)
Barbara Sinsley, age 61, has served as a Class III director of the Company as a group; and (iv) all those known by us to be beneficial owners of more than five percent of our common stock. As of the Record Date, all of the present directors, as a group of four persons, own beneficially[26,419] shares (a beneficial ownership of less than 1%), and all of our present directors and executive officers, as a group often persons, own beneficially[63,919] shares (a beneficial ownership of less than 1%) of our common stock.
Name and Address of Beneficial Owner (1) | Number of Shares Beneficially Owned | Percentage of Common Stock Beneficially Owned(2) | ||||
| Allan C. Silber | 0 | (3) | * | % | ||
| Hal B. Heaton | [7,948] | (4) | * | % | ||
| Henry Y.L. Toh | [18,471 | ](5) | * | % | ||
| Samuel L. Shimer | 0 | (6) | * | % | ||
| James G. Ducay | [37,500] | (4) | * | % | ||
| David B. Silverman | 0 | * | % | |||
All Executive Officers and Directors as a Group (10 people) | [63,919] | * | % | |||
Directors With Terms of Office That Will Continue After This Meeting
Directors With Terms Expiring in 2025
Samuel L. Shimer, age 60, was appointed as a Class III director in SeptemberApril 2001 and was appointed as Chairman of the Board in November 2001, a position he held until October, 2004, at which pointMarch 2020. Mr. Shimer has extensive expertise in mergers and acquisitions, including transactions that occurred while he was succeeded by Mr. James Meenan. Upon Mr. Meenan’s resignation from the board in March 2005, in connection with the Company’s expected salean officer of the telecommunications segment, Mr. Silber was re-appointed Chairman. Mr. Silber is the Chairman and CEO of Counsel Corporation, which he founded in 1979. Mr. Silber attended McMaster University and received a B.S. degree from the University of Toronto.
9
Kelly D. Murumets
Ross Dove, age 71, the Chief Executive Officer and President of the Company, was appointed by the Board as a Class I director in May 2015. Mr. Dove was appointed our Chief Executive Officer in May 2015 and has served as Co-Managing Partner of Heritage Global Partners, Inc., a Company subsidiary (“HGP”) since its founding in October 2009. Together with his brother, Kirk Dove, Mr. Ross Dove joined our company when HGI acquired HGP in February 2012. Mr. Dove began his career in the auction business over thirty years ago, beginning with a small family-owned auction house and helping to expand it into a global firm, DoveBid, which was sold to a third party in 2008. The Messrs. Dove remained as global presidents of the business until September 2009, and then formed HGP in October 2009. During his career, Mr. Dove has been actively involved with advances in the auction industry such as theatre-style auctions, which was a first step in migrating auction events onto the Internet. Mr. Dove has been a member of the National Auctioneers Association since 1985, and a founding member of the Industrial Auctioneers Association. He served as a director until June 15, 2004.of Critical Path from January 2002 to January 2005 and has served on the boards of several venture funded companies. Ross Dove is the brother of Kirk Dove and uncle of Nicholas Dove.
Directors With Terms Expiring in 2026
Michael Hexner, age 71, has served as a Class II director of the Company since August 2016. Mr. Weintraub joined CounselHexner has expertise and extensive experience in June 1983executive leadership with growing businesses. Mr. Hexner co-founded Wheel Works in 1976, and grew the business, as Vice President, Financeits Chief Executive Officer, to become the largest independent tire chain in the United States. Mr. Hexner was the co-founder of Pacific Leadership Group in 2001, served as the Chairman and Chief Executive Officer of both SmartPillars and DealerFusion, was President of the Northern California Golf Association and Co-Founder and President of Youth on Course. Mr. Hexner currently serves as COO of LeadLander, special advisor to the CEOs of Laboratory Equipment Company, and Rondo Energy and is managing partner for The Lane. Mr. Hexner received a Bachelor of Arts in Political Science from Williams College, completed an executive management program at The Haas School of Business of the University of California, is a certified FINRA arbitrator and received a master’s degree in negotiation and dispute resolution from Creighton University.
David Ludwig, age 67, was appointed by the Board as a Class II director in March 2021 to fill the vacancy created by the resignation of Allan Silber. Mr. Ludwig currently serves as the President of Heritage Global’s Financial Officer.Assets division, which comprises the Company’s National Loan Exchange (“NLEX”) and Heritage Global Capital subsidiaries. He joined Heritage Global in 2014 with the Company’s acquisition of NLEX, which he developed from its start as a post-Resolution Trust Corporation (RTC) sales outlet to the nation’s leading broker of charged-off credit card and consumer debt accounts. With more than 25 years of experience in the financial industry, Mr. Ludwig is considered a leading pioneer in the debt sales industry, and has been a featured speaker at many industry conferences. He has also been quoted in numerous publications including the New York Times, LA Times, Collections and is an officerCredit Risk, Collector Magazine, and directorserves as consultant and expert witness within the industry. Since introducing NLEX to financial institutions in the early 1990s, Mr. Ludwig has supervised the sale of various Counsel subsidiaries. He has been Secretaryover 5,000 portfolios with face value of Counsel since 1987 and Executive Vice President since January 2005.$150 billion. Mr. Weintraub receivedLudwig holds a B.A. degreeBachelor of Science Degree in CommerceEconomics from the University of Toronto in 1969, qualified as a Chartered Accountant with Clarkson, Gordon (now Ernst & Young LLP) in 1972 and received his law degree (LL.B.) from Osgoode Hall Law School, York University in 1975. Mr. Weintraub is a director of Counsel Corporation, the parent company of Acceris.
10
William Burnham, age 53, was named Executive Vice President and Chief Operating Officer of Acceris in October 2003. From December 2002 until October 2003, Mr. Ducay served as President of the Company’s Enterprise business. Previously, from April 2000 to December 2002, Mr. Ducay was Executive Vice President and Chief Operating Officer of RSL COM USA (“RSL COM”) with responsibility for Marketing, Sales and Account Services, Engineering and Operations and Information Technology. RSL COM filed for bankruptcy protection under Chapter 11 in March 2001. Before joining RSL COM, Mr. Ducay was Vice President of Marketing and Sales for Ameritech Interactive Media Services from February 1998 to April 2000 where he was responsible for managing Ameritech’s Internet products and related sales channels. He also served as Managing Director and Vice President for Bell Atlantic/NYNEX. Mr. Ducay has a M.A. degree in Engineering from the University of Illinois and an M.B.A. degree from the University of Chicago.
Diversity Matrix
The following table summarizes certain self-identified characteristics of our directors, in accordance with Nasdaq Listing Rules 5605(f) and direction5606. Each term used in the table has the meaning given to it in the rule and related instructions.
Heritage Global Inc. Board Diversity Matrix as of April 23, 2024
Board Size: |
|
|
|
|
|
|
|
|
|
|
|
| ||||
Total Number of Directors |
|
| 7 |
|
|
|
|
|
|
|
|
|
| |||
Gender Identity: |
| Female |
|
| Male |
|
| Non-Binary |
|
| Did Not |
| ||||
Directors |
|
| 2 |
|
|
| 5 |
|
|
| — |
|
|
| — |
|
Demographic Background |
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|
|
|
|
|
|
|
|
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| ||||
African American or Black |
|
| — |
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|
| — |
|
|
| — |
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|
| — |
|
Alaskan Native or Native American |
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| — |
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| — |
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|
| — |
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|
| — |
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Asian |
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| — |
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|
| — |
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|
| — |
|
|
| — |
|
Hispanic or Latinx |
|
| — |
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|
| — |
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| — |
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| — |
|
Native Hawaiian or Pacific Islander |
|
| — |
|
|
| — |
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|
| — |
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|
| — |
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White |
|
| 2 |
|
|
| 5 |
|
|
| — |
|
|
| — |
|
Two or More Races or Ethnicities |
|
| — |
|
|
| — |
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|
| — |
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| — |
|
LGBTQ+ |
|
| — |
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|
| — |
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| — |
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| — |
|
Did Not Disclose Demographic Background |
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| — |
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| — |
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| — |
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| — |
|
11
CORPORATE GOVERNANCE
Overview
In General
Our Board has adopted corporate governance policies, including a Code of Conduct (“Code of Conduct”), corporate governance guidelines and charters for each of our Compensation Committee, Audit Committee, and Corporate Governance Committee. The full text of our Code of Conduct and each committee charter is available in the Investor Relations-Corporate Profile & Governance section of our internet website located at www.hginc.com. A copy of the BoardCode of DirectorsConduct is also available in print, free of charge, to any shareholder who requests it by writing to Heritage Global Inc., 12625 High Bluff Drive, Suite 305, San Diego, California, 92130. We intend to post amendments to or untilwaivers, if any, from our Code of Conduct at this location on our website, in each case to the extent such timeamendment or waiver would otherwise require the filing of his/her resignation or death.
In addition, you may request copies of the StateCode of California inConduct and for the Countycommittee charters by contacting the Company using the following information:
Telephone: (203) 972-9200
E-mail: investorrelations@hginc.com
Other Corporate Governance Highlights
Board of Directors
Our Board oversees our business affairs and monitors the performance of management. The Board of Directors held fifteen meetings duringis not involved in day-to-day operations. The directors keep themselves informed by discussing matters with the fiscal year ended December 31, 2004. President and Chief Executive Officer, other key executives and our principal external advisors such as legal counsel, outside auditors, investment bankers and other consultants, by reading the reports and other materials that we send them regularly and by participating in Board and committee meetings.
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The Board meets quarterly to review the Company’s operating results, annually to review and approve the Company’s strategy and budget, and periodically throughout the year as necessary. Material matters such as acquisitions and dispositions, investments and business initiatives are approved by the full Board. The Board met four times during 2023. All directors attended 100% of Directors has designated three standing committees: the Audit Committee,aggregate number of meetings of the Compensation Committee,Board and the Special Committee of Independent Directors. We do not have a nominating or a corporate governance committee or any committees serving similar functions. However, corporate governance functions are included in the Audit Committee Charter.
Director Independence
Our Board has affirmatively determined that each director other than Messrs. Dove and Ludwig are “independent,” as defined by the Nasdaq Stock Market Rules. Under the Nasdaq Stock Market Rules, a director can be independent only if the director does not trigger a categorical bar to independence and our Board affirmatively determines that the director does not have a relationship which, in the opinion of our Board, would interfere with the exercise of independent judgment by the director in carrying out the responsibilities of a director.
Board Leadership Structure
The Board regularly considers the appropriate leadership structure for the Company and has concluded that the Company should maintain flexibility to select our Chairman and Board leadership structure from time to time. Thus, the Company does not have a formal policy with respect to separation of the offices of Chairman of the Board and Chief Executive Officer. The Company’s Restated By-laws permit the Board to choose a Chairman of the Board from among its members, and the position of Chairman of the Board is currently held by Samuel L. Shimer. The directors believe that, at the Company’s current stage, Mr. Shimer’s history with the Company, combined with his knowledge of its operations and strategic goals, make him qualified to serve as Chairman of the Board. In addition, the Board does not believe, based on the Company’s current size and scale of operations, a lead independent director is necessary to effectively oversee the Company’s strategic priorities. The positions of President and Chief Executive Officer of the Company are currently held by Ross Dove. The directors believe that, at the Company’s current stage, Mr. Dove’s in-depth knowledge of the Company’s operations, strategic goals, and expansive industry experience make him qualified to serve as Chief Executive Officer. The Board believes that this governance structure, which separates the Chairman and Chief Executive Officer roles, promotes balance between the Board’s independent authority to oversee our business and the Chief Executive Officer and his management team who manage the business on a day-to-day basis.
Committees of the Board
The Board has established an Audit Committee, a Compensation Committee, and a Corporate Governance Committee. Our Audit Committee, Compensation Committee, and Corporate Governance Committee consist exclusively of members with whom the Board has affirmatively determined qualify as independent directors under the applicable requirements of the Nasdaq Stock Market Rules. All of our committee charters are available on the Investor Relations page of our website, www.hginc.com.
Audit Committee
The Audit Committee is composed entirely of directors whom the Board has affirmatively determined are independent as defined by the Nasdaq Stock Market Rules and Rule 10A-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The members of the Audit Committee are Kelly Sharpe, Samuel Shimer and William Burnham. Ms. Sharpe serves as chair of the Audit Committee.
The Board has also determined that each member of the Audit Committee satisfies the financial literacy requirements of the Nasdaq Stock Market Rules and that Ms. Sharpe is an “audit committee financial expert,” as that term is defined under Item 407(d) of Regulation S-K. In making its determination that Ms. Sharpe qualifies as an “audit committee financial expert,” the Board considered her education and the nature and scope of Ms. Sharpe’s prior experience. The members of the Audit Committee are reviewed at least annually by the Board.
The primary purpose of our Audit Committee is to oversee the integrity of our financial statements, our financial reporting process, the independent accountants’ qualifications and independence, the performance of the independent accountants and our compliance with legal and regulatory requirements on behalf of our Board. In particular, our Audit Committee performs the following key functions, among others:
13
| Long-Term Compensation | ||||||||||||||||||||||||
Annual Compensation (in absolute dollars) | Awards | Payouts | ||||||||||||||||||||||
Name and Principal Position(5) | Year | Salary($) | Bonus($) | Other Annual Compensation ($) | Restricted Stock Awards ($) | Securities Underlying Options (#) | LTIP Payouts ($) | All Other Compensation($) | ||||||||||||||||
| Allan Silber(1) | 2004 | $ | 275,000 | — | — | — | — | — | — | |||||||||||||||
| Director and Chief Executive Officer | 2003 | — | — | — | — | — | — | — | ||||||||||||||||
| 2002 | — | — | — | — | — | — | — | |||||||||||||||||
| Kenneth L. Hilton (2) | 2004 | $ | 275,000 | $ | — | $ | 2,010 | — | — | — | — | |||||||||||||
| Executive Vice President, | 2003 | 275,000 | 55,000 | — | — | 150,000 | — | — | ||||||||||||||||
| Sales and Marketing | 2002 | 183,333 | — | — | — | — | — | — | ||||||||||||||||
| James G. Ducay (3) | 2004 | $ | 275,000 | $ | 100,000 | $ | 450 | — | — | — | — | |||||||||||||
| Executive Vice President, | 2003 | 275,000 | — | — | — | 150,000 | — | — | ||||||||||||||||
| Chief Operating Officer | 2002 | 12,500 | — | — | — | — | — | — | ||||||||||||||||
| David B. Silverman(4) | 2004 | $ | 133,864 | $ | 60,000 | $ | 200 | — | 75,000 | — | — | |||||||||||||
| Senior Vice President and | 2003 | — | — | — | — | — | — | — | ||||||||||||||||
| General Counsel | 2002 | — | — | — | — | — | — | — | ||||||||||||||||
reviewing and addressing conflicts of interests of directors and executive officers; and
The Audit Committee met four times in 2023.
Compensation Committee
The Compensation Committee is composed entirely of directors who are independent as defined by the Nasdaq Stock Market Rules. The members of the Compensation Committee are Samuel Shimer and Michael Hexner, with Mr. Hexner serving as chair of the Compensation Committee.
The principal responsibilities of our Compensation Committee are to assist our Board by ensuring that our officers and key executives are compensated in accordance with our total compensation objectives and policies and to develop and implement these objectives and policies. In particular, the Compensation Committee is responsible for the following key functions, among others:
For additional information regarding the committee’s processes and procedures for considering and determining executive compensation, including the role, if any, of executive officers in determining the amount or form of executive compensation, see “Compensation Discussion and Analysis” below.
The Compensation Committee met four times in 2023.
Corporate Governance Committee
The Corporate Governance Committee is composed entirely of directors who are independent, as defined by the Nasdaq Stock Market Rules. The members of the Corporate Governance Committee are Barbara Sinsley and Michael Hexner. Ms. Sinsley serves as chair of the Corporate Governance Committee.
The purpose of our Corporate Governance Committee is to assist in shaping the corporate governance of the Company, and to exercise general oversight with respect to nominations to, and the governance of, the Board and related federal securities laws matters. The primary responsibilities of the Corporate Governance Committee include:
The Corporate Governance Committee met four times in Last Fiscal Year2023.
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Risk Oversight
Together with the Board’s standing committees, the Board is responsible for ensuring that material risks are identified and managed appropriately. The various committees appointed by the Board have, within their oversight responsibilities, the obligation to assess for, and initiate mitigating actions to, specific areas of risk within their committee expertise. Each committee regularly reports to the Board.
As part of its responsibilities as set forth in its charter, the Audit Committee is responsible for overseeing the quality and integrity of the Company’s financial statements and other financial information, financial reporting process, internal controls, procedures for financial reporting and the internal audit function. In addition, the Audit Committee is in consultation with the Company's outside auditors to assure the Audit Committee has reasonably assessed financial reporting risks generally, as well as those unique to the Company, and to ensure a proper mitigation of potential risks so identified.
The Compensation Committee considers risk in connection with its design of compensation programs for Company executives. Considerations include a periodic review of the Company's compensation plans to assure that individual compensation is structured to incentivize against overall risk.
The Board and its committees regularly review material operational, cybersecurity and compliance risks with senior management, and strive to provide an open avenue of communication among the Company’s independent auditor and management as a means to anticipate, identify and address any potential risk.
Responsibility for cybersecurity risk management is shared by management, the Board, and its Corporate Governance Committee. To more effectively prevent, detect and respond to information security threats, the Company has established a Management Cybersecurity Committee (MCC) consisting of the Chief Financial Officer, the Executive Vice President, General Counsel and Secretary, the Chief Marketing Officer, business unit leaders, the third-party IT consultant, and other internal and external IT resources. The MCC regularly reports to the Corporate Governance Committee, which in turn reports to the Audit Committee and the Board. The Board also receives an annual update from our senior leadership on cybersecurity and information security matters. The Corporate Governance Committee regularly briefs the Board on these matters, and the Board also receives periodic briefings on cyber threats to enhance our directors’ awareness on cybersecurity and information security issues
15
Director Nomination Process
The Corporate Governance Committee has responsibility for the director nomination process. The Corporate Governance Committee identifies potential nominees for directors from various sources, including recommendations by management and other Board members. The Corporate Governance Committee then reviews the appropriate skills and characteristics required of Board members in the context of the current composition of the Board. The Corporate Governance Committee considers, among other things, a potential director’s independence and conflicts of interests, character and integrity, financial literacy, education and business experience and available time to devote to Board matters. The Corporate Governance Committee seeks candidates from diverse business and professional backgrounds with outstanding integrity, achievements, judgment and such other skills and experience that would enhance the Board’s ability to serve the long-term interests of our shareholders. In addition, the Corporate Governance Committee has made a concerted effort in recent years to identify female candidates. The Corporate Governance Committee considers diversity as one of a number of factors in identifying nominees for director. The Committee views diversity broadly to include diversity of experience, skills and viewpoint, as well as other diversity concepts such as race, gender and disability. The Corporate Governance Committee’s objective is to assemble a slate of directors that can best fulfill the Company’s goals and promote the interests of shareholders. The Corporate Governance Committee believes these practices have been effective.
The Corporate Governance Committee will consider a shareholder’s recommendation for director, but the Corporate Governance Committee has no obligation to nominate such candidates for election by the Board. Assuming that appropriate biographical and background material is provided for candidates recommended by shareholders, the Corporate Governance Committee will evaluate those candidates by following substantially the same process and applying substantially the same criteria as for candidates recommended by other sources. If a shareholder has a suggestion for candidates for election, the shareholder should mail it to: Secretary, Heritage Global Inc., 12625 High Bluff Drive, Suite 305, San Diego, California, 92130. No person recommended by a shareholder will become a nominee for director and be included in the Company’s Proxy Statement unless the Corporate Governance Committee recommends, and the Board approves, such person.
If a shareholder desires to nominate a person for election as director at a shareholders’ meeting, that shareholder must comply with Article V, Section 8 of the Company’s Restated By-laws as described below under “Shareholder Proposals for the 2025 Annual Meeting of Shareholders.”
16
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
As part of the operations of NLEX, the Company leases office space in Edwardsville, IL that is owned by Mr. Ludwig, Director and President of the Company’s Financial Assets division (which encompasses NLEX). The total amount paid to the related party was approximately $113,000 and $109,000 for the fiscal years ended December 31, 2023 and 2022, respectively, and is included in selling, general and administrative expenses in the consolidated statements of income included in our Annual Report on Form 10-K. All of the payments in both 2023 and 2022 were made to Mr. Ludwig.
The Company employs certain immediate family members of Management who are eligible to participate in benefit programs generally available to employees. Alexander Dove, HGP Vice President of Operations, and Grayson Dove, HGP Director of Operations, are both sons of Ross Dove, Chief Executive Officer. In 2023 and 2022, Alexander Dove received total compensation of $180,000 and $203,153, respectively. In 2023 and 2022, Grayson Dove received total compensation of $163,004 and $154,994, respectively. Thomas Ludwig, NLEX General Counsel and Senior Vice President, is the son of David Ludwig, President of Heritage Global’s Financial Assets division, and received total compensation of $1,772,068 and $484,995 in 2023 and 2022, respectively. Each of these employees received total compensation in 2024 through the date hereof at approximately the same rate as 2023. Additionally, Kirk Dove, the brother of Ross Dove and the father of Nicholas Dove, President, Industrial Assets division, is a Senior Advisor to the Company and received total compensation of $214,029 in both 2023 and 2022, and has been compensated at approximately the same rate during 2024.
While the Board currently does not have a written policy with respect to approval of transactions with related parties, it is the policy of the Board to approve any transactions with related persons through the full Board or a committee of independent directors. Any approvals would be reflected in the minutes of the meeting of the Board at which the Board approved the transaction. We have adopted a written policy, however, on conflicts of interest, which appears in our Code of Conduct. The Code of Conduct states that a “conflict of interest” exists when any relationship, influence or activity of an officer, director or employee might impair, or have the appearance of impairing, his/her ability to make objective and fair decisions when performing his/her job. Under the Code of Conduct, officers, directors and employees are to avoid actual conflicts of interest, but also to avoid the appearance of a conflict. Transactions or relationships that may reasonably be expected to give rise to conflicts of interest are not permitted. Potential, apparent or actual conflicts of interest must be reported to management.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table shows information about stock option grants to the Named Officers during fiscal 2004. These options are included in the Summary Compensation Table above. These gains are calculated assuming annual compound stock price appreciationsets forth, as of 5%April 8, 2024 and 10% from the date the option was originally granted to the end of the option term. The 5% and 10% assumed annual compound rates of stock price appreciation are required by Securities and Exchange Commission rules, and are not our estimate or projection of future stock prices.
Individual Grants | |||||||||||||||||||
Number of Securities Underlying Options | Percent of Total Options Granted to Employees in | Exercise Of Base Price | Potential Realizable Value at Assumed Annual Rates Of Stock Price Appreciation For Option Term | ||||||||||||||||
Name | Granted (#) | Fiscal Year | ($/Sh) | Expiration Date | 5% ($) | 10% ($) | |||||||||||||
| Allan C. Silber | — | — | — | — | — | — | |||||||||||||
| Kenneth L. Hilton | — | — | — | — | — | — | |||||||||||||
| James G. Ducay | — | — | — | — | — | — | |||||||||||||
| David B. Silverman | 75,000 | 20.9% | $1.39 | July 19, 2011 | $42,440 | $98,904 | |||||||||||||
Name | Shares Acquired On Exercise (#) | Value Realized ($) | Number of Securities Underlying Unexercised Options At Fiscal Year- End (#) Exercisable/Unexercisable | Value of Unexercised In- The-Money Options At Fiscal Year-End ($) Exercisable/Unexercisable (1) | ||||||||
| Allan C. Silber | — | — | — | / | — | — | / | — | ||||
| Kenneth L. Hilton | — | — | 37,500 | / | 112,500 | — | / | — | ||||
| James G. Ducay | — | — | 37,500 | / | 112,500 | — | / | — | ||||
| David B. Silverman | — | — | — | / | 75,000 | — | / | — | ||||
Beneficial ownership is determined according to the rules of the SEC. Beneficial ownership means that a person has or shares voting or investment power of a security, and includes shares underlying options and warrants that are currently exercisable or exercisable within sixty (60) days after the measurement date. The information in the table below is based on December 31, 2004,information supplied by our directors and executive officers and public filings.
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Except as otherwise indicated, we believe that the beneficial owners of the common stock and Series N Preferred Stock listed below have sole investment and voting power with respect to their shares, except where community property laws may apply. Unless otherwise indicated, we deem shares of common stock subject to options that are exercisable within sixty (60) days of April 8, 2024 to be outstanding and beneficially owned by the person holding the options for the purpose of computing percentage ownership of that person, but we do not treat them as outstanding for the purpose of computing the ownership percentage of any other person. We are not aware of any arrangements, including any pledge by any person of securities of the registrant or any of its parents, the operation of which may at a subsequent date result in a change of control of the registrant.
Name and Address of |
| Number of Shares |
|
|
| Percentage of Common Stock |
| |||
Punch & Associates Investment Management, Inc. |
|
| 2,768,005 |
| (3) |
|
| 7.4 | % | |
Topline Capital Partners, LP |
|
| 2,424,680 |
| (4) |
|
| 6.5 | % | |
The Vanguard Group |
|
| 1,893,646 |
| (5) |
|
| 5.1 | % | |
Ross Dove |
|
| 2,302,656 |
|
|
|
| 6.2 | % | |
David Ludwig |
|
| 1,114,304 |
| (6) |
|
| 3.0 | % | |
Samuel L. Shimer |
|
| 315,000 |
| (7) |
| *% |
| ||
Michael Hexner |
|
| 294,604 |
| (8) |
| *% |
| ||
Nicholas Dove |
|
| 200,000 |
| (9) |
| *% |
| ||
Barbara Sinsley |
|
| 80,050 |
| (10) |
| *% |
| ||
Kelly Sharpe |
|
| 74,550 |
| (11) |
| *% |
| ||
William Burnham |
|
| 30,000 |
|
|
| *% |
| ||
All Executive Officers and Directors as a Group (10 people) |
|
| 4,814,953 |
|
|
|
| 12.8 | % | |
____________________ |
| |||||||||
* | % Indicates less than one percent. |
| ||||||||
(1) | Unless otherwise noted, each person or entity named as beneficial owner has sole voting and dispositive power with respect to the shares of stock owned by each of them. Unless otherwise noted, all addresses are c/o Heritage Global Inc. 12625 High Bluff Drive, Suite 305, San Diego, California, 92130. |
| ||||||||
(2) | As to each person or entity named as beneficial owners, that person’s or entity’s percentage of ownership is determined based on the assumption that any options or convertible securities held by such person or entity which are exercisable or convertible within sixty (60) days of April 8, 2024, have been exercised or converted, as the case may be. |
| ||||||||
(3) | Unrelated third party with beneficial ownership greater than 5.0%, based solely upon a Schedule 13G/A filed on February 13, 2023 with the SEC by Punch & Associates Investment Management, Inc., which has sole voting power and sole dispositive power with respect to 2,768,005 shares. The address for the reporting person is 7701 France Ave. So., Suite 300, Edina, MN 55345. |
| ||||||||
(4) | Unrelated third party with beneficial ownership greater than 5.0%, based solely upon a Schedule 13G/A filed on February 12, 2024 with the SEC by Topline Capital Partners, L.P., which has sole dispositive power with respect to 2,424,680 shares. The address for the reporting person is 544 Euclid Street, Santa Monica, CA 90402. |
| ||||||||
(5) | Unrelated third party with beneficial ownership greater than 5.0%, based solely upon a Schedule 13G filed on February 13, 2024 with the SEC by The Vanguard Group, which has sole voting power and sole dispositive power with respect to 1,882,877 shares and shared dispositive power with respect to 10,769 shares. The address for the reporting person is 100 Vanguard Blvd., Malvern, PA 19355. |
| ||||||||
(6) | Includes shares of common stock issuable pursuant to options. Mr. Ludwig’s address is c/o National Loan Exchange Inc., 10 Sunset Hills Professional Center, Floor 1, Edwardsville, IL 62025. |
| ||||||||
(7) | Includes 2,500 shares of common stock issuable pursuant to options. |
| ||||||||
(8) | Includes 62,500 shares of common stock issuable pursuant to options. |
| ||||||||
(9) | Includes 100,000 shares of common stock issuable pursuant to options. |
| ||||||||
(10) | Includes 18,750 shares of common stock issuable pursuant to options. |
| ||||||||
(11) | Includes 18,750 shares of common stock issuable pursuant to options. |
| ||||||||
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INFORMATION ABOUT OUR EXECUTIVE OFFICERS
The Company’s executive officers as of April 23, 2024, are:
Ross Dove, age 71, currently serves as a Class I director and the Chief Executive Officer and President of the Company. Mr. Ross Dove was appointed our Chief Executive Officer in May 2015 and has served as Co-Managing Partner of Heritage Global Partners, Inc., a Company subsidiary (“HGP”) since its founding in October 2009. Together with his brother, Kirk Dove, Mr. Ross Dove joined our company when HGI acquired HGP in February 2012. Mr. Dove began his career in the auction business over thirty years ago, beginning with a small family-owned auction house and helping to expand it into a global firm, DoveBid, which was $0.60 per share.sold to a third party in 2008. The Messrs. Dove remained as global presidents of the business until September 2009, and then formed HGP in October 2009. During his career, Mr. Dove has been actively involved with advances in the auction industry such as theatre-style auctions, which was a first step in migrating auction events onto the Internet. Mr. Dove has been a member of the National Auctioneers Association since 1985, and a founding member of the Industrial Auctioneers Association. He served as a director of Critical Path from January 2002 to January 2005 and has served on the boards of several venture funded companies. Ross Dove is the brother of Kirk Dove and uncle of Nicholas Dove.
Brian Cobb, age 40, currently serves as our Chief Financial Officer and has served in such capacity since May 2022. Prior to his appointment, Mr. Cobb served as the Company’s Vice President of Finance and principal financial officer, and held the positions of Corporate Controller and Director of Financial Reporting since starting with the Company in July 2017. Before joining the Company, Mr. Cobb was a manager in the assurance practice of PricewaterhouseCoopers. Mr. Cobb received a Bachelor of Science from the College of Business Administration at California State University San Marcos.
James Sklar, age 58, currently serves as our Executive Vice President, General Counsel, and Secretary and has served in such capacities since May 2015. From June 2013 to May 2015, Mr. Sklar served as the Executive Vice President and General Counsel of Heritage Global Partners, Inc. Mr. Sklar has more than three decades of relevant legal expertise serving leading worldwide asset advisory and auction services firms. Throughout his career, Mr. Sklar has played a key role in establishing relationships with global alliance partners and implementing international contracts as well as expanding the adoption of the auction sale process in North America, Europe, Asia and Latin America. Mr. Sklar is responsible for all of the Company’s legal matters including negotiating global transactional business alliance documents, managing relationships and contracts with worldwide clients and business partners, and providing legal representation for all of the Heritage Global companies. Mr. Sklar received a Bachelor of Science in economics from the Wharton School of the University of Pennsylvania and a Juris Doctorate from Wayne State University Law School.
David Ludwig, age 67, currently serves as a Class II director and as the President of Heritage Global’s Financial Asset division, which comprises the Company’s National Loan Exchange (“NLEX”) and Heritage Global Capital subsidiaries. He joined Heritage Global in 2014, with the Company’s acquisition of NLEX, which he developed from its start as a post-Resolution Trust Corporation (RTC) sales outlet to the nation’s leading broker of charged-off credit card and consumer debt accounts. With more than 25 years of experience in the financial industry, Mr. Ludwig is considered one of the pioneers in the debt sales industry, and has been a featured speaker at many industry conferences. He has also been quoted in numerous publications including the New York Times, LA Times, Collections and Credit Risk, Collector Magazine, and serves as consultant and expert witness within the industry. Since introducing NLEX to financial institutions in the early 1990’s, Mr. Ludwig has supervised the sale of over 5,000 portfolios with face value of $150 billion. Mr. Ludwig holds a Bachelor of Science Degree in Economics from the University of Illinois.
Nicholas Dove, age 34, currently serves as President, Industrial Assets Division of the Company and has served in such capacity since September 2020. From July 2017 to September 2020, Mr. Dove previously served as Executive Vice President of Sales of Heritage Global Partners since August 2017. From July 2012 to July 2017, Mr. Dove served as one of Heritage Global Partners’ Directors of Sales. Mr. Dove is a licensed auctioneer in multiple states, is a member of the Board of Directors of the Industrial Auctioneers Association and graduated Cum Laude from the W.P. Carey School of Business at Arizona State University. Mr. Dove is the son of Kirk Dove and nephew of Ross Dove.
19
EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
The following sections provide an explanation and analysis of our executive compensation program and the material elements of total compensation paid to each of our named executive officers. Included in the discussion is an overview and description of:
In reviewing our executive compensation program, we considered issues pertaining to policies and practices for allocating between long-term and currently paid compensation and those policies for allocating between cash and non-cash compensation. We also considered the determinations for granting awards, performance factors for our company and our named executive officers, and how specific elements of compensation are structured and taken into account in making compensation decisions. Questions related to the benchmarking of total compensation or any material element of compensation, the tax and accounting treatment of particular forms of compensation and the role of executive officers (if any) in the total compensation process also are addressed where appropriate. In addition to the named executive officers discussed below, we have 83 salaried employees as of April 8, 2024.
Named Executive Officers
Our named executive officers for the last completed fiscal year were as follows:
Overview of our Compensation Committee ReportProgram and Compensation Philosophy and Objectives
We compensate our executive management through a combination of base salaries and profit-driven incentives. We adhere to the following compensation policies, which are designed to support the achievement of our business strategies:
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A core principle of our executive compensation program is the belief that compensation paid to executive officers should be closely aligned with our near- and long-term success, while simultaneously giving us the flexibility to recruit and retain the most qualified key executives. Our compensation program is structured so that it is related to our stock performance and other factors, both direct and indirect, which may influence long-term shareholder value and our success.
We utilize each element of executive compensation to ensure proper balance between our short- and long-term success as well as between our financial performance and shareholder return. In this regard, we believe that the executive compensation program should alignfor our named executive officers is consistent with our financial performance and the interestsperformance of shareholderseach named executive officer. We have not utilized the services of compensation consultants in determining or recommending executive compensation, but may do so in the future.
Role of the Compensation Committee
Our Compensation Committee oversees and executives. The Company’s primary objectiveapproves all compensation and awards made to our executive officers to the extent their compensation is to maximize shareholder value.not determined by preexisting employment agreements. The Compensation Committee seeksreviews the performance and compensation of the executive officers and establishes their compensation accordingly, with consultation from others, including outside third-party consultants, when appropriate.
Elements of Our Named Executive Officer Compensation Program
The compensation we provide to forge a strong link between the Company’s strategic business goals and its compensation goals. The Company’sour named executive compensation programofficers is consistent with the Company’s overall philosophy for all management levels. The Company believes that the more employees are aligned with the Company’s strategic objectives, the greater the Company’s success on both a short term and long term basis. The Company’s executive compensation program has been designed to support the overall Company strategy and objective of creating shareholder value by:
Base Salary
Unless determined pursuant to theirspecified otherwise in an employment agreements,agreement, the base salaries of the Company’sour named executive officers are evaluated annually.periodically. In evaluating appropriate pay levels and salary increases for Company executives,such officers, the Compensation Committee considersuses a subjective analysis considering achievement of the Company’sour strategic goals, level of responsibility, individual performance, and internal equity and external pay practices.
Performance Based Compensation
Performance based awards are designed to focus management attention on key operational goals for the current fiscal year. CompanyOur executives may earn a bonusperformance based compensation based upon achievement of their specific operational goals and achievement by the Companyus or our business unit of its financial targets.
We set performance based compensation based on a subjective analysis of certain performance measures in order to maximize and align the interests of our officers with those of our shareholders. Although performance goals are generally standard for determining awards, we have and will consider additional performance rating goals when evaluating the performance based compensation structure of our executive management. In addition, in instances where the employee has responsibility over a specific area, performance goals may be directly tied to the overall performance of that particular area.
For the years 2023 and 2024, Mr. Ross Dove is eligible for a performance based award on the operating income of the Company, not including the amount of such award. Each year, the amount of such award may range from $30,000 (corresponding to operating income of $3,030,000 for such year) to $1,800,000 (corresponding to operating income of $23,750,000 or more for such year). If earned, the award will be paid 75% in cash, and 25% in
21
restricted stock vesting nine months after the date of grant. The foregoing is conditioned upon Mr. Dove’s continued employment in good standing and is expected to constitute Mr. Dove’s entire performance based compensation for this period. In 2023, Mr. Dove earned a cash award of $675,520 and restricted stock valued at $225,173, granted on March 7, 2024.
Mr. David Ludwig was eligible to receive a performance incentive under the terms of the Addendum to the Employment Agreements of David and Tom Ludwig (the “Addendum”), effective on June 1, 2018. The Addendum provided that each calendar year NLEX would allocate 30% of its Net Operating Income and 20% of its Principal Net Operating Income for cash incentive awards to the employees of NLEX, including Mr. Ludwig. Such cash incentive awards were allocated among the NLEX employees, including Mr. Ludwig, based on Mr. Ludwig’s recommendation to our Board. In 2023, Mr. Ludwig earned a pro-rated cash incentive award pursuant to this arrangement of $584,726 for the period January 1, 2023 to May 31, 2023.
Mr. David Ludwig is eligible to receive a performance incentive under the terms of his Employment Agreement, effective on June 1, 2023. Mr. Ludwig’s employment agreement provides that Mr. Ludwig is entitled to receive a bonus each calendar year in an amount equal to 12% of the net operating income of the Financial Assets Division, subject to adjustment as set forth in Mr. Ludwig’s employment agreement. In 2023, Mr. Ludwig earned a cash bonus pursuant to this arrangement of $727,827 for the period June 1, 2023 to December 31, 2023.
Mr. Nicholas Dove is eligible to receive a performance incentive under the terms of his Employment Agreement, effective on January 1, 2023. Mr. Dove’s employment agreement provides that Mr. Dove is entitled to receive a bonus each calendar year in an amount equal to 10% of the net operating income of the Industrial Assets Division of the Company, subject to adjustment as set forth in Mr. Dove’s employment agreement. In 2023, Mr. Dove received a cash bonus pursuant to this arrangement of $698,017.
As Mr. Ross Dove’s, Mr. David Ludwig’s and Mr. Nicholas Dove’s performance based awards are closely tied to our profitability, we believe the bonus structure does not encourage inappropriate risk-taking on their part.
Equity Incentive Grants
In keeping with our philosophy of providing a total compensation package that favors at-risk components of pay, long-term shareholders. The option grantsincentives can comprise a significant component of our executives’ total compensation package. These incentives are designed to executive officers offermotivate and reward executives for maximizing shareholder value and encourage the rightlong-term employment of key employees. Our objective is to purchase common sharesprovide executives with above-average, long-term incentive award opportunities.
We have traditionally used stock options as the predominant form of stock-based compensation. Stock options generally are granted at their fairthe prevailing market valueprice on the date of the grant. These optionsgrant and will have value only if the Company’s shareour stock price increases. The numberGrants of shares covered by each grant is intended to reflectstock options generally are based upon our performance, the level of the executive’s position, and an evaluation of the executive’s past and expected future performance. We do not time or plan the release of material, non-public information for the purpose of affecting the value of executive compensation.
In 2022, at the Company's 2022 Annual Meeting of Shareholders, the Company's shareholders approved the 2022 Heritage Global Inc. Equity Incentive Plan (the “2022 Plan”), which replaced the Heritage Global Inc. 2016 Stock Option Plan (the “2016 Plan”), and authorized the issuance of an aggregate of 3.5 million shares of common stock for awards made after June 8, 2022. No equity incentive grants were made to any of our named executive officers during 2022 or 2023, except for the restricted stock earned by Mr. Ross Dove discussed above.
Other Compensation
In addition to the primary compensation elements discussed above, we provide our named executive officers with the following limited benefits and perquisites (which are described in more detail below in footnotes 2 and 3 to the 2023 Summary Compensation Table): the Company provided for the payment of an automobile allowance to Mr. Ross Dove in the amount of $14,029 for 2023 and 2022, and the Company provided for the payment of club membership dues for Mr. Ludwig in the amount of $8,695 for 2022. We consider these additional benefits to be a part of a named executive officer’s overall compensation. These benefits generally do not impact the level of responsibility and past and anticipated contributionsother compensation paid to our named executive officers, due to the Company.
22
Upon termination of employment by us without cause, Mr. Ross Dove is entitled to twelve months base salary and a pro rata share of the Company, Mr. Allan Silber, is alsobonus payable in the CEOfiscal year of Counsel. For 2004, the CEO was entitled to an annual salary of $275,000 and a discretionarytermination. Any bonus equal to 100% of his base salary. For 2004, no bonus was awarded. The bonus is awarded at the sole discretion of the Compensation Committee andpayable is based on the termination date (provided that, as of the termination date, the performance criteria established with respect to the bonus for the fiscal year have been met), subject to certain conditions.
Upon termination of employment by us without cause, Mr. Ludwig is entitled to receipt of a pro rata share of the bonus payable in the fiscal year of termination and payment of the greater of (i) an amount equal to Mr. Ludwig’s annual base salary or (ii) an amount equal to 4% of the net amount of any revenues received by NLEX on forward flow contracts entered during Mr. Ludwig’s tenure with the Company for the twelve months succeeding Mr. Ludwig’s termination. Mr. Ludwig does not receive any compensation for his service as a director on our Board because he is employed by the Company.
Upon termination of employment by us without cause, Mr. Nicholas Dove is entitled to payment of the greater of (i) an amount equal to Mr. Dove’s annual base salary or (ii) any pro rata share of the bonus payable in the fiscal year of termination to Mr. Dove.
Say on Pay Analysis
At our 2021 Annual Meeting, we held an annual advisory vote on executive compensation, and approximately 18,858,002 shares were voted in favor of our named executive officer compensation for 2020. The Compensation Committee will continue to consider the results from our past and future advisory votes on named executive officer compensation, as well as periodic feedback from shareholders, when evaluating our compensation program. Furthermore, based on the results of the advisory vote held at our 2021 Annual Meeting on the frequency of advisory votes on executive compensation, we are holding an advisory vote to approve our named executive officer compensation at our 2024 Annual Meeting and intend to hold the next advisory vote to approve our named executive officer compensation at our 2027 Annual Meeting.
Anti-Hedging of Company Stock
The Company maintains an anti-hedging policy in its Code of Conduct. The Company’s policy prohibits directors, officers and employees, with respect to the Company’s stock, from trading on a short-term basis, engaging in short sales, or buying or selling puts or calls. Moreover, all transactions in the Company’s stock by directors and officers must be cleared by the Corporation’s Secretary. The Company believes that it is improper and inappropriate for its directors, officers and employees to engage in short-term or speculative transactions involving the Company’s stock.
Compensation Clawback
On November 7, 2023, our Board, acting on recommendation from our Audit Committee, approved the adoption of the Compensation Recoupment Policy (the “Recoupment Policy”) in accordance with the requirements of Exchange Act Rule 10D-1 and the corresponding Nasdaq listing standards. The Recoupment Policy, which applies to current and former executive officers, provides for the mandatory recoupment of erroneously awarded incentive-based compensation in the event of an accounting restatement due to the material noncompliance of the company with any financial reporting requirements under the securities laws, including any required accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial statements, or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period. The Recoupment Policy provides that promptly following such an accounting restatement, the Compensation Committee will determine the amount of the erroneously awarded compensation, which is the excess of the amount of incentive-based compensation received by current and former executive officers that exceeds the amount of incentive-based compensation that otherwise would have been received had it been determined based on the restated amounts, computed without regard to any taxes paid. Subject to certain exceptions in the Recoupment Policy, we will reasonably promptly require the recoupment of such erroneously awarded compensation from the applicable current and former executive officers. The Recoupment Policy provides that the Compensation Committee may determine, in its sole discretion, the method(s) for recouping any erroneously awarded incentive compensation, which may include taking any remedial and recovery actions permitted by applicable legal requirements and the rules and regulations of the Nasdaq, as determined by the Compensation Committee.
23
In addition, Section 304 of the Sarbanes-Oxley Act of 2002 requires the recovery of incentive awards in certain circumstances. If we are required to restate our financials due to material noncompliance with any financial reporting requirements as a result of misconduct, Section 304 of the Sarbanes-Oxley Act provides that our CEO and CFO will be required to reimburse us for (1) any bonus or other incentive- or equity-based compensation received during the 12 months following the first public issuance of the non-complying document, and (2) any profits realized from the sale of our securities during such 12 month period.
Compensation of Executive Officers
Summary Compensation Table
The following table provides information regarding the compensation earned by each of our named executive officers for the fiscal years ended December 31, 2023 and 2022.
Name and |
| Year |
| Salary |
|
| Non-Equity Incentive Plan |
|
| Stock |
|
| Option |
|
| All Other |
|
| Total |
| |||||||
Ross Dove |
| 2023 |
|
| 425,000 |
|
|
| 675,520 |
|
|
| 146,142 |
| (3) |
| — |
|
|
| 14,029 |
| (1) |
| 1,260,691 |
| |
President and Chief |
| 2022 |
|
| 425,000 |
|
|
| 438,426 |
|
|
| — |
|
|
| — |
|
|
| 14,029 |
| (1) |
| 877,455 |
| |
David Ludwig |
| 2023 |
|
| 400,000 |
|
|
| 1,312,553 |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| 1,712,553 |
| |
President, Financial |
| 2022 |
|
| 400,000 |
|
|
| 703,462 |
|
|
| — |
|
|
| — |
|
|
| 8,695 |
| (2) |
| 1,112,157 |
| |
Nicholas Dove |
| 2023 |
|
| 250,000 |
|
|
| 698,017 |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| 948,017 |
| |
President, Industrial |
| 2022 |
|
| 200,000 |
|
|
| 908,525 |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| 1,108,525 |
| |
____________________ |
| ||||||||||||||||||||||||||
(1) | This amount represents payment for an automobile allowance. |
| |||||||||||||||||||||||||
(2) | This amount represents membership dues paid on behalf of Mr. Ludwig. |
| |||||||||||||||||||||||||
(3) | This amount represents restricted common stock awards granted March 1, 2023 with a one-year vesting term. |
| |||||||||||||||||||||||||
Grant of Option Awards
No option grants were made to our named executive officers during 2023 and 2022.
24
Outstanding Equity Awards at Fiscal Year-End
The following table sets forth the detail of outstanding equity awards at December 31, 2023.
Name |
| Number of |
|
| Number of |
|
| Option |
|
| Option Expiration |
| Number of Shares |
|
| Market Value |
|
| Equity Incentive |
|
| Equity Incentive |
| ||||||||
Ross Dove |
|
| — |
|
|
| — |
|
| N/A |
|
| N/A |
|
| — |
|
|
| — |
|
|
| 76,850 |
| (1) | $ | 213,643 |
| ||
Ross Dove |
|
| — |
|
|
| — |
|
| N/A |
|
| N/A |
|
| — |
|
|
| — |
|
|
| 76,850 |
| (2) | $ | 213,643 |
| ||
Ross Dove |
|
| — |
|
|
| — |
|
| N/A |
|
| N/A |
|
| 57,764 |
| (3) | $ | 160,584 |
|
|
| — |
|
|
| — |
| ||
David Ludwig |
|
| 21,250 |
| (4) |
| — |
|
| $ | 0.70 |
|
| June 1, 2029 |
|
| — |
|
|
| — |
|
| N/A |
|
| N/A |
| |||
David Ludwig |
|
| 33,750 |
| (5) |
| 11,250 |
| (5) | $ | 1.41 |
|
| June 1, 2030 |
|
| — |
|
|
| — |
|
| N/A |
|
| N/A |
| |||
David Ludwig |
|
| 20,000 |
| (6) |
| 20,000 |
| (6) | $ | 2.81 |
|
| June 1, 2031 |
|
| — |
|
|
| — |
|
| N/A |
|
| N/A |
| |||
Nicholas Dove |
|
| 100,000 |
| (7) |
| 100,000 |
| (7) | $ | 1.78 |
|
| August 23, 2031 |
|
| — |
|
|
| — |
|
| N/A |
|
| N/A |
| |||
____________________ |
|
|
|
|
|
|
| ||||||||||||||||||||||||
(1) | Mr. Dove is eligible to receive a restricted common stock award for 2024 performance. This award has no threshold. This eligible award has been estimated based on performance in 2023. The awards are expected to be granted in March 2025 and vest over one year. |
| |||||||||||||||||||||||||||||
(2) | The Company granted 76,850 shares of restricted common stock awards on March 7, 2024, calculated on 2023 achievement. This award has no threshold. The awards vest on March 7, 2025. |
| |||||||||||||||||||||||||||||
(3) | The Company granted 57,764 shares of restricted common stock awards on March 1, 2023, calculated on 2022 achievement. This award has no threshold. The awards vested on March 1, 2024. |
| |||||||||||||||||||||||||||||
(4) | The Company granted 42,500 options to purchase common stock in connection with an addendum to the Employment Agreement of David Ludwig (as described previously in “Grants of Plan-Based Awards”). The options vest 25% annually beginning on June 1, 2020. |
| |||||||||||||||||||||||||||||
(5) | The Company granted 45,000 options to purchase common stock in connection with an addendum to the Employment Agreement of David Ludwig (as described previously in “Grants of Plan-Based Awards”). The options vest 25% annually beginning on June 1, 2021. |
| |||||||||||||||||||||||||||||
(6) | The Company granted 40,000 options to purchase common stock in connection with an addendum to the Employment Agreement of David Ludwig (as described previously in "Grants of Plan-Based Awards").The options vest 25% annually beginning on June 1, 2022. |
| |||||||||||||||||||||||||||||
(7) | The Company granted 200,000 options to purchase common stock. The options vest 25% annually beginning on the first anniversary of the August 23, 2021 grant date. |
|
|
|
|
|
|
| |||||||||||||||||||||||
There were no adjustments or changes in the terms of any of our option awards in 2023.
25
Pay Versus Performance
As required by Section 953(a) of the Dodd-Frank Act, we are providing the following information about the relationship between executive compensation actually paid and certain financial performance of the Company. For further information concerning our variable pay-for-performance philosophy and how we align executive compensation with our performance, refer to “Executive Compensation – Compensation Discussion and Analysis.”
Pay Versus Performance Tables
The following table presents, for each of the three most recent years:
Year |
| Summary |
|
| Compensation |
|
| Average |
|
| Average |
|
| Value of |
|
| Net Income |
| ||||||
(a) |
| (b) |
|
| (c) |
|
| (d) |
|
| (e) |
|
| (f) |
|
| (g) |
| ||||||
2023 |
|
| 1,260,691 |
|
|
| 1,275,132 |
|
|
| 1,330,285 |
|
|
| 1,533,851 |
|
|
| 104.51 |
|
|
| 12,475,000 |
|
2022 |
|
| 877,455 |
|
|
| 877,455 |
|
|
| 1,110,341 |
|
|
| 1,217,941 |
|
|
| 88.35 |
|
|
| 15,493,000 |
|
2021 |
|
| 451,529 |
|
|
| 451,529 |
|
|
| 784,994 |
|
|
| 674,813 |
|
|
| 70.30 |
|
|
| 3,053,000 |
|
26
The following table presents compensation actually paid as determined by adjusting the Summary Compensation Table Total for the PEO (column (b) above) and Average Summary Compensation Table Total for the Non-PEO NEOs (column (d) above) for the value of equity pursuant to Counsel. ThisItem 402(v)(2)(iii)(C) of Regulations S-K:
|
| PEO |
|
| Non-PEO NEO |
| ||||||||||||||||||
|
| 2023 |
|
| 2022 |
|
| 2021 |
|
| 2023 |
|
| 2022 |
|
| 2021 |
| ||||||
Summary Compensation Table Total |
| $ | 1,260,691 |
|
| $ | 877,455 |
|
| $ | 451,529 |
|
| $ | 1,330,285 |
|
| $ | 1,110,341 |
|
| $ | 784,994 |
|
Subtract: Grant date fair value of equity awards granted during the covered year |
|
| (146,143 | ) |
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| (161,290 | ) |
Add: Fair value as of end of covered year of equity awards granted during covered year that were outstanding and unvested as of end of covered year |
|
| 160,584 |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| 9,000 |
|
Add: Change in fair value from end of prior year to end of current year for equity awards granted in prior years that were outstanding and unvested at end of current year |
|
| — |
|
|
| — |
|
|
| — |
|
|
| (356,884 | ) |
|
| 113,897 |
|
|
| 37,866 |
|
Add: Fair value as of vesting date of equity awards that were granted and vested in same year |
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
Add: Change in fair value from end of prior year to vesting date of equity awards granted in prior years that vested in covered year |
|
| — |
|
|
| — |
|
|
| — |
|
|
| 560,450 |
|
|
| (6,297 | ) |
|
| 4,244 |
|
Subtract: Fair value at end of prior year of equity awards granted in prior years that failed to vest (forfeited) in covered year |
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
Add: Dollar amount of dividends or other earnings paid on equity awards in covered year prior to vesting date that are not included in total compensation for covered year |
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
|
| — |
|
Compensation Actually Paid |
| $ | 1,275,132 |
|
| $ | 877,455 |
|
| $ | 451,529 |
|
| $ | 1,533,851 |
|
| $ | 1,217,941 |
|
| $ | 674,813 |
|
Analysis of the Information Presented in the Pay Versus Performance Table
Our Board and Compensation Committee generally seek to align the interests of stockholders with our named executive officers by incentivizing long-term performance and through the use of short-term cash incentives. Therefore, we do not specifically align our performance measures with “compensation actually paid” (as computed in accordance with Item 402(v) of Regulation S-K) for a particular year and the Compensation Committee did not consider this information in making its executive compensation decisions. Instead our executives were paid in both 2023, 2022 and 2021 based on the achievement of annual corporate goals, which are focused on driving growth in operating income and encouraging activities that support long-term performance of total stockholder return. In accordance with Item 402(v) of Regulation S-K, we are providing the following descriptions of the relationships between information presented in the Pay Versus Performance table.
Compensation Actually Paid and Net Income
The amount was recordedof compensation actually paid to our PEO and the average amount of compensation actually paid to our non-PEO NEOs increased from 2021 to 2022 and from 2022 to 2023. The Company's net income increased substantially from 2021 to 2022, and then decreased from 2022 to 2023. The Company does not look to net income as a liabilityperformance measure for its executive compensation program and instead looks at operating income to Counselevaluate the Company’s performance. From 2022 to 2023 the Company went from having net income of $15.5 million (which included a one time adjustment to our valuation allowance against our deferred tax assets of approximately $7.1 million) to a net income of $12.5 million. Without the adjustment to deferred tax assets, the Company would have had a net income of $8.4 million in 2022. The increase in compensation actually paid to our named executive officers year over year generally reflects cash bonuses for the financial statementsachievement of Acceris at December 31, 2003.annual corporate and strategic objectives.
27
Compensation Committee:
The Russell 2000 Indexamount of compensation actually paid to our PEO and A Peer Group
Compensation of Directors
In 2023, each director who is not an employee of the Company received a change was appropriate. Acceris chose the companies comprising the 2004 peer group because they are similar in size, are similar in their lines of business to Acceris and represent Acceris’ competitors in various geographical markets subsequent to the most recent changes in Acceris’ business.
The following table sets forth the Senior Vice President and General Counsel of Acceris. Mr. Silverman’s annual salary is $190,000, and he is eligible for a discretionary bonus of up to 60% of his annual salary in an amount to be determined pursuant to a performance management system, based on performance criteria established at the beginning of each fiscal year. For 2004, Mr. Silverman received a bonus of $60,000.
Name |
| Fees Earned or |
|
| Stock |
|
| Total |
| ||||
Samuel L. Shimer |
|
| 112,000 |
|
|
| 43,050 |
|
|
| 155,050 |
| |
Michael Hexner |
|
| 34,000 |
|
|
| 43,050 |
|
|
| 77,050 |
| |
Barbara Sinsley |
|
| 36,250 |
|
|
| 43,050 |
|
|
| 79,300 |
| |
Kelly Sharpe |
|
| 95,000 |
|
|
| 43,050 |
|
|
| 138,050 |
| |
Shirley S. Cho (2) |
|
| 21,000 |
|
|
| — |
|
|
| 21,000 |
| |
William Burnham (3) |
|
| 27,750 |
|
|
| 43,050 |
|
|
| 70,800 |
| |
David Ludwig (4) |
|
| — |
|
|
| — |
|
|
| — |
| |
Ross Dove (4) |
|
| — |
|
|
| — |
|
|
| — |
| |
____________________ |
| ||||||||||||
(1) | The value included in this column represents the grant date fair value of the option award computed in accordance with FASB ASC Topic 718. The number of restricted shares granted during 2023 for each of the directors listed in the table was as follow: Mr. Shimer — 15,000, Mr. Hexner — 15,000, Ms. Sinsley — 15,000, Ms. Sharpe — 15,000, Mr. Burnham — 15,000. |
| |||||||||||
(2) | Shirley Cho resigned as a member of the Board of Directors and as a member of the Compensation Committee, effective August 14, 2023. |
| |||||||||||
(3) | William Burnham was appointed to the Board of Directors on April 1, 2023. |
| |||||||||||
(4) | Director was not compensated for service on the Board of Directors during 2023 due to compensation received for employment as an executive officer. |
| |||||||||||
28
PROPOSAL NO. 2: APPROVAL OF THE ADOPTION OF OUR SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION TO MAKE CERTAIN TECHNICAL AND ADMINISTRATIVE CHANGES
Our Board of Directors has approved, the agreement on December 23, 2004.
Description and Purpose for the issuanceProposal
The changes to the existing Amended and Restated Articles of incentiveIncorporation that we are proposing in our Second Amended and Restated Articles of Incorporation are to remove obsolete references that are outdated and no longer relevant and make certain other technical and administrative changes. These proposed changes are substantially as follows:
The general description of the terms of employment, consulting and other agreements between the Company and certain officers, directors and other related parties.
If our Second Amended and associated accrued interest ($1.996 million) from October 15, 2002 to December 31, 2002, would be exchanged for common stockRestated Articles of Acceris at $3.77 per share (representing the average closing price of Acceris’ common stock during May 2002).
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF THE ADOPTION OF THE SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION.
29
PROPOSAL NO. 3: RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITOR
The appointment of our independent auditor will be disclosedapproved annually by the Company in its reports to be filed or submitted under the Securities Exchange Act of 1934, as amended, within the time periods specified by the U.S. Securities and Exchange Commission.
UHY was our independent registered public accounting firm for the fiscal year ended December 31, 2023. As previously disclosed in our Current Report on Form 8-K filed with the SEC on August 15, 2022, on August 9, 2022, Baker Tilly US, LLP (“Baker Tilly”) notified the Company that Baker Tilly would resign as the Company’s independent registered public accounting firm effective on August 10, 2022. The Audit Committee accepted the resignation of Baker Tilly. On August 12, 2022, the Company engaged UHY as its independent registered public accounting firm for the Company’s fiscal year ending December 31, 2022. The decision to engage UHY as the Company’s independent registered public accounting firm was PricewaterhouseCoopers LLP.
Year Ended December 31, (in thousands) | |||||||
2003 | 2004 | ||||||
| Audit fees | $ | 767 | $ | 834 | |||
| Audit-related fees | 176 | — | |||||
| Tax fees | 182 | 203 | |||||
| All other fees | — | — | |||||
| Total | $ | 1,125 | $ | 1,037 | |||
Year Ended December 31, (in thousands) | ||||
2004 | ||||
| Audit fees | $ | 676 | ||
| Audit-related fees | 61 | |||
| Tax fees | 106 | |||
| All other fees | — | |||
| Total | $ | 843 |
Prior to engaging UHY, the Company did not consult with UHY regarding application of accounting principles to a specific completed or contemplated transaction or regarding the type of audit opinions that might be rendered by UHY on the Company’s financial statements, and UHY did not provide any written or oral advice that was an important factor considered by the Company in reaching a decision as to any such accounting, auditing or financial reporting issue.
During the subsequent interim periods beginning January 1, 2022 through August 10, 2022, there were no (i) disagreements with Baker Tilly on any matter of accounting principles or practices, financial statement disclosures, or auditing scope or procedure, which disagreement(s), if not resolved to the satisfaction of Baker Tilly, would have caused it to make reference thereto in its reports on the audited consolidated financial statements of the Company for such periods; or (ii) “reportable events” (as defined under Item 304(a)(1)(v) of Regulation S-K).
The Company provided UHY with a copy of the 2024 Proxy Statement prior to its filing with the Securities and Exchange Commission. We previously requested that Baker Tilly furnish the Company with a letter addressed to the Securities and Exchange Commission stating whether it agrees with above statements and, if it does not agree, the respects in which it does not agree. We also requested that UHY furnish the Company with a letter addressed to the Securities and Exchange Commission stating any new information, clarification of the Company’s expression of its views, or the respects in which it does not agree with the statements made above.
Representatives of UHY are expected to virtually attend the Annual Meeting and will have an opportunity to make a statement if they wish. They are also expected to be available to answer questions at the meeting.
Independent Auditor Fee Information
The following table presents fees were for professional audit services rendered by UHY for the audit of our annual consolidated financial statements and fees for other services rendered by UHY for the fiscal years ended December 31, 20032023 and 2004,2022:
UHY LLP |
| Year Ended |
|
| Year Ended |
|
| |||
Audit Fees |
| $ | 198,050 |
|
| $ | 152,378 |
|
| |
Registration Fees |
|
| 6,400 |
| (1) |
|
|
| ||
Tax Fees |
|
| — |
|
|
| — |
|
| |
All Other Fees |
|
| 29,215 |
| (2) |
| 24,800 |
| (2) | |
Total |
| $ | 233,665 |
|
| $ | 177,178 |
|
| |
____________________ | ||||||||||
(1) | Registration Statement Fees include services for the Form S-3 Registration Statement. | |||||||||
(2) | All Other Fees include financial statement audit services for HGC Funding I LLC and HGC Origination I LLC. | |||||||||
30
The following table presents fees for professional audit services rendered by Baker Tilly for the reviewsaudit of theour annual consolidated financial statements included in our quarterly reports on Form 10-Qand fees for other services rendered by Baker Tilly for the fiscal years ended December 31, 20032023 and 2004, and services in connection with our statutory and regulatory filings for the years ended December 31, 2003 and 2004, and amounted to $0.767 million and $1.51 million, respectively.
Baker Tilly |
| Year Ended |
|
| Year Ended |
|
| |||
Audit Fees |
| $ | — |
|
| $ | 61,824 |
|
| |
Registration Statement Fees |
|
| 16,200 |
| (2) |
| 13,293 |
| (1) | |
Tax Fees |
|
| — |
|
|
| — |
|
| |
All Other Fees |
|
| — |
|
|
| — |
| (3) | |
Total |
| $ | 16,200 |
|
| $ | 75,117 |
|
| |
____________________ | ||||||||||
(1) | Registration Statement Fees include services for the Form S-8 Registration Statement. | |||||||||
(2) | Registration Statement Fees include services for the Form S-3 Registration Statement. | |||||||||
(3) | All Other Fees include financial statement review services for HGC Funding I LLC and HGC Origination I LLC. | |||||||||
Pre-Approval Policy of our financial statements for the years ended December 31, 2003 and 2004, exclusive of the fees disclosed as Audit Fees above. These fees include benefit plan audits, accounting consultations and audits in connection with acquisitions, which amounted to $176,000 and $61,000.
In accordance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder, the Audit Committee has adopted an informal approvalcharter contains a policy that it believes will result in an effectiverequiring the Audit Committee to pre-approve any audit-related and efficient procedure to pre-approvepermitted non-audit services performed by the independent registered public accounting firm.
The Audit Committee pre-approved all services provided by UHY in 2023. The Audit Committee has pre-approved all services anticipated to be provided by UHY during 2024.
Audit Services
Audit services include the annual financial statement audit (including annual and quarterly reviews) and other procedures required to be performed by the independent registered public accounting firm to be able to form an opinion on our financial statements. The Audit Committee may pre-approvepre-approves specified annual audit services engagement terms and fees and other specified audit fees. All other audit services must be specifically pre-approved by the Audit Committee. The Audit Committee monitors the audit services engagement and may approve, if necessary, any changes in terms, conditions and fees resulting from changes in audit scope or other items.
Audit-Related Services.
Audit-related services are assurance and related services that are reasonably related to the performance of the audit or review of our financial statements which historically have been provided to us by the independent registered public accounting firm and are consistent with the SEC’s rules on auditor independence. The Audit Committee may pre-approvepre-approves specified audit-related services within pre-approved fee levels. All other audit-related services must be pre-approved by the Audit Committee.
Tax Services.
The Audit Committee may pre-approvepre-approves specified tax services that the Audit Committee believes would not impair the independence of the independent registered public accounting firm and that are consistent with SEC rules and guidance. All other tax services must be specifically approved by the Audit Committee.
31
All Other Services.
Other services are services provided by the independent registered public accounting firm that do not fall within the established audit, audit-related and tax services categories. The Audit Committee may pre-approvepre-approves specified other services that do not fall within any of the specified prohibited categories of services.
THE BOARD OF DIRECTORS AND THE AUDIT COMMITTEE RECOMMEND A VOTE FOR THE RATIFICATION OF UHY, LLP AS THE COMPANY’S INDEPENDENT AUDITOR FOR THE FISCAL YEAR ENDED DECEMBER 31, 2024.
32
AUDIT COMMITTEE REPORT
The information contained in this Audit Committee Report shall not be deemed “filed” for servicespurposes of Section 18 of the Exchange Act or incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in any such filing.
The Audit Committee consists of three members of the Board, each of whom has been determined by the Board to be financially literate, as contemplated by the Nasdaq Stock Market Rules. The Board has determined that Kelly Sharpe is an “audit committee financial expert,” as that term is defined under 407(d) of Regulation S-K. Each member of the Audit Committee is independent, within the meaning of such term under the independence requirements for audit committee membership of the Nasdaq Stock Market Rules, Rule 10A-3 under the Exchange Act and the SEC’s rules and regulations.
The Audit Committee operates under a written charter approved by the Board, a copy of which is available on the Company’s website. As more fully described in the charter, the primary purpose of the Audit Committee is to assist the Board in its oversight of the integrity of the Company’s financial statements and effectiveness of internal controls over financial reporting and the performance, qualification and independence of the Company’s independent registered public accounting firm.
The Company’s management prepares the Company’s consolidated financial statements in accordance with accounting principles generally accepted in the United States of America and is responsible for the financial reporting process that generates these statements. Management is also responsible for establishing and maintaining adequate internal controls over financial reporting. The Audit Committee, on behalf of the Board, monitors and reviews these processes, acting in an oversight capacity relying on the information provided to it and on the representations made to it by the Company’s management, its auditors and other advisors.
The Audit Committee has reviewed and discussed the Company’s December 31, 2023 audited consolidated financial statements and effectiveness of internal controls over financial reporting with management and with its independent registered public accounting firm, UHY.
The Audit Committee has also discussed with its independent registered public accounting firm the matters required to be discussed under the applicable requirements of the Public Company Accounting Oversight Board’s (the “PCAOB”), the SEC and the Audit Committee’s charter.
The Audit Committee has received from its independent registered public accounting firm the written disclosures and the letter required by applicable requirements of the PCAOB regarding the independent registered public accounting firm’s communications with the Audit Committee concerning independence and has discussed with the independent registered public accounting firm which must include a detailed description of the services to be rendered and the amount of corresponding fees, are submitted to the Chief Financial Officer. The Chief Financial Officer authorizes services that have been pre-approved by the Audit Committee. If there is any question as to whether a proposed service fits within a pre-approved service, the Audit Committee chair is consulted for a determination. The Chief Financial Officer submits requests or applications to provide services that have not been pre-approved by the Audit Committee, which must include an affirmation by the Chief Financial Officer and the independent registered public accounting firm thatfirm’s independence from the request or application is consistent with the SEC’s rules on auditor independence, toCompany and its management. In addition, the Audit Committee (or its Chair or anyhas discussed and considered whether the provision of its other members pursuantnon-audit services by the Company’s principal auditor, as described above, is compatible with maintaining auditor independence.
Based on the review and discussions referred to delegated authority) for approval.
| Cash | $ | 584,694 | ||
| Accounts receivable | 11,518,725 | |||
| Other current assets | 1,448,915 | |||
| $ | 13,552,334 | |||
| Furniture, fixtures and equipment, net | $ | 2,690,845 | ||
| Intangible assets, net | 1,094,839 | |||
| Goodwill | 947,287 | |||
| Other long term assets | 882,913 | |||
| $ | 5,615,883 | |||
| Total assets disposed | $ | 19,168,217 |
| Revolving credit facility | $ | 3,533,180 | ||
| Accounts payable and accrued liabilities | 18,215,247 | |||
| Unearned revenue | 883,754 | |||
| Notes payable | 763,611 | |||
| Obligations under capital leases | 808,777 | |||
| $ | 24,204,569 |
The foregoing report has been approved by the Audit Committee.
Kelly Sharpe (Chair) | |
Samuel Shimer | |
William Burnham |
33
PROPOSAL NO. 4: ADVISORY VOTE OF NAMED EXECUTIVE OFFICER COMPENSATION
The Dodd-Frank Act requires that we provide our shareholders with the opportunity to financial statements, together with quantitative and qualitative disclosures about market risk and management’s discussion and analysisvote to approve, on a non-binding, advisory basis, the compensation of financial condition and results of operations for the year ended December 31, 2004, is included withour named executive officers as disclosed in this Proxy Statement. Exhibits to the Form 10-K are available on the Company’s website at
•
We urge shareholders to read the “Executive Compensation—Compensation Discussion and Analysis” section of this Proxy Statement beginning on page 21 of this Proxy Statement, which describes in more detail how our executive compensation policies and procedures operate and are designed to achieve our compensation objectives, as well as the 2023 Summary Compensation Table and other related compensation tables and narrative, appearing on pages 25 through 29, which provide detailed information on the compensation of our named executive officers. The Compensation Committee and the Board of Directors believe that the policies and procedures articulated in the “Executive Compensation—Compensation Discussion and Analysis” section of this Proxy Statement are effective in achieving our compensation objectives and contribute to the Company’s performance.
In accordance with Section 14A of the Exchange Act, the Board is presenting this proposal, which gives shareholders the opportunity to endorse or not endorse our executive pay program on an advisory basis by voting “FOR” or “AGAINST” the following resolution:
“RESOLVED, that the shareholders of Heritage Global Inc. approve, on an advisory basis, the compensation of the company’s Named Executive Officers, as disclosed in this Proxy Statement pursuant to Item 402 of Regulation S-K, including the Compensation Discussion and Analysis, the compensation tables and narrative disclosures.”
This advisory resolution, commonly referred to as a “say-on-pay” resolution, is non-binding on the Company, the Board and the Compensation Committee. The say-on-pay proposal is not intended to address any specific item of compensation, but rather the overall compensation of our named executive officers and the executive compensation policies, practices, and plans described in this Proxy Statement. Although non-binding, the Compensation Committee will carefully review and consider the voting results when making future decisions regarding our executive compensation program.
Our current policy is to provide our shareholders with an opportunity to approve the compensation of the Company’s Named Executive Officers every three years at the annual meeting of shareholders. We expect that the next advisory vote on the compensation of our Named Executive Officers will occur at our 2027 Annual Meeting of Shareholders.
THE BOARD OF DIRECTORS AND THE COMPENSATION COMMITTEE RECOMMEND A VOTE “FOR” THE RESOLUTION APPROVING, ON AN ADVISORY BASIS, OF THE COMPENSATION OF THE COMPANY’S NAMED EXECUTIVE OFFICERS.
34
How do I Submit a Proposal for Inclusion in Next Year’s Proxy Statement?
If you wish to submit a proposal to be considered for inclusion in the Company’s proxy statement for the 2025 annual meeting of shareholders under Exchange Act Rule 14a-8, please send it to the Secretary, Heritage Global Inc., 12625 High Bluff Drive, Suite 305, San Diego, CA, 92130. Your proposal must comply with the requirements of the SEC to be eligible for inclusion. Under the rules of the SEC, proposals must be received no later than February 15, 2025, unless the date of the 2024 annual meeting of shareholders is more than 30 days before or after June 5, 2025, in which case the proposal must be received within a reasonable time before we begin to print and mail our proxy materials.
How do I Make a Proposal to be Considered at an Annual Meeting of Shareholders or Make a Nomination at an Annual Meeting of Shareholders?
Our Restated By-laws provide that if a shareholder desires to make a proposal to be considered at an annual meeting or nominate persons for election as directors, the shareholder must provide written notice of an intent to make such nomination, which the Secretary of the Company must receive at our principal executive offices no later than close of business on the fifth day following the date on which notice of the meeting was first given to the shareholders; provided that the Company is not required to include in its proxy statement any proposal that does not comply with the requirements under the Exchange Act, including Rule 14a-8 of the Exchange Act discussed above.
In order for a shareholder director nomination to be considered in proper form, the shareholder’s notice of nominations must set forth:
To be in proper form for shareholder proposals, the shareholder must provide the Board of the Company Secretary with notice of intention to present a proposal for action, and such notice must include:
The Company may require any individual nominated to furnish such other information as it may reasonably require to determine the eligibility of such individual to serve as a director of the Company.
In addition to satisfying the foregoing requirements under our Restated By-laws, to comply with SEC Rule 14a-19, shareholders who intend to solicit proxies in support of proposed nominees other than the proposed nominees put forth by the Board must provide notice that sets forth the information required by SEC Rule 14a-19 no later than April 6, 2025.
35
GENERAL INFORMATION
Securities Authorized for Issuance Under Equity Compensation Plans
The following table presents securities authorized for issuance under our equity compensation plans at December 31, 2023:
|
| Number of |
|
| Weighted-average |
|
| Number of |
| |||
Plan Category |
| (a) |
|
| (b) |
|
| (c) |
| |||
Equity compensation plans approved by |
|
|
|
|
|
|
|
|
| |||
Heritage Global Inc. 2016 Stock Option Plan |
|
| 1,079,850 |
|
| $ | 1.44 |
|
|
| — |
|
Heritage Global Inc. 2022 Equity Incentive Plan |
|
| 563,625 |
|
| $ | 2.69 |
|
|
| 2,794,398 |
|
|
|
|
|
|
|
|
|
| ||||
Equity compensation plans not approved by |
|
|
|
|
|
|
|
|
| |||
2010 Non-Qualified Stock Option Plan |
|
| 238,750 |
|
| $ | 1.25 |
|
|
| — |
|
Accredited Personnel Stock Option Plan |
|
| 383,125 |
|
| $ | 1.32 |
|
|
| — |
|
Total |
|
| 2,265,350 |
|
| $ | 1.71 |
|
|
| 2,794,398 |
|
Delinquent Section 16(a) Reports
Section 16(a) of the Exchange Act requires our executive officers and directors and persons who own more than ten percent of a registered class of our equity securities (collectively, the “reporting persons”) to file reports of ownership and changes in ownership with the SEC and to furnish us with copies of these reports. Based upon our review of reports filed with the SEC by the reporting persons, and based upon written representations received from certain of the reporting persons, we believe that all of the reporting persons timely complied with the reporting requirements of Section 16(a) of the Exchange Act during 2023, except for the Form 4 filed by Mr. Cobb on March 17, 2023 (and the related Form 4/A thereto filed by Mr. Cobb on April 11, 2023) reporting a grant of shares of restricted common stock and a disposition of shares of common stock, the undersignedForm 4 filed by Mr. Sklar on March 20, 2023 (and the related Form 4/A thereto filed by Mr. Sklar on April 11, 2023) reporting a grant of shares of restricted common stock and a disposition of shares of common stock, the Form 4 filed by Mr. Ross Dove on March 20, 2023 (and the related Form 4/A thereto filed by Mr. Dove on April 11, 2023) reporting a grant of shares of restricted common stock and a disposition of shares of common stock, the Form 3 filed by Mr. Burnham on April 17, 2023, and the Form 4 filed by Mr. Burnham on April 17, 2023 reporting a grant of shares of restricted common stock.
36
Householding
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for proxy materials with respect to two or more shareholders sharing the same address by delivering a single proxy statement and annual report addressed to those shareholders. This process, which is commonly referred to as “householding,” potentially means extra convenience for shareholders and cost savings for companies. We have not implemented householding rules with respect to our record holders. However, a number of brokers with account holders who are shareholders may be “householding” our proxy materials. If a shareholder receives a householding notification from his, her or its broker, a single proxy statement and annual report will be delivered to multiple shareholders sharing an address unless contrary instructions have been received from an affected shareholder. Once you have received notice from your broker that they will be “householding” communications to your address, “householding” will continue until you are notified otherwise.
Shareholders who currently receive multiple copies of the proxy materials at their address and would like to request “householding” of their communications should contact their broker. In addition, if any shareholder that receives a “householding” notification wishes to receive a separate annual report and proxy statement at his, her or its address, such shareholder should also contact his, her or its broker directly. Shareholders who in the future wish to receive multiple copies may also contact the Company at 12625 High Bluff Drive, Suite 305, San Diego, CA, 92130, Attention: Secretary.
Other Business
The Board does not know of any matters which may be presented at the Annual Meeting of stockholders to be held on August 5, 2005 at 2 p.m. local time at the offices of Acceris located at 1001 Brinton Road, Pittsburgh, Pennsylvania 15221, or at any adjournment thereof, upon the mattersother than those specifically set forth in the Proxy Statement for such meeting, and in their discretion, on suchNotice of Annual Meeting of Shareholders. If any other business as may properlymatters come before the meeting.
San Diego, California
April 23, 2024
37
Appendix A
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
HERITAGE GLOBAL INC.
Pursuant to withhold as shown here:
HERITAGE GLOBAL INC., a corporation organized and existing under and by virtue of the provisions of the Act, DOES HEREBY CERTIFY: 1. That the |
2.
3. These Second Amended and Restated Articles of Incorporation consolidate all amendments to the Amended and Restated Articles of Incorporation, as amended, of the Corporation into a single document.
RESOLVED, that the Amended and Restated Articles of Incorporation, as amended, of the Corporation be, and they hereby are, amended and restated in its entirety and shallto read as follows:
ARTICLE I
NAME AND ADDRESS
The name of the corporationCorporation is C2 Technologies“Heritage Global Inc.”
ARTICLE II
PURPOSES
The Corporation may engage in any activity or business permitted under the laws of the ArticlesUnited States of Incorporation to be executed by its authorized officer this __th day of August, 2005.
ARTICLE III
38
CAPITAL STOCK
The pro forma financial informationCorporation is not necessarily indicativeauthorized to have outstanding 300,000,000 shares of the results that would have occurred if the business disposition had occurred on the dates indicated, orcommon stock, par value of the results which may occur in the future. Management undertakes no obligation and does not intend to update, revise or otherwise publicly release any revisions to this pro forma information to reflect events or circumstances after the date hereof or to reflect the occurrence of any unanticipated events.
Acceris Communications Inc., as Reported | Pro Forma Adjustments | Acceris Communications Inc., Pro Forma | |||||||||||
(unaudited) | (unaudited) | (unaudited) | |||||||||||
(Note 1) | |||||||||||||
| Current assets: | |||||||||||||
| Cash and cash equivalents | $ | 491 | $ | (489 | ) | a | $ | 2 | |||||
| Accounts receivable, net of allowance for doubtful accounts of $2,903 | 11,725 | (11,725 | ) | a | - | ||||||||
| Other current assets | 1,503 | (1,322 | ) | a | 181 | ||||||||
| Total current assets | 13,719 | (13,536 | ) | 183 | |||||||||
| Long-term assets | |||||||||||||
| Furniture, fixtures, equipment and software, net | 3,120 | (3,054 | ) | a | 66 | ||||||||
| Intangible assets, net | 1,228 | (1,152 | ) | a | 76 | ||||||||
| Goodwill | 1,120 | (947 | ) | a | 173 | ||||||||
| Investments | 1,100 | - | 1,100 | ||||||||||
| Other assets | 1,076 | (883 | ) | a | 193 | ||||||||
| Total assets | $ | 21,363 | $ | (19,572 | ) | $ | 1,791 | ||||||
| Current liabilities | |||||||||||||
| Revolving credit facility | $ | 3,422 | $ | (3,422 | ) | b | $ | - | |||||
| Accounts payable and accrued liabilities | 25,181 | (19,380 | ) | b | 5,801 | ||||||||
| Unearned revenue | 959 | (959 | ) | b | - | ||||||||
| Current portion of notes payable | 1,944 | (1,944 | ) | b,c | - | ||||||||
| Obligations under capital leases | 968 | (968 | ) | b | - | ||||||||
| Total current liabilities | 32,474 | (26,673 | ) | 5,801 | |||||||||
| Long-term liabilities | |||||||||||||
| Notes payable, less current portion | 3,119 | (3,119 | ) | b,c | - | ||||||||
| Notes payable to a related party, net of unamortized discount | 55,477 | 4,292 | c | 59,769 | |||||||||
| Total liabilities | 91,070 | (25,500 | ) | 65,570 | |||||||||
| Commitments and contingencies | |||||||||||||
| Stockholders' deficit: | |||||||||||||
| Preferred stock, $10.00 par value, authorized 10,000,000 shares, issued and outstanding 618 at March 31,2005, liquidation preference of $618 at March 31, 2005 | 6 | - | 6 | ||||||||||
| Common stock, $0.01 par value, authorized 300,000,000 shares, issued and outstanding 19,237,135 at March 31, 2005 | 192 | - | 192 | ||||||||||
| Additional paid in capital | 187,016 | - | 187,016 | ||||||||||
| Accumulated deficit | (256,921 | ) | 5,928 | a,b | (250,993 | ) | |||||||
| Total stockholders' deficit | (69,707 | ) | 5,928 | (63,779 | ) | ||||||||
| Total liabilities and stockholders' deficit | $ | 21,363 | $ | (19,572 | ) | $ | 1,791 | ||||||
Acceris Communications Inc., as Reported | Pro Forma Adjustments | Acceris Communications Inc., Pro Forma | |||||||||||
(audited) | (unaudited) | (unaudited) | |||||||||||
(Note 1) | |||||||||||||
| Current assets: | |||||||||||||
| Cash and cash equivalents | $ | 458 | $ | (414 | ) | a | $ | 44 | |||||
| Accounts receivable, net of allowance for doubtful accounts of $2,163 | 13,079 | (13,079 | ) | a | - | ||||||||
| Other current assets | 1,473 | (1,372 | ) | a | 101 | ||||||||
| Total current assets | 15,010 | (14,865 | ) | 145 | |||||||||
| Long-term assets | |||||||||||||
| Furniture, fixtures, equipment and software, net | 4,152 | (4,152 | ) | a | - | ||||||||
| Intangible assets, net | 1,404 | (1,324 | ) | a | 80 | ||||||||
| Goodwill | 1,120 | (947 | ) | a | 173 | ||||||||
| Investments | 1,100 | - | 1,100 | ||||||||||
| Other assets | 1,223 | (1,012 | ) | a | 211 | ||||||||
| Total assets | $ | 24,009 | $ | (22,300 | ) | $ | 1,709 | ||||||
| Current liabilities | |||||||||||||
| Revolving credit facility | $ | 4,725 | $ | (4,725 | ) | b | $ | - | |||||
| Accounts payable and accrued liabilities | 27,309 | (21,668 | ) | b | 5,641 | ||||||||
| Unearned revenue | 959 | (959 | ) | b | - | ||||||||
| Current portion of notes payable | 1,928 | (1,928 | ) | b,c | - | ||||||||
| Obligations under capital leases | 1,441 | (1,441 | ) | b | - | ||||||||
| Total current liabilities | 36,362 | (30,721 | ) | 5,641 | |||||||||
| Long-term liabilities | |||||||||||||
| Notes payable, less current portion | 3,597 | (3,597 | ) | b,c | - | ||||||||
| Notes payable to a related party, net of unamortized discount | 46,015 | 4,719 | c | 50,734 | |||||||||
| Total liabilities | 85,974 | (29,599 | ) | 56,375 | |||||||||
| Commitments and contingencies | |||||||||||||
| Stockholders' deficit: | |||||||||||||
| Preferred stock, $10.00 par value, authorized 10,000,000 shares, issued and outstanding 618 at December 31, 2004, liquidation preference of $618 at December 31, 2004 | 6 | - | 6 | ||||||||||
| Common stock, $0.01 par value, authorized 300,000,000 shares, issued and outstanding 19,237,135 at December 31, 2004 | 192 | - | 192 | ||||||||||
| Additional paid in capital | 186,650 | - | 186,650 | ||||||||||
| Accumulated deficit | (248,813 | ) | 7,299 | a,b | (241,514 | ) | |||||||
| Total stockholders' deficit | (61,965 | ) | 7,299 | (54,666 | ) | ||||||||
| Total liabilities and stockholders' deficit | $ | 24,009 | $ | (22,300 | ) | $ | 1,709 | ||||||
Acceris Communications Inc., as Reported | Pro Forma Adjustments | Acceris Communications Inc., Pro Forma | |||||||||||
(audited) | (unaudited) | (unaudited) | |||||||||||
(Note 1) | |||||||||||||
| Current assets: | |||||||||||||
| Cash and cash equivalents | $ | 2,033 | $ | (2,038 | ) | a | $ | (5 | ) | ||||
| Accounts receivable, net of allowance for doubtful accounts of $1,764 | 18,018 | (18,012 | ) | a | 6 | ||||||||
| Investments in convertible preferred and common stock | 2,058 | - | 2,058 | ||||||||||
| Other current assets | 2,111 | (1,956 | ) | a | 155 | ||||||||
| Net assets of discontinued operations | 91 | - | 91 | ||||||||||
| Total current assets | 24,311 | (22,006 | ) | 2,305 | |||||||||
| Long-term assets | |||||||||||||
| Furniture, fixtures, equipment and software, net | 8,483 | (8,478 | ) | a | 5 | ||||||||
| Intangible assets, net | 3,297 | (3,197 | ) | a | 100 | ||||||||
| Goodwill | 1,120 | (947 | ) | a | 173 | ||||||||
| Investments | 1,100 | - | 1,100 | ||||||||||
| Other assets | 743 | (726 | ) | a | 17 | ||||||||
| Total assets | $ | 39,054 | $ | (35,354 | ) | $ | 3,700 | ||||||
| Current liabilities | |||||||||||||
| Revolving credit facility | $ | 12,127 | $ | (12,127 | ) | b | $ | - | |||||
| Accounts payable and accrued liabilities | 28,272 | (23,507 | ) | b | 4,765 | ||||||||
| Unearned revenue | 5,678 | (5,678 | ) | b | - | ||||||||
| Current portion of notes payable | 1,254 | (1,254 | ) | b | - | ||||||||
| Current portion of obligations under capital leases | 2,715 | (2,715 | ) | b | - | ||||||||
| Net liabilities of discontinued operations | 841 | - | 841 | ||||||||||
| Total current liabilities | 50,887 | (45,281 | ) | 5,606 | |||||||||
| Long-term liabilities | |||||||||||||
| Notes payable, less current portion | 772 | (772 | ) | b | - | ||||||||
| Obligations under capital leases, less current portion | 1,631 | (1,631 | ) | b | - | ||||||||
| Notes payable to a related party, net of unamortized discount | 28,717 | - | 28,717 | ||||||||||
| Total liabilities | 82,007 | (47,684 | ) | 34,323 | |||||||||
| Commitments and contingencies | |||||||||||||
| Stockholders' deficit: | |||||||||||||
| Preferred stock, $10.00 par value, authorized 10,000,000 shares, issued and outstanding 619 at December 31, 2003, liquidation preference of $619 at December 31, 2003 | 6 | - | 6 | ||||||||||
| Common stock, $0.01 par value, authorized 300,000,000 shares, issued and outstanding 19,262,095 at December 31, 2003 | 192 | - | 192 | ||||||||||
| Additional paid in capital | 182,879 | - | 182,879 | ||||||||||
| Accumulated deficit | (226,030 | ) | 12,330 | a,b | (213,700 | ) | |||||||
| Total stockholders' deficit | (42,953 | ) | 12,330 | (30,623 | ) | ||||||||
| Total liabilities and stockholders' deficit | $ | 39,054 | $ | (35,354 | ) | $ | 3,700 | ||||||
For the three months ended March 31, 2004 | |||||||||||||
Acceris Communications Inc., as Reported | Pro Forma Adjustments | Acceris Communications Inc., Pro Forma | |||||||||||
(unaudited) | (unaudited) | (unaudited) | |||||||||||
(Note 1) | |||||||||||||
| Revenues: | |||||||||||||
| Telecommunications services | $ | 34,723 | $ | (34,723 | ) | a | $ | - | |||||
| Technology licensing and development | 450 | - | 450 | ||||||||||
| Total revenues | 35,173 | (34,723 | ) | 450 | |||||||||
| Operating costs and expenses: | |||||||||||||
| Telecommunications network expense | |||||||||||||
| (exclusive of depreciation and amortization, shown below) | 16,635 | (16,635 | ) | a | - | ||||||||
| Selling, general and administrative | 14,763 | (13,987 | ) | a | 776 | ||||||||
| Provision for doubtful accounts | �� | 1,227 | (1,227 | ) | a | - | |||||||
| Research and development | - | - | - | ||||||||||
| Depreciation and amortization | 1,704 | (1,699 | ) | a | 5 | ||||||||
| Total operating costs and expenses | 34,329 | (33,548 | ) | 781 | |||||||||
| Operating income (loss) | 844 | (1,175 | ) | (331 | ) | ||||||||
| Other income (expense): | |||||||||||||
| Interest expense - related party | (2,803 | ) | - | (2,803 | ) | ||||||||
| Interest expense - third party | (730 | ) | 701 | a, b | (29 | ) | |||||||
| Other income | 1,377 | (767 | ) | a | 610 | ||||||||
| Total other income (expense) | (2,156 | ) | (66 | ) | (2,222 | ) | |||||||
| Loss from continuing operations | $ | (1,312 | ) | $ | (1,241 | ) | $ | (2,553 | ) | ||||
| Basic and diluted weighted average shares outstanding | 19,262 | 19,262 | 19,262 | ||||||||||
| Loss per common share - basic and diluted: | |||||||||||||
| Loss from continuing operations | ($0.07 | ) | ($0.06 | ) | ($0.13 | ) | |||||||
Acceris Communications Inc., as Reported | Pro Forma Adjustments | Acceris Communications Inc., Pro Forma | |||||||||||
(unaudited) | (unaudited) | (unaudited) | |||||||||||
(Note 1) | |||||||||||||
| Revenues: | |||||||||||||
| Telecommunications services | $ | 22,253 | $ | (22,253 | ) | a | $ | - | |||||
| Total revenues | 22,253 | (22,253 | ) | - | |||||||||
| Operating costs and expenses: | |||||||||||||
| Telecommunications network expense | |||||||||||||
| (exclusive of depreciation and amortization, shown below) | 13,730 | (13,730 | ) | a | - | ||||||||
| Selling, general and administrative | 10,978 | (9,995 | ) | a | 983 | ||||||||
| Provision for doubtful accounts | 1,055 | (1,055 | ) | a | - | ||||||||
| Research and development | 150 | - | 150 | ||||||||||
| Depreciation and amortization | 1,308 | (1,299 | ) | a | 9 | ||||||||
| Total operating costs and expenses | 27,221 | (26,079 | ) | 1,142 | |||||||||
| Operating loss | (4,968 | ) | 3,826 | (1,142 | ) | ||||||||
| Other income (expense): | |||||||||||||
| Interest expense - related party | (2,487 | ) | (144 | ) | d | (2,631 | ) | ||||||
| Interest expense - third party | (680 | ) | 680 | b, c | - | ||||||||
| Other income | 27 | (27 | ) | a | - | ||||||||
| Total other income (expense) | (3,140 | ) | 509 | (2,631 | ) | ||||||||
| Loss from continuing operations | $ | (8,108 | ) | $ | 4,335 | $ | (3,773 | ) | |||||
| Basic and diluted weighted average shares outstanding | 19,237 | 19,237 | 19,237 | ||||||||||
| Loss per common share - basic and diluted: | |||||||||||||
| Loss from continuing operations | ($0.42 | ) | $ | 0.22 | ($0.20 | ) | |||||||
For the year ended December 31, 2002 | |||||||||||||
Acceris Communications Inc., as Reported | Pro Forma Adjustments | Acceris Communications Inc., Pro Forma | |||||||||||
(unaudited) | (unaudited) | (unaudited) | |||||||||||
(Note 1) | |||||||||||||
| Revenues: | |||||||||||||
| Telecommunications services | $ | 85,252 | $ | (85,252 | ) | a | $ | - | |||||
| Technology licensing and development | 2,837 | - | 2,837 | ||||||||||
| Total revenues | 88,089 | (85,252 | ) | 2,837 | |||||||||
| Operating costs and expenses: | |||||||||||||
| Telecommunications network expense | |||||||||||||
| (exclusive of depreciation and amortization, shown below) | 50,936 | (50,936 | ) | a | - | ||||||||
| Selling, general and administrative | 33,015 | (28,507 | ) | a | 4,508 | ||||||||
| Provision for doubtful accounts | 5,999 | (5,999 | ) | a | - | ||||||||
| Research and development | 1,399 | - | 1,399 | ||||||||||
| Depreciation and amortization | 4,270 | (4,214 | ) | a | 56 | ||||||||
| Total operating costs and expenses | 95,619 | (89,656 | ) | 5,963 | |||||||||
| Operating loss | (7,530 | ) | 4,404 | (3,126 | ) | ||||||||
| Other income (expense): | |||||||||||||
| Interest expense - related party | (4,515 | ) | 2,164 | a | (2,351 | ) | |||||||
| Interest expense - third party | (3,680 | ) | 1,134 | a, b | (2,546 | ) | |||||||
| Other income | 395 | (357 | ) | a | 38 | ||||||||
| Total other income (expense) | (7,800 | ) | 2,941 | (4,859 | ) | ||||||||
| Loss from continuing operations | $ | (15,330 | ) | $ | 7,345 | $ | (7,985 | ) | |||||
| Basic and diluted weighted average shares outstanding | 5,828 | 5,828 | 5,828 | ||||||||||
| Loss per common share - basic and diluted: | |||||||||||||
| Loss from continuing operations | ($2.63 | ) | $ | 1.26 | ($1.37 | ) | |||||||
For the year ended December 31, 2003 | |||||||||||||
Acceris Communications Inc., as Reported | Pro Forma Adjustments | Acceris Communications Inc., Pro Forma | |||||||||||
(unaudited) | (unaudited) | (unaudited) | |||||||||||
(Note 1) | |||||||||||||
| Revenues: | |||||||||||||
| Telecommunications services | $ | 133,765 | $ | (133,765 | ) | a | $ | - | |||||
| Technology licensing and development | 2,164 | - | 2,164 | ||||||||||
| Total revenues | 135,929 | (133,765 | ) | 2,164 | |||||||||
| Operating costs and expenses: | |||||||||||||
| Telecommunications network expense | |||||||||||||
| (exclusive of depreciation and amortization, shown below) | 86,006 | (86,006 | ) | a | - | ||||||||
| Selling, general and administrative | 57,264 | (52,881 | ) | a | 4,383 | ||||||||
| Provision for doubtful accounts | 5,438 | (5,432 | ) | a | 6 | ||||||||
| Research and development | - | - | - | ||||||||||
| Depreciation and amortization | 7,125 | (7,125 | ) | a | - | ||||||||
| Total operating costs and expenses | 155,833 | (151,444 | ) | 4,389 | |||||||||
| Operating loss | (19,904 | ) | 17,679 | (2,225 | ) | ||||||||
| Other income (expense): | |||||||||||||
| Interest expense - related party | (10,878 | ) | 1,279 | a | (9,599 | ) | |||||||
| Interest expense - third party | (2,391 | ) | 1,516 | a, b | (875 | ) | |||||||
| Other income | 1,216 | (78 | ) | a | 1,138 | ||||||||
| Total other income (expense) | (12,053 | ) | 2,717 | (9,336 | ) | ||||||||
| Loss from continuing operations | $ | (31,957 | ) | $ | 20,396 | $ | (11,561 | ) | |||||
| Basic and diluted weighted average shares outstanding | 7,011 | 7,011 | 7,011 | ||||||||||
| Loss per common share - basic and diluted: | |||||||||||||
| Loss from continuing operations | ($4.56 | ) | $ | 2.91 | ($1.65 | ) | |||||||
For the year ended December 31, 2004 | |||||||||||||
Acceris Communications Inc., as Reported | Pro Forma Adjustments | Acceris Communications Inc., Pro Forma | |||||||||||
(audited) | (unaudited) | (unaudited) | |||||||||||
(Note 1) | |||||||||||||
| Revenues: | |||||||||||||
| Telecommunications services | $ | 112,595 | $ | (112,595 | ) | a | $ | - | |||||
| Technology licensing and development | 540 | - | 540 | ||||||||||
| Total revenues | 113,135 | (112,595 | ) | 540 | |||||||||
| Operating costs and expenses: | |||||||||||||
| Telecommunications network expense | |||||||||||||
| (exclusive of depreciation and amortization, shown below) | 60,067 | (60,067 | ) | a | - | ||||||||
| Selling, general and administrative | 54,430 | (50,739 | ) | a | 3,691 | ||||||||
| Provision for doubtful accounts | 5,229 | (5,229 | ) | a | - | ||||||||
| Research and development | 442 | - | 442 | ||||||||||
| Depreciation and amortization | 6,976 | (6,955 | ) | a | 21 | ||||||||
| Total operating costs and expenses | 127,144 | (122,990 | ) | 4,154 | |||||||||
| Operating loss | (14,009 | ) | 10,395 | (3,614 | ) | ||||||||
| Other income (expense): | |||||||||||||
| Interest expense - related party | (8,488 | ) | (50 | ) | d | (8,538 | ) | ||||||
| Interest expense - third party | (2,861 | ) | 2,847 | b, c | (14 | ) | |||||||
| Other income | 2,471 | (985 | ) | a | 1,486 | ||||||||
| Total other income (expense) | (8,878 | ) | 1,812 | (7,066 | ) | ||||||||
| Loss from continuing operations | $ | (22,887 | ) | $ | 12,207 | $ | (10,680 | ) | |||||
| Basic and diluted weighted average shares outstanding | 19,256 | 19,256 | 19,256 | ||||||||||
| Loss per common share - basic and diluted: | |||||||||||||
| Loss from continuing operations | ($1.19 | ) | $ | 0.64 | ($0.55 | ) | |||||||
Except as otherwise provided herein (or in any amendment hereto) or assignment.
(b)SERIES N CONVERTIBLE PREFERRED STOCK
20,000 shares of Preferred Stock have been designated as Series N Convertible Preferred Stock (the “Series N Preferred Stock”), which have the transactions contemplatedfollowing rights and preferences:
1. Dividends. If dividends are declared by this Agreement.
2.Liquidation, Dissolution or Winding Up. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the sale of all or substantially all of its assets, or the merger or consolidation of the Corporation as a detailed statement describing their specific objectionsresult of which the then shareholders of the Corporation do not continue to hold more than a 67% interest in the successor entity or a transaction or series of related transactions in which the Corporation’s shareholders transfer more than 33% of the voting power of the Corporation (each such event, a “Liquidation”), the holder of each share of Series N Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its shareholders before payment to the Buyer within 20 days after receiving it. The Buyerholders of Common Stock by reason of their ownership thereof, an amount (the “Liquidation Price”), payable
39
in cash (and, to the extent sufficient cash is not available for such payment, property at its fair market value), equal to $1,000.00 per share.
3. Voting Rights. Except as otherwise provided herein or in any amendment hereto creating a series of Preferred Stock or any similar stock, or as otherwise required by Florida law, the holders of shares of Series N Preferred Stock and the Seller Parties will then use reasonable effortsholders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to resolvea vote of shareholders of the Corporation. Each share of Series N Preferred Stock shall entitle the holder thereof to that number of votes which is equal to the number of shares of Common Stock into which such share of Series N Preferred Stock would be convertible if that share of Series N Preferred Stock had been converted in accordance with Section 4 below to shares of Common Stock immediately prior to the record date for the vote.
4. Conversion Into Common Stock. Each holder of the Series N Preferred Stock shall have conversion rights as follows (the “Conversion Rights”):
(a) Right to Convert. Each share of Series N Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time into such objections themselves through good faith negotiation. Ifnumber of fully paid and nonassessable shares of Common Stock as is determined by dividing (i) the parties do not obtain a final resolutionConversion Value (as defined below) of such share by (ii) the Conversion Price (as defined below). In the event of a dispute within 30 days afterLiquidation of the Buyer has receivedCorporation, the statementConversion Rights shall terminate at the close of objection(s), however,business on the Buyerlast full day preceding the date fixed for the payment of any amounts distributable on Liquidation to the holders of Series N Preferred Stock.
(b) Conversion Value. The “Conversion Value” of each share of Series N Preferred Stock shall be $1,000.00.
(c) Conversion Price. As of the date of these Second Amended and Restated Articles of Incorporation, the Conversion Price (the “Conversion Price”) is $25.00, which reflects adjustments made pursuant to the Corporation’s Amended and Restated Articles of Incorporation, as amended prior to the date of filing of these Second Amended and Restated Articles of Incorporation, including with respect to the one-for-twenty reverse split of the Common Stock previously effected by the Corporation. The Conversion Price, and the Seller Parties will select a mutually acceptable, nationally-recognized accounting firmrate at which shares of Series N Preferred Stock may be converted into shares of Common Stock, shall be subject to resolve any remaining objections. The Buyeradjustment as provided below in this Section 4.
(d) Fractional Shares. No fractional shares of Common Stock shall pay 50% and the Seller Parties shall pay 50%be issued upon conversion of the costs and expenses of any accounting firm so used. The determination made by such accounting firm will be set forth in writing and will be conclusive and binding upon the parties. For purposes of this Agreement, “
(e) Mechanics of Conversion.
(i) In order for a holder of Series N Preferred Stock to convert shares of Series N Preferred Stock into shares of Common Stock, such holder shall surrender the certificate or excess,certificates for such shares of Series N Preferred Stock at the office of the transfer agent for the Series N Preferred Stock (or at the principal office of the Corporation if the Corporation serves as applicable,
40
its own transfer agent) together with written notice that such holder elects to convert all or (ii) acceptany number of the shares of Series N Preferred Stock represented by such certificate or certificates. If required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a reductionwritten instrument or instruments of transfer, in form satisfactory to the Assumed Liabilities equal toCorporation, duly executed by the registered holder or its attorney duly authorized in writing. The date of receipt of such deficiency or excess,certificates and notice by the transfer agent (or by the Corporation if the Corporation serves as applicable.
(ii) The Corporation shall at all times when the Series N Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of effecting the conversion of the Series N Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Series N Preferred Stock.
(iii) All shares of Series N Preferred Stock which shall have been surrendered for conversion as herein provided in this Section 4 shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate on the Conversion Date, except only the right of the conditions set forthholders thereof to receive shares of Common Stock and cash in
(f) Adjustment for Stock Splits and Combinations.
(g) Adjustment for Certain Dividends and Distributions. AtIn the Closingevent the parties will doCorporation at any time or from time to time shall make or issue, or fix a record date for the following: (a)determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in additional shares of Common Stock, then and in each such event the Seller Parties will execute, acknowledge (if appropriate) and deliver toConversion Price for the Buyer any certificates, instruments and documents, including those referred toSeries N Preferred Stock then in
41
the numerator of which shall be the total number of shares of Common Stock issued and Power
(h) Adjustments for Other Dividends and willDistributions. In the event the Corporation at any time or from time to time shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Corporation other than shares of Common Stock, then and in each such event provision shall be made so that the holders of the Series N Preferred Stock shall receive upon conversion thereof in addition to the number of shares of Common Stock receivable thereupon, the amount of securities of the Corporation that they would have received had their Series N Preferred Stock been converted on the Closing Date, full corporate powerdate of such event and authority and all Licenses and Permits necessary to carry on the businesses in which it is engaged and in which it presently proposes to engage and to own and use the properties owned and used by it.
(i) Adjustment for Reclassification, Exchange, or Substitution. If the Acquired Assets for whichCommon Stock issuable upon the Buyer may become obligatedconversion of the Series N Preferred Stock shall be changed into the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification or otherwise responsible(other than a subdivision or combination of shares or stock dividend provided for above, or a reorganization, merger, consolidation, or sale of assets provided for below), then and in each such event each holder of the Series N Preferred Stock shall have the right thereafter to convert each such share of Common Stock issuable upon the conversion of the Series N Preferred Stock into the kind and amount of shares of stock and other thansecurities and property receivable upon such reorganization, reclassification, or other change, by holders of the Assumed Liabilities.
(j) Adjustment for Taxes for the periods covered thereby, in all material respects. The Company has paid all Taxes due and payable by Company (whetherMerger or not shown on a Tax Return)Reorganization. Without limiting the foregoing, noneIn case of any consolidation or merger of the Tax Returns contains any position that is,Corporation with or wouldinto another corporation, each share of Series N Preferred Stock shall thereafter be subjectconvertible into the kind and amount of shares of stock or other securities or property to penalties under section 6662which a holder of the Code (or any correspondingnumber of shares of Common Stock of the Corporation deliverable upon conversion of such Series N Preferred Stock would have been entitled upon such consolidation or merger; and, in such case, appropriate adjustment (as determined in good faith by the Board of Directors) shall be made in the application of the provisions of state, local or non-U.S. Tax law). The Company has not waived any statutes of limitation in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency which waiver or extension remains in effect. No action, suit, proceeding, or audit is pending against orthis Section 4 set forth with respect to the Company regarding Taxes.
42
be, expected to cause such plan and related trust to be disqualified or to be so non-exempt from Tax. Each Pension Plan has been administered in accordance with its terms and all applicable legal requirements. There have been no prohibited transactions within the meaning of Code Section 4975 or breach of fiduciary duty under ERISA and no investigations by any governmental agency or other actions or written claims against or directly involving any Benefit Plan (except claims for benefits payable in the normal operation of the Benefit Plans). With respect to each Benefit Plan, all required reports and descriptions (including without limitation Forms 5500 and summary plan descriptions) have been timely filed or distributed in accordance with applicable Law.
(k) No Impairment. The Parent further agrees that itCorporation will not, and that it will cause its Affiliates not to, contract to sell, encumber, sellby amendment hereto or otherwisethrough any reorganization, transfer of assets, consolidation, merger, dissolution, issue or disposesale of any of the Parent Stocksecurities or any interest therein or securities convertible therein to or any voting rights with respect thereto other than (i) following termination of this Agreement, or (ii) with Buyer’s prior written consent. After the Execution Date and before the record date for the ACI Stockholders Meeting, ACI shall not issue any additional capital stock other than ordinary course issuances and under option plans that would result in a change of control of ACI.
(l) Certificate as to Adjustments. Upon the occurrence of each adjustment or release of any security given for the payment, performance and observance of anyreadjustment of the Guaranteed Obligations. Similarly,Conversion Price pursuant to this Section 4, the obligations of Guarantor hereunderCorporation at its expense shall not be released by any modification of any of the terms of the Guaranteed Obligations made by the Seller Parties and the Buyer, but in the case of anypromptly compute such modification, the liability of Guarantor shall be deemed modifiedadjustment or readjustment in accordance with the terms of this Subpart (b) of Article III and furnish to each holder of Series N Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series N Preferred Stock, furnish or cause to refurnished to such modification. The liabilityholder a similar certificate setting forth (i) such adjustments and readjustments; (ii) the Conversion Price then in effect; and (iii) the number of Guarantor hereunder shallshares of Common Stock and the amount, if any, of other property which then would be received upon the conversion of Series N Preferred Stock.
(m) Notice of Record Date. In the event (i) that the Corporation declares a dividend (or any other distribution) on its Common Stock payable in no way be affected by (a) the releaseCommon Stock or dischargeother securities of the Buyer inCorporation, (ii) that the Corporation subdivides or combines its outstanding shares of Common Stock, (iii) of any creditors’ receivership, bankruptcy or other proceedings, (b) the impairment, limitation or modificationreclassification of the liabilityCommon Stock (other than a subdivision or combination of the Buyeroutstanding shares of Common Stock or the estate of the Buyer in bankruptcy,a stock dividend or stock distribution thereon), or of any remedyconsolidation or merger of the Corporation into or with another corporation, or (iv) of the Liquidation of the Corporation, then the Corporation shall cause to be filed at its principal office or at the office of the transfer agent of the Series N Preferred Stock (if other than the Corporation), and shall cause to be mailed to the holders of the Series N Preferred Stock at their last addresses as shown on the records of the Corporation or such transfer agent, at least ten days prior to the record date specified in (A) below or twenty days before the date specified in (B) below, a notice stating: (A) the record date of such dividend, distribution, subdivision or combination, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, subdivision or combination are to be determined, or (B) the date on which such reclassification, consolidation, merger, or Liquidation is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, or Liquidation.
(c)PREVIOUSLY DESIGNATED PREFERRED STOCK
In addition to the enforcementSeries N Preferred Stock described above, the Board of Directors also previously designated a total of 502,000 shares of Preferred Stock into specified series of Preferred Stock as follows: 7,500 shares of Preferred Stock were designated as 12% Cumulative Convertible
43
Preferred Stock; 200,000 shares of Preferred Stock were designated as Class A Variable Rate Cumulative Convertible Preferred Stock; 22,500 shares of Preferred Stock were designated as Class B Variable Rate Cumulative Convertible Preferred Stock; 240,000 shares of Preferred Stock were designated as Class C Convertible Cumulative Redeemable Preferred Stock; 1,000 shares of Preferred Stock were designated as Series D Preferred Stock; 1,000 shares of Preferred Stock were designated as 5% Series E Convertible Preferred Stock; 1,000 shares of Preferred Stock were designated as 5% Series F Convertible Preferred Stock; and 29,000 shares of Preferred Stock were designated as Series M Participating Convertible Preferred Stock. As of the date of filing of these Second Amended and Restated Articles of Incorporation, other than the Series N Preferred Stock, no shares of any such series of Preferred Stock are issued or outstanding and no further shares of any such series of Preferred Stock may be issued.
ARTICLE IV
BOARD OF DIRECTORS
44
ARTICLE V
REGISTERED OFFICE AND AGENT
The current mailing address and street address of the registered office of the Corporation are 2894 Remington Green Lane, Suite A, Tallahassee, FL 32308. The name of the current registered agent of the Corporation is Registered Agent Solutions, Inc.
ARTICLE VI
DURATION
The term of existence of the Corporation shall be perpetual.
ARTICLE VII
AMENDMENT TO ARTICLES OF INCORPORATION
Subject to the terms and conditions hereof, the Corporation reserves the right to amend, alter, change or repeal any provision contained in these Second Amended and Restated Articles of Incorporation, or in any amendment hereto, or to add any provision to these Second Amended and Restated Articles of Incorporation or to any amendment hereto, in any manner now or hereafter prescribed or permitted by Florida law, and all rights conferred upon shareholders, directors, officers and other persons in these Second Amended and Restated Articles of Incorporation, or in any amendment hereto, are subject to this reservation.
[Signature Page Follows]
45
IN WITNESS WHEREOF, these Second Amended and Restated Articles of Incorporation have been executed by Buyera duly authorized officer of the Corporation on this ___ day of ________, 2024.
HERITAGE GLOBAL INC.
Name: Title: |
46
A-1
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Notice and Seller Parties within 60 days following Closing.Proxy Statement and Form 10-K are available at www.proxyvote.com HERITAGE GLOBAL INC. Annual Meeting of Shareholders June 8, 2022 8:00 AM This proxy is solicited by the Board of Directors The parties intend such allocationshareholder(s) hereby appoint(s) Ross Dove and James Sklar, or either of them, as proxies, each with the power to appoint (his/her) 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/Preferred) stock of HERITAGE GLOBAL INC. that the shareholder(s) is/are entitled to vote at the A
nnual Meeting of Shareholder(s) to be held at 8:00 AM, PDT on June 8, 2022, virtually at www.virtualshareholdermeeting.com/HGBL2022, and any adjournment or postponement thereof. This proxy, when properly executed, will be voted in the manner directed herein. If no such direction is made, this proxy will be voted in accordance with the provisions contained in Treasury Regulation Section 1.1060-1T(d)Board of Directors' recommendations. Continued and the parties agree to report the acquisition for federal income tax purposes in accordance with such allocation. In furtherance of the foregoing, the parties agree to execute and deliver Internal Revenue Service Form 8594 reflecting such allocation.
A-2
| Section 1 | Definitions | 1 |
| Section 2 | Basic Transaction | 9 |
| 2.1 | Sale of Acquired Assets | 9 |
| 2.2 | Assumption of Assumed Liabilities | 10 |
| 2.3 | Post-Effective Date Adjustment and Payment | 10 |
| 2.4 | Adjustment to Company Balance Sheet | 10 |
| 2.5 | The Closing | 10 |
| 2.6 | Deliveries at the Closing | 11 |
| Section 3 | Representations and Warranties | 11 |
| 3.1 | Organization, Qualification and Power | 11 |
| 3.2 | Authority | 11 |
| 3.3 | No Conflict or Violation; Consents | 12 |
| 3.4 | Acquired Assets and Assumed Liabilities | 12 |
| 3.5 | Financial Statements | 12 |
| 3.6 | Absence of Certain Changes or Events | 13 |
| 3.7 | Absence of Undisclosed Liabilities | 13 |
| 3.8 | Tax Matters | 13 |
| 3.9 | Real Property | 14 |
| 3.10 | Personal Property | 14 |
| 3.11 | Intellectual Property | 14 |
| 3.12 | Licenses and Permits | 15 |
| 3.13 | Compliance with Laws | 15 |
| 3.14 | Litigation | 15 |
| 3.15 | Contracts | 15 |
| 3.16 | Employee Plans | 16 |
| 3.17 | Insurance | 18 |
| 3.18 | Transactions with Sellers and Affiliates | 18 |
| 3.19 | Labor and Employment Matters | 18 |
| 3.20 | Environmental, Health and Safety Matters | 19 |
| 3.21 | Accounts Receivable; Accounts Payable | 19 |
| 3.22 | No Brokers | 19 |
| 3.23 | Customer Relations | 20 |
| 3.24 | Parent Stock | 20 |
| 3.25 | Qualifications | 20 |
| Section 4 | Representations and Warranties of the Buyer | 20 |
| 4.1 | Corporate Organization | 20 |
| 4.2 | Authorization | 20 |
| 4.3 | No Conflict or Violation | 21 |
| 4.4 | Consents and Approvals | 21 |
| 4.5 | No Brokers | 21 |
| 4.6 | Proxy Statements | 21 |
| Section 5 | Covenants of the Parties | 21 |
| 5.1 | Restructuring Matters | 21 |
| 5.2 | Stockholder Approval Mechanics | 22 |
| 5.3 | Outstanding Debt | 23 |
| 5.4 | Corrections to Schedules | 23 |
| 5.5 | Covenant Not to Compete; Non-Solicitation | 23 |
| 5.6 | Compliance | 24 |
| 5.7 | Consents | 24 |
| 5.8 | Employee Benefit Matters | 25 |
| 5.9 | Employees | 26 |
| 5.10 | [Intentionally Deleted] | 26 |
| 5.11 | Break Up Fee | 26 |
| 5.12 | PUC Consents | 27 |
| 5.13 | Further Assurances | 27 |
| 5.14 | Confidentiality | 27 |
| 5.15 | Lien Releases and Debt Restructuring Matters | 27 |
| 5.16 | Proxy to Vote Shares | 28 |
| 5.17 | Guaranty | 28 |
| Section 6 | Tax Matters | 28 |
| 6.1 | Transfer Taxes | 28 |
| 6.2 | Tax Returns and Contests | 29 |
| Section 7 | Indemnification | 29 |
| 7.1 | Survival | 29 |
| 7.2 | Indemnification by the Seller Parties | 30 |
| 7.3 | Indemnification by the Buyer | 30 |
| 7.4 | Limitations on Indemnification | 31 |
| 7.5 | Procedures for Indemnification | 31 |
| 7.6 | Character of Payments | 32 |
| 7.7 | Cooperation | 32 |
| 7.8 | Exclusive Remedy | 33 |
| Section 8 | Conditions Precedent to Performance by the Seller Parties | 33 |
| 8.1 | Representations and Warranties of the Buyer | 33 |
| 8.2 | Performance of the Obligations of the Buyer | 33 |
| 8.3 | Transaction Documents | 33 |
| 8.4 | No Violation of Orders | 33 |
| 8.5 | Required Consents | 33 |
| 8.6 | Buyer Legal Opinion | 34 |
| Section 9 | Conditions Precedent to Performance by the Buyer | 34 |
| 9.1 | Representations and Warranties of Seller Parties | 34 |
| 9.2 | Performance of the Obligations of Seller Parties | 34 |
| 9.3 | Required Consents | 34 |
| 9.4 | Transaction Documents | 34 |
| 9.5 | No Violation of Orders | 34 |
| 9.6 | Seller Parties’ Legal Opinion | 35 |
| 9.7 | Tax Clearance Letters | 35 |
| 9.8 | FIRPTA Affidavit | 35 |
| 9.9 | Seller Party Liens | 35 |
| 9.10 | USF Settlement | 35 |
| Section 10 | Termination | 35 |
| 10.1 | Termination Before Termination Restriction Date | 36 |
| 10.2 | Termination After Termination Restriction Date | 36 |
| 10.3 | Effect of Termination | 37 |
| Section 11 | Miscellaneous | 37 |
| 11.1 | Successors and Assigns | 37 |
| 11.2 | Governing Law, Jurisdiction | 37 |
| 11.3 | Expenses | 38 |
| 11.4 | Severability | 38 |
| 11.5 | Notices | 38 |
| 11.6 | Amendments; Waivers | 39 |
| 11.7 | Public Announcements | 39 |
| 11.8 | Entire Agreement | 39 |
| 11.9 | Parties in Interest | 39 |
| 11.10 | Section and Paragraph Headings | 40 |
| 11.11 | Counterparts; Facsimile Signatures | 40 |
| 11.12 | Interpretation | 40 |
| 11.13 | Specific Performance | 40 |