Indicate by check mark whether the Registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of
“large accelerated filer”, “accelerated filer”, “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Indicate by check mark whether the Registrant
is a shell company (as defined in Rule 12b-2 of the Act). ¨ Yes x No
The aggregate market value of the Registrant’s
voting common equity held by non-affiliates of the Registrant, computed by reference to the price at which such voting common equity
was last sold as of June 30, 2019, was approximately $92,130,068 (based on a closing price of $2.18).
As of June 5, 2020, the Registrant had 147,511,430
shares of common stock outstanding.
This Amendment No. 1 on Form
10-K/A (the “Amendment”) amends the Annual Report on Form 10-K of Exela Technologies, Inc. (the “Company”)
for the fiscal year ended December 31, 2019, which was originally filed with the Securities and Exchange Commission (the
“SEC”) on June 9, 2020 (the “Original Report”) to include the information omitted from the Original
Report in reliance on General Instruction G(3) to Form 10-K (the “Part III Information”). This Amendment is being
filed because the Company has determined to delay the filing of its definitive proxy statement for its 2020 annual meeting of
stockholders (the “Definitive Proxy Statement”) due to the continuing uncertainty around COVID-19. The Company
expects to hold its 2020 annual meeting during the second half of the year. On April 20, 2020, the Company filed a Current Report
on Form 8-K (the “April Form 8-K”) indicating its intention to delay the filing of the Part III Information in accordance
with the SEC’s Order Under Section 36 of the Securities Exchange Act of 1934 Modifying Exemptions From the Reporting Requirements
For Public Companies, dated March 25, 2020 (Release No. 34-88465)
In addition, in accordance with Rules 12b-15 and 13a-14 under
the Securities Exchange Act of 1934, as amended, the Company is amending Part IV, Item 15 to include currently dated certifications
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 from the Company’s principal executive officer and principal financial
officer. Because no financial statements have been included in this Amendment, and this Amendment does not contain or amend any
disclosure with respect to Items 307 and 308 of Regulation S-K, paragraphs 3, 4 and 5 of the certifications
have been omitted. Similarly, because no financial statements have been included in this Amendment, certifications pursuant to
Section 906 of Oxley Act of 2002 have been omitted.
Except as described above, this Amendment
does not amend, modify or update the information in, or exhibits to, the Original Report in any way, and we have not updated disclosures
included therein to reflect any subsequent developments or events. This Amendment should be read in conjunction with the Original
Report and with our other filings made with the SEC subsequent to the filing of the Original Report.
PART III
Item 10. Directors, Executive Officers and Corporate Governance
Directors
The Company has three classes of directors serving staggered
three-year terms, with Class A consisting of two directorships and each of Class B and Class C consisting of three directorships.
The terms of the Class A, B and C directorships expire on the date of the annual meeting in 2021, 2022, and 2020, respectively.
|
Name
|
|
Age
|
|
|
Class
|
|
|
Positions and
Offices
Held With the Company
|
|
Ronald C. Cogburn
|
|
|
64
|
|
|
|
A
|
|
|
Director
|
|
J. Coley Clark
|
|
|
74
|
|
|
|
A
|
|
|
Director
|
|
James G. Reynolds
|
|
|
51
|
|
|
|
B
|
|
|
Director
|
|
John H. Rexford
|
|
|
63
|
|
|
|
B
|
|
|
Director
|
|
Marc A. Beilinson
|
|
|
62
|
|
|
|
B
|
|
|
Director
|
|
Par S. Chadha
|
|
|
65
|
|
|
|
C
|
|
|
Director
|
|
Martin P. Akins
|
|
|
53
|
|
|
|
C
|
|
|
Director
|
|
William L. Transier
|
|
|
65
|
|
|
|
C
|
|
|
Director
|
Class C Directorship—Term Expiring
in 2020
Par Chadha
Director since July 2017
Business Experience: Mr. Chadha is our Executive Chairman
and is the founder, Chief Executive Officer and Chief Investment Officer of HGM, a family office, formed in 2001, and was the principal
stockholder of SourceHOV immediately prior to the July 12, 2017 closing of the Novitex Business Combination Agreement, which resulted
in SourceHOV and Novitex becoming our wholly owned subsidiaries. Mr. Chadha also served as Chairman of SourceHOV from 2011
until the closing of the Novitex Business Combination and as Chairman of our Board of Directors from the closing of the Novitex
Business Combination until March 27, 2020 when he became our Executive Chairman. Mr. Chadha brings over 40 years of experience
in building businesses in the Americas, Europe and Asia, including execution of mergers and acquisitions, integration of businesses
and public offerings. Mr. Chadha is a co-founder of Rule 14, LLC, a leading big data mining and automation company
formed in 2011, and during his career, Mr. Chadha has founded or co-founded other technology companies in the fields of metro
optical networks, systems-on-silicon and communications. Through HGM, Mr. Chadha previously participated in director and executive
roles in joint ventures with major financial and investment institutions, including Apollo, as well as other portfolio companies
of HGM, and currently holds and manages investments in evolving financial technology, health technology and communications industries.
Since 2005, Mr. Chadha has served as a Director of HOV Services Limited, a company listed on the National Stock Exchange of
India, acting as its Chairman from 2009 to 2011. Mr. Chadha holds a B.S. degree in Electrical Engineering from the Punjab Engineering
College, India, and completed graduate-level coursework in computer science at the Illinois Institute of Technology. We believe
Mr. Chadha’s significant experience in the public information technology and business services industry and his experience
with mergers and integration of businesses make him well qualified to serve as a director of Exela.
Martin Akins
Director since July 2019
Business Experience: Mr. Akins most recently served as Senior
Vice President, General Counsel and Corporate Secretary of Express Scripts Holding Company, a publicly-traded, Fortune 25 company
and the largest independent pharmacy benefit management company in the United States. In this role, Mr. Akins served as the company’s
chief legal advisor and was also a member of Express Scripts’ senior executive team where he advised the CEO, outlined strategy
to the Board of Directors and led the company through several, significant strategic transactions. He worked with Express Scripts
from February 2001 through March 2019, serving as SVP and General Counsel from October 2015 through the closing of the company’s
merger with Cigna, Inc. in December of 2018, and remaining with the organization in a transitional role for brief period post-closing.
During his tenure with Express Scripts prior to October 2015, Mr. Akins, served in a variety of legal capacities, including Vice
President and Deputy General Counsel, and Associate General Counsel. Before joining Express Scripts, Mr. Akins was with the Polsinelli
law firm. Mr. Akins began his legal career with the firm Thompson Coburn LLP. He received his Juris Doctorate from the University
of Illinois College of Law. We believe that Mr. Akins’ significant, strategic, legal, regulatory and governance experience,
make him well-qualified to serve as a director of Exela.
William Transier
Director since April 2020
Business Experience: Mr. Transier is Chief Executive Officer
of Transier Advisors, LLC, an independent advisory firm providing services to companies facing stressed operational situations,
turnaround, restructuring or in need of interim executive leadership. He was co-founder of Endeavour International Corporation,
an international oil and gas exploration and production company. He served as non-executive Chairman of Endeavour’s Board
of Directors from December2014 until November 2015. He served from September 2006 until December 2014 as Chairman, Chief Executive
Officer and President of Endeavour and as its Chairman and Co-Chief Executive Officer from its formation in February 2004 through
September 2006. Mr. Transier served as Executive Vice President and Chief Financial Officer of Ocean Energy, Inc. from March 1999
to April 2003 and prior to that, Mr. Transier served in various positions of increasing responsibility with Seagull Energy Corporation.
Before his tenure with Seagull, Mr. Transier served in various roles including partner in the audit department and head of the
Global Energy practice of KPMG LLP from June 1986 to April 1996. In October 2019, Mr. Transier was elected to the Board of Directors
of Battalion Oil Corporation (which changed its name from Halcón Resources Corporation) and as Chairman of the Board and
of its audit committee. In March 2019 Mr. Transier was elected to the Board of Directors of Teekay Offshore GP L.L.C. (the general
partner of Teekay Offshore Partners L.P.) and as chairman of its audit committee. Teekay was taken private in January 2020. Since
October 2018 Mr. Transier has served as a member of the Board of Directors of Sears Holding Corporation including the Board’s
Restructuring Committee and Restructuring Subcommittee. From August 2018 to February 2019, Mr. Transier served as a member of the
Board of Directors of Gastar Exploration, Inc. From May 2016 to July 2017, Mr. Transier was a member of the Board of Directors
of CHC Group Ltd. From August 2014 to July 2017, Mr. Transier was a member of the Board of Directors of Paragon Offshore plc. Mr.
Transier graduated from the University of Texas with a B.B.A. in accounting, has an M.B.A. from Regis University and has a Master
of Arts in Theological Studies from Dallas Baptist University. We believe that Mr. Transier’s extensive
audit, accounting and financial reporting experience and extensive professional background provide valuable contributions to the
Company’s board and make him well-qualified to serve as a director of Exela.
Class A Directors—Term
Expiring in 2021
Ronald Cogburn
Director since July 2017
Business Experience: Mr. Cogburn is our Chief Executive
Officer and served as Chief Executive Officer of SourceHOV from 2013 until the closing of the Novitex Business Combination. Mr.
Cogburn has been part of companies that were predecessors to SourceHOV since 1993, bringing over 30 years of diversified experience
in executive management, construction claims consulting, litigation support, program management project management, cost estimating,
damages assessment and general building construction. Mr. Cogburn has also been a principal of HGM since 2003. Prior to his role
as Chief Executive Officer of SourceHOV, Mr. Cogburn was SourceHOV's President, KPO from March 2011 to July 2013. Prior to this
role, Mr. Cogburn was the President of HOV Services, LLC from January 2005 to September 2007, providing executive leadership during
the company's growth to its IPO on the India Stock Exchange in September 2006. Mr. Cogburn has a BSCE in Structural Design/Construction
Management from Texas A&M University and is a registered Professional Engineer. We believe that Mr. Cogburn’s significant,
diversified business experience in Exela’s industry make him well-qualified to serve as a director of Exela.
J. Coley Clark
Director since December 2019
Business Experience: J. Coley Clark is the retired Chief Executive
Officer and Chairman of the Board of BancTec, Inc., a global provider of document and payment processing solutions and currently
serves on the board of directors of Moneygram International, Inc. At BancTec, Inc., Mr. Clark was Co-Chairman of the Board from
2014 to December 2016, and Chairman of the Board and Chief Executive Officer from September 2004 to 2014. In 2004, Mr. Clark retired
from Electronic Data Systems Corporation, or EDS, an outsourcing services company that was acquired by Hewlett-Packard in 2008,
as Senior Vice President and head of the Financial and Transportation Industry Group. Mr. Clark joined EDS in 1971 in the Systems
Engineering Development Program and progressed through a variety of technical, sales and management roles related to the financial
and insurance industries. Prior to his time at EDS, Mr. Clark served three years in the U.S. Army, attaining the rank of Captain,
and served as a company commander in Europe and Southeast Asia. Mr. Clark received a Bachelor of Arts in Sociology from the University
of Texas. We believe that Mr. Clark’s significant, diversified business experience in Exela’s industry make him
well-qualified to serve as a director of Exela.
Class B Directors—Term Expiring
in 2022
James G. Reynolds
Director since July 2017
Business Experience: Mr. Reynolds was our Chief Financial Officer
from the closing of the Novitex Business Combination until May 2020. Mr. Reynolds served as Co-Chairman of SourceHOV from 2014
until the closing of the Novitex Business Combination in 2017. Mr. Reynolds is also the Chief Operating Officer and a Partner at
HGM, bringing over 25 years of industry experience to the team. Prior to HGM Mr. Reynolds held numerous executive management or
senior advisory positions at SourceHOV and its related subsidiaries and predecessor companies, including serving as Chief Financial
Officer for HOV Services, LLC from 2007 to 2011 and Vice President and Corporate Controller for Lason from 2001 to 2006. Mr. Reynolds
was a Senior Manager in the Business Advisory Services Practice at PricewaterhouseCoopers from 1990 to 2001. Mr. Reynolds is a
C.P.A. and holds a B.S. in Accounting from Michigan State University. We believe that Mr. Reynold’s significant industry
and management experience make him well-qualified to serve as a director of the Company.
John H. Rexford
Director since July 2017
Business Experience: Mr. Rexford is the Managing Director
of Ramona Park Consulting LLC, which he founded in 2016, and also serves as a director of Verra Mobility. Mr. Rexford
has over 36 years of finance experience that includes serving as Global M&A Head from 2010 to 2015 at the Xerox Corporation
and serving in various positions at Affiliated Computer Services, Inc. (which was acquired by the Xerox Corporation), including
Chief Financial Officer from 2006 to 2007, Executive Vice President from 2001 to 2009 and Senior Vice President of Mergers and
Acquisitions from 1996 to 2001. Mr. Rexford holds a B.S. and a MBA from Southern Methodist University. We believe that Mr. Rexford’s
prior experiences give him an understanding of the business models, structures and attributes of Exela, as well as the risks and
operating environment of Exela, which make him well-qualified to serve as a director of Exela.
Marc A. Beilinson
Director since April 2020
Business Experience: Mr. Beilinson has served as a director
of Athene Annuity, a global annuity company, since 2013. Since August 2011, Mr. Beilinson has been the Managing Director of Beilinson
Advisory Group, a financial restructuring and hospitality advisory group that specializes in assisting distressed companies. Most
recently, Mr. Beilinson served as Chief Restructuring Officer of Newbury Common Associates LLC (and certain affiliates) from December
2016 to June 2017. Mr. Beilinson previously served as Chief Restructuring Officer of Fisker Automotive from November 2013 to August
2014 and as Chief Restructuring Officer and Chief Executive Officer of Eagle Hospitality Properties Trust, Inc. from August 2011
to December 2014 and Innkeepers USA Trust from November 2008 to March 2012. Mr. Beilinson oversaw the Chapter 11 reorganization
of Innkeepers USA, Fisker Automotive and Newbury Common Associates in his interim management roles as the Chief Restructuring Officer
of those companies. Mr. Beilinson currently serves on the boards of directors of MFG Assurance Company Limited, Dura Automotive
Systems, Sigue Corporation, Acosta, Inc., Kingfisher Midstream LLC and KB US, Inc., as well as the audit committee of MFG Assurance
Company Limited. Mr. Beilinson has previously served on the boards of directors and audit committees of a number of public and
privately held companies, including Westinghouse Electric, Caesars Acquisition Company, Wyndham International, Inc., Apollo Commercial
Real Estate Finance, Inc., Innkeepers USA Trust, Gastar Inc., American Tire, UCI Holdings, Haggen, Agrokor and Monitronics. Mr.
Beilinson graduated from UCLA, magna cum laude. We believe Mr. Beilinson extensive experience
resulting from over thirty years of service to the boards of both public and private companies, and his extensive knowledge of
legal and compliance issues, including the Sarbanes-Oxley Act of 2002 make him well-qualified to serve as a director of
Exela.
Additional Information Concerning the Board of Directors
of the Company during 2019
On February 21, 2019, Gordon Coburn resigned
from the Board.
On July 29, 2019, Martin P. Akins, was
elected to the Company’s Board and initially appointed to serve as a member of Exela’s Audit Committee and Nominating
and Corporate Governance Committee.
On October 25, 2019, Nathaniel Lipman, and
on October 28, 2019, Joshua Black and Matthew Nord, resigned from the Board of the Company and all committees of the Board, effective
immediately. The Company notified Nasdaq that as a result of Nathaniel Lipman’s resignation from the Company’s Board,
the Company was no longer in compliance with Nasdaq Listing Rule 5605(c)(2)(A), which requires the Company’s Audit Committee
to be composed of at least three independent directors, and Nasdaq Listing Rule 5605(d)(2)(A), which requires the Company’s
Compensation Committee to be composed of at least two independent directors.
On December 2, 2019, J. Coley Clark
was elected to the Board of the Company and appointed as a member of the Audit Committee, Nominating and Corporate Governance
Committee and as chair of the Compensation Committee. Accordingly, the Company returned to compliance with Nasdaq Listing Rule
5605(c)(2)(A) and Nasdaq Listing Rule 5605(d)(2)(A).
Audit Committee
Our board of directors has established
an Audit Committee in accordance with Section 3(a)(58)(A) of the Securities Exchange Act consisting of Messrs. Beilinson, Clark,
Rexford (co-Chairman) and Transier (co-Chairman). Messrs. Beilinson, Clark, Rexford and Transier are each independent within the
meaning of Section 5605(a)(2) of the NASDAQ Marketplace Rules and meet the additional test for independence for audit committee
members imposed by the SEC, regulation and Section 5605(c)(2)(A) of the NASDAQ Marketplace Rules. Our board of directors has determined
that each of Messrs. Transier and Mr. Rexford qualifies as a financial expert.
Executive Officers
The information set forth under the heading
“Executive Officers” in the Company’s Form 10-K for year ended December 31, 2019 amended by this Amendment No.
1 is incorporated by reference.
Code of Ethics
We make available our code of ethics entitled
"Global Code of Ethics and Business Conduct" free of charge through our website. We intend to post on our website all
disclosures that are required by law or Nasdaq listing standards concerning any amendments to, or waivers from, any provision of
our code of ethics.
Delinquent Section 16(a) Reports
Section 16(a) of the Securities Exchange
Act of 1934 requires our executive officers, directors and persons who own more than 10% of our Common Stock to file reports with
the SEC. Based on a review of the copies of reports furnished to us, Exela believes that, during 2019, HGM, Mr. Par Chadha, Mr.
Ronald Cogburn, Mr. Shrikant Sortur, Mr. Suresh Yannamani, Mr. Srini Murali and Mr. Mark Fairchild were delinquent in their Section
16(a) reporting obligations based upon shares in Ex-Sigma held by each of the above persons.
HGM at all relevant times reported beneficial
ownership of all of the shares of Exela held by Ex-Sigma 2. In the third and fourth quarter of 2019, HGM purchased additional preferred
interests in Ex-Sigma, but as it already reported beneficial ownership of the underlying shares, HGM did not report the transactions
on a Form 4 as its beneficial ownership did not increase. The report was ultimately made on February 27, 2020.
Each of the foregoing persons had one
delinquent transaction except for Mr. Chadha and HGM, each of whom had two delinquent transactions, each of which related to the
above-described purchase of additional preferred interests.
Item 11. Executive Compensation
EXECUTIVE COMPENSATION
This section discusses the material components of the executive
compensation program for Exela’s executive officers who are named in the “Summary Compensation Table” below.
As a “smaller reporting company” as defined in Rule 12b-2 of the Exchange Act, Exela is not required to include a Compensation
Discussion and Analysis and has elected to comply with the scaled disclosure requirements applicable to smaller reporting companies.
Exela’s named executive officers for the fiscal year ended December 31, 2019 were as follows:
|
|
·
|
Ronald C. Cogburn, our Chief Executive
Officer;
|
|
|
·
|
Mark Fairchild, our President, Exela SmartOffice;
and
|
|
|
·
|
Suresh Yannamani, our President.
|
Summary Compensation Table
The following table
sets forth compensation information for our named executive officers for services performed for the Company and its subsidiaries
for the fiscal years ended December 31, 2019 and December 31, 2018.
Name and principal
position
|
|
Year
|
|
|
Salary
($)
|
|
|
Bonus
($)(1)
|
|
|
Stock Awards
($)
|
|
|
Option Awards
($)(2)
|
|
|
All Other Compensation
($)(3)
|
|
|
Total
($)
|
|
Ronald
C. Cogburn
Chief Executive Officer
|
|
|
2019
|
|
|
|
325,000
|
|
|
|
—
|
|
|
|
—
|
|
|
|
98,181
|
|
|
|
845,407
|
|
|
|
1,268,588
|
|
|
|
|
|
2018
|
|
|
|
325,000
|
|
|
|
350,000
|
|
|
|
442,520
|
|
|
|
298,146
|
|
|
|
—
|
|
|
|
1,415,666
|
|
|
Mark
Fairchild
President,
Exela SmartOffice(4)
|
|
|
2019
|
|
|
|
400,000
|
|
|
|
250,000
|
|
|
|
—
|
|
|
|
48,295
|
|
|
|
95,012
|
|
|
|
793,307
|
|
Suresh
Yannamani
President
|
|
|
2019
|
|
|
|
325,000
|
|
|
|
—
|
|
|
|
—
|
|
|
|
98,181
|
|
|
|
535,524
|
|
|
|
958,705
|
|
|
|
|
|
2018
|
|
|
|
325,000
|
|
|
|
450,000
|
|
|
|
442,520
|
|
|
|
298,146
|
|
|
|
—
|
|
|
|
1,515,666
|
|
|
|
(1)
|
For Mr. Fairchild, the amount reported
in this column includes a one-time special incentive bonus of $250,000, granted to Mr. Fairchild as consideration for the termination
of his employment agreement, and paid in 26 equal installments during 2019, subject to his continued employment through each payment
date. For additional information, please see the “—Narrative to Summary Compensation Table” below.
|
|
|
(2)
|
The amounts reported in this column represent
the aggregate grant date fair value of stock options granted to the named executive officers during the applicable fiscal year,
calculated in accordance with FASB ASC Topic 718, disregarding for this purpose the estimate of forfeitures related to service-based
vesting conditions, and do not necessarily correspond to the actual value that might be realized by the named executive officers,
which depends on the market value of our Common Stock on a date in the future when the stock options are exercised. Grants made
during the fiscal year ended December 31, 2019, were stock options subject to time-based vesting conditions. For such time-based
vesting awards, the grant date fair value was calculated by multiplying the Black-Scholes value by the number of shares of our
Common Stock subject to the stock options. For additional information, including a discussion of the assumptions used to calculate
these values, please see the “—Outstanding Equity Awards at Fiscal Year End Table” below and please see note 16
Stock-Based Compensation of the Notes to the Consolidated Financial Statements in this Annual Report.
|
|
|
(3)
|
In October 2019, the Company awarded
bonuses to certain employees, including the above named executive officers, who were also indirect equity holders of Ex-Sigma 2
through their holdings of Ex-Sigma that had been issued upon the vesting of RSUs granted under the 2013 Plan. The Company remitted
the net amount of $929,844 toward the outstanding balance on the Margin Loan in order to benefit such employees.
|
|
|
(4)
|
Mr. Fairchild was not a named executive
officer in 2018.
|
Narrative to Summary Compensation Table
No Executive Employment Agreements
We have not entered into employment agreements with Messrs.
Cogburn, Fairchild or Yannamani. For a discussion of the severance pay and other benefits to be provided to our named executive
officers in connection with a termination of employment and/or a change in control, please see “— Potential Payments
Upon Termination or Change In Control” below.
Termination of Mr. Fairchild’s Agreement
On December 18, 2018, the Company and Mr. Fairchild
mutually agreed to terminate Mr. Fairchild’s employment agreement with the Company’s subsidiary, BancTec, Inc.
In connection with the termination of the employment agreement, the Company agreed (i) to pay Mr. Fairchild a special
incentive award in an aggregate amount equal to $250,000 payable in 26 equal bi-weekly payments, subject to his continued employment
through each payment date; however, if his employment was terminated by the Company, except due to Mr. Fairchild’s gross
negligence or willful misconduct, any remaining amount would have been payable in a lump sum on the day of termination; and (ii) in
the event Mr. Fairchild’s employment was terminated without cause (other than due to his death or disability) prior
to August 31, 2019, Mr. Fairchild would have been entitled to accelerated vesting of the 36,400 restricted stock units to
receive shares of Common Stock that were granted to Mr. Fairchild on August 30, 2018 and that were scheduled to vest
on August 31, 2019.
The termination of Mr. Fairchild’s employment agreement
is part of the Company’s overall compensation plan to harmonize the employee benefits of officers of the Company and to eliminate
non-conforming agreements.
Short and Long Term Incentives
With respect to our 2019 fiscal year, none of our named executive
officers received a performance based bonus.
The Compensation Committee approved grants
of stock options to our named executive officers in August 2019 pursuant to our 2018 Plan (described below). Stock options granted
to our named executive officers vest over 4 years, subject to the executive’s continued employment with us or one of subsidiaries
through such date. For additional information regarding such grants, please see “—Outstanding Equity Awards at Fiscal
Year End Table” below.
Stock Plans, Health and Welfare Plans,
and Retirement Plans
2018 Stock Incentive
Plan
On December 19, 2017, our Board of Directors adopted our 2018
Stock Incentive Plan, or the 2018 Plan, which was subsequently approved on December 20, 2017 by the written consent of the holders
of a majority of the shares of our Common Stock, and became effective on January 17, 2018. The 2018 Plan is administered by the
Compensation Committee of our Board of Directors. Under the 2018 Plan, the Compensation Committee may grant an aggregate of 8,323,764
shares of our Common Stock to eligible participants in the form of stock options, restricted stock awards, restricted stock units,
stock appreciation rights, performance awards and other awards that may be settled in or based on our Common Stock.
Health and Welfare Plans
Our named executive officers are eligible to participate in
our employee benefits plans, including our medical, dental, vision, life, disability, health and dependent care flexible spending
accounts and accidental death and dismemberment benefit plans, in each case on the same basis as all of our other employees.
Retirement Plan
We sponsor a retirement plan intended to qualify for favorable
tax treatment under Section 401(a) of the Internal Revenue Code of 1986, as amended, or the Code, containing a cash or deferred
feature that is intended to meet the requirements of Section 401(k) of the Code. Employees who meet the eligibility requirements
may make pre-tax contributions to the plan from their eligible earnings up to the statutorily prescribed annual limit on pre-tax
contributions under the Code. Participants who are 50 years of age or older may contribute additional amounts based on the statutory
limits for catch-up contributions. All employee and employer contributions are allocated to each participant’s individual
account and are then invested in selected investment alternatives according to the participant’s directions. Pre-tax contributions
by participants and contributions that we may make to the plan and the income earned on those contributions are generally not taxable
to participants until withdrawn, and all contributions are generally deductible by us when made. Participant contributions are
held in trust as required by law. No minimum benefit is provided under the plan. An employee is 100% vested in his or her pre-tax
deferrals when contributed and any employer contributions vest ratably over four years. The plan provides for a discretionary employer
matching contribution, however, we currently do not make any matching contributions to the plan and did not make any matching contributions
with respect to the 2019 plan year.
Other Compensation Policies and Practices
Insider Trading
Policy
Our Insider Trading Policy provides that employees, including
our executive officers and the members of our Board of Directors, are prohibited from engaging in transactions in our securities
if such employee possesses material, non-public information about the Company. In addition, certain persons covered by our Insider
Trading Policy must advise our General Counsel before effectuating any transaction in our securities.
Stock Ownership
Guidelines
On December 19, 2017, our Board of Directors adopted Stock
Ownership Guidelines for our non-employee directors, Chief Executive Officer, Chief Financial Officer and our other executive officers
who report directly to our Chief Executive Officer, which we refer to here as covered persons. Our Stock Ownership Guidelines provide
that within five years after first becoming subject to the guidelines, each covered person should own shares of our Common Stock
with a specified fair market value, which is three times the annual retainer fee in the case of non-employee directors, six times
annual base salary in the case of our Chief Executive Officer, three times annual base salary in the case of our Chief Financial
Officer and one and one-half times annual base salary in the case of all other covered persons. Covered persons must retain their
equity until their required ownership amount is met; provided, that each covered person is at all times permitted to sell a portion
of the shares of our Common Stock underlying his or her equity based awards to the extent necessary to satisfy any withholding
taxes due in connection with such awards. Included in a covered person’s ownership amount for purposes of the Stock Ownership
Guidelines are (i) one half of the fair market value of the shares of our Common Stock underlying vested stock options (to
the extent the fair market value exceeds the applicable exercise price); and (ii) one half of the shares of our Common Stock subject
to all vested and deferred restricted stock units. Shares of our Common Stock underlying unvested equity awards are not counted
towards determining a covered person’s stock ownership.
Outstanding Equity Awards at Fiscal
Year End
The following table contains information regarding outstanding
equity awards of Exela held by our named executive officers as of December 31, 2019.
|
|
|
|
Option Awards
|
|
Name
|
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
|
|
Option
Exercise Price
($)
|
|
|
Option
Expiration
Date
|
|
Ronald Cogburn
|
|
|
—
|
|
|
111,000 (1)
|
|
|
5.98
|
|
|
8/31/28
|
|
|
|
|
—
|
|
|
111,000 (2)
|
|
|
1.30
|
|
|
8/26/29
|
|
Mark Fairchild
|
|
|
—
|
|
|
54,600 (1)
|
|
|
5.98
|
|
|
8/31/28
|
|
|
|
|
—
|
|
|
54,600 (2)
|
|
|
1.30
|
|
|
8/26/29
|
|
Suresh Yannamani
|
|
|
—
|
|
|
111,000 (1)
|
|
|
5.98
|
|
|
8/31/28
|
|
|
|
|
—
|
|
|
111,000 (2)
|
|
|
1.30
|
|
|
8/26/29
|
|
|
(1)
|
The stock options are subject to the following vesting schedule: forty percent
of the options will vest and become exercisable on August 31, 2020 and the remainder will vest and become exercisable on August
31, 2022, subject to continued employment with us through each such date.
|
|
|
(2)
|
The stock options are subject to the following vesting schedule: forty percent
of the options will vest and become exercisable on August 26, 2021 and the remainder will vest and become exercisable on August
31, 2023, subject to continued employment with us through each such date.
|
Potential Payments Upon Termination
or Change in Control
The following summaries describe the potential payments and
benefits that we would provide to our named executive officers in connection with a termination of employment and/or a change in
control, assuming the applicable triggering event occurred on December 31, 2019.
Severance Benefits
Although we have not entered into written agreements providing
Messrs. Cogburn, Fairchild or Yannamani severance benefits, upon a termination of Messrs. Cogburn’s, Fairchild’s or
Yannamani’s employment by us without cause, each of Messrs. Cogburn, Fairchild and Yannamani would be eligible for severance
benefits pursuant to our current severance policy equal to continued payment of his base salary for a period of three weeks for
each year of service, up to a maximum of 16 weeks. Our severance policy may be amended or terminated at any time in our sole discretion.
Vesting and Settlement of Outstanding
Equity Awards
Our named executive officers hold unvested stock options granted
pursuant to our 2018 Plan. The 2018 Plan provides that in the event of a significant “corporate event,” as defined
therein, each outstanding award will be treated as the administrator determines. In addition, unless otherwise provided in an award
agreement, with respect to each outstanding equity award under the 2018 Plan that is assumed or substituted in connection with
a change in control, the vesting, payment, purchase or distribution of such award may not be accelerated by reason of the change
in control for any award holder unless the award holder experiences an involuntary termination as a result of the change in control.
For these purposes, an award holder will be deemed to experience an involuntary termination as a result of a change in control
if the award holder experiences a termination other than for cause, or otherwise experiences a termination under circumstances
which entitle the award holder to mandatory severance payment(s) pursuant to applicable law.
DIRECTOR COMPENSATION
The compensation of our non-employee directors
for 2019 was, except as described below, determined in accordance with the non-employee director compensation policy that the Board
approved on December 19, 2017, as described in more detail below. Any non-employee director who was a representative of Apollo
Management Holdings, L.P. or any of its affiliates (but excluding any portfolio companies of funds or accounts managed or
advised thereby) was not eligible to receive any fees or equity awards in 2019.
|
Non-Employee Director Compensation Policy - 2019
|
|
Annual Cash Retainer for Board Membership
|
|
$
|
75,000
|
|
|
Annual Cash Retainer for Board Chairman
|
|
$
|
185,000
|
|
|
Annual Cash Retainer for Audit Committee Member (other than the Chair)
|
|
$
|
20,000
|
|
|
Annual Cash Retainer for Audit Committee Chair
|
|
$
|
30,000
|
|
|
Annual Cash Retainer for Compensation Committee Member (other than the Chair)
|
|
$
|
12,500
|
|
|
Annual Cash Retainer for Compensation Committee Chair
|
|
$
|
20,000
|
|
|
Annual Cash Retainer for Nominating and Corporate Governance Committee (other than Chair)
|
|
$
|
12,500
|
|
|
Annual Cash Retainer for Nominating and Corporate Governance Committee Chair
|
|
$
|
20,000
|
|
|
Initial Equity Award (other than the Chair) (1)
|
|
$
|
150,000
|
|
|
Initial Equity Award Chair (1)
|
|
$
|
200,000
|
|
|
Annual Equity Award (Other than the Chair)(2)
|
|
$
|
110,000
|
|
|
Annual Equity Award Chair(2)
|
|
$
|
140,000
|
|
|
|
(1)
|
Award delivered in the form of restricted stock units and vests ratably over a three-year period immediately prior to the first,
second and third annual meetings subsequent to the date of grant.
|
|
|
|
|
|
|
(2)
|
Award delivered in the form of restricted stock units and vests immediately prior to the first annual meeting subsequent to
the date of grant.
|
In addition to the compensation described
above, during 2019, members of the Audit Committee, Compensation Committee, and Nominating and Corporate Governance Committee were
eligible to receive an additional fee of $2,000 for each meeting following the first four meetings. Members of our Audit Committee
formed a subcommittee to monitor and facilitate the Company’s progress with meeting its SOX compliance initiatives for which
they receive a fee of $2,500 per meeting. In addition, Messrs. Lipman and Rexford also received additional compensation of $75,000
(plus monthly fees of $6,000) for serving on a special committee of the Board of Directors that had been formed to consider the
potential take private transaction that was first announced in May 2019 and abandoned in October 2019. We also reimburse our directors
for reasonable and necessary out-of-pocket expenses incurred in attending board and committee meetings or performing other services
for us in their capacities as directors.
Director Compensation Table
The following table sets forth information
concerning director compensation for services performed during the year ended December 31, 2019.
|
Name
|
|
Fees earned or paid in cash ($)
|
|
|
Stock Awards ($)(1)(2)(3)
|
|
|
Total
($)
|
|
|
Par Chadha
|
|
$
|
197,500
|
|
|
$
|
139,999
|
|
|
$
|
337,499
|
|
|
Martin Akins(4)
|
|
$
|
52,989
|
|
|
$
|
197,012
|
|
|
$
|
250,001
|
|
|
Joshua Black(5)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
J. Coley Clark(4)
|
|
$
|
6,318
|
|
|
|
—
|
|
|
$
|
6,318
|
|
|
Gordon Coburn(5)
|
|
$
|
18,063
|
|
|
|
—
|
|
|
$
|
18,063
|
|
|
Nathaniel Lipman(5)
|
|
$
|
224,563
|
|
|
$
|
109,999
|
|
|
$
|
334,562
|
|
|
Matthew Nord(5)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
John Rexford
|
|
$
|
248,000
|
|
|
$
|
109,999
|
|
|
$
|
357,999
|
|
|
|
(1)
|
The amounts reported in this column represent the aggregate grant date fair value of the restricted stock units granted to
the non-employee directors during the applicable fiscal year, calculated in accordance with FASB ASC Topic 718, disregarding for
this purpose the estimate of forfeitures related to service-based vesting conditions, and do not necessarily correspond to the
actual value that might be realized by the non-employee directors, which depends on the market value of our Common Stock on a date
in the future when the units are settled. Grants made during the fiscal year ended December 31, 2019, were restricted stock
units subject to time-based vesting conditions. For such time-based vesting awards, the grant date fair value was calculated by
multiplying the fair market value by the number of shares of our Common Stock subject to the restricted stock units on the grant
date. For additional information, including a discussion of the assumptions used to calculate these values, please see note 16
Stock-Based Compensation of the Notes to the Consolidated Financial Statements in this Annual Report.
|
|
|
(2)
|
Each restricted stock unit represents the right to receive, following vesting, one share of our Common Stock.
|
|
|
(3)
|
The non-employee members of our Board of Directors held the following aggregate unvested restricted stock units as of December 31,
2019. (A)(B)
|
|
Name
|
|
Aggregate Number of Restricted Stock Units
Outstanding as of December 31, 2019
|
|
|
Par Chadha
|
|
|
71,898
|
|
|
Martin Akins
|
|
|
156,359
|
|
|
John Rexford
|
|
|
56,050
|
|
|
|
(A)
|
As of December 31, 2019, other than with
respect to Mr. Akins, all remaining unvested restricted stock units held by our non-employee directors were scheduled to vest in
full immediately prior to our 2020 annual meeting, subject to the director’s continued service on our Board through such
date. Mr. Akins received (i) a sign-on grant of 119,047 restricted stock units that are scheduled to vest in equal installments
immediately prior to each of our annual meetings in 2020, 2021 and 2022, and (ii) a pro-rated annual grant of 37,312 restricted
stock units that are scheduled to vest in full immediately prior to our 2020 annual meeting.
|
|
|
(B)
|
All unvested restricted stock units granted
to Messrs. Coburn and Lipman were forfeited upon their resignation from the Board.
|
|
|
(4)
|
Messrs. Akins and Clark became members of our Board effective as of July 29, 2019 and December 2, 2019 respectively, and
each director’s reported compensation reflects his partial year of service.
|
|
|
(5)
|
Mr. Coburn resigned from the Board, effective February 21, 2019, Mr. Lipman resigned the Board, effective October
25, 2019, and Messrs. Nord and Black each resigned from the Board on October 28, 2019. Messrs. Nord and Black were the Apollo
Management Holdings, L.P. representatives and therefore did not earn or receive any fees in respect of service on our Board
during the 2019 calendar year.
|
Messrs. Cogburn and Reynolds each served as members
of the Board of the Company during 2019, however, as executive officers at such time they did not receive additional compensation
for such service in 2019. Messrs. Transier and Beilinson have been members of the Board since April 2020 and accordingly did not
receive any compensation for 2019.
Item 12. Security Ownership of Certain Beneficial Owners
and Management and Related Shareholder Matters
Principal Shareholders
The
following table shows, based upon filings made with the Company, certain information as of June 5, 2020 concerning persons who
may be deemed beneficial owners of 5% or more of the outstanding shares of Common Stock because they possessed or shared voting
or investment power with respect to the shares of Common Stock.
|
Name and Address
|
|
Amount and
Nature
of Beneficial
Ownership
|
|
|
Percent of
Class(1)
|
|
Various entities affiliated with Delos Investment Fund, L.P. (2)
120 Fifth Ave, Third Floor,
New York, NY 10011
|
|
|
15,485,248
|
|
|
|
10.5
|
%
|
Various entities affiliated with HGM(3)
8550 West Desert Inn Road,
Suite 102-452, Las Vegas, NV 89117
|
|
|
74,393,234
|
|
|
|
49.3
|
%
|
Nantahala Capital Management, LLC (4)
19 Old Kings Highway S, Suite 200
Darien, Connecticut 06820
|
|
|
27,777,887
|
|
|
|
18.8
|
%
|
|
Greenlight (5)
140 East 45th Street,
24th Floor, New York, New York 10017
|
|
|
8,022,928
|
|
|
|
5.4
|
%
|
(1) Percent of class refers to percentage of class beneficially
owned as the term beneficial ownership is defined in Rule 13d-3 under the Securities Exchange Act of 1934 and is based upon
the 147,511,430 shares of Common Stock outstanding.
(2) Information based on Schedule 13G
(the “13G”), filed with the SEC on March 2, 2020, relating to securities held of record by Delos Investment Fund,
LP, a Delaware limited partnership (“Delos”). Delos Capital Management, LP, a Delaware limited partnership (the "Advisor"),
serves as the investment manager of Delos. Matthew Constantino is the managing member of the general partner of the Advisor.
(3) Information based on Amendment
Number 11 to Schedule 13D, filed with the SEC on March 26, 2020, by Mr. Par Chadha, HandsOn Global Management,
LLC, a Delaware limited liability company, Ex-Sigma 2 LLC, a Delaware limited liability company, Ex-Sigma LLC, a Delaware limited
liability company, HOVS LLC, a Delaware limited liability company, HandsOn Fund 4 I, LLC, a Nevada limited liability company,
HOV Capital III, LLC, a Nevada limited liability company, HOV Services Ltd., an Indian limited company, Adesi 234 LLC, a Nevada
limited liability company, HOF 2 LLC, a Nevada limited liability company, HandsOn 3, LLC, a Nevada limited liability company,
SoNino LLC, The Beigam Trust, The Rifles Trust, SunRaj LLC, Pidgin Associates LLC, Andrej Jonovic, Shadow Pond LLC, Ronald Cogburn,
Kanwar Chadha, Surinder Rametra, and Suresh Yannamani and the Voting Agreement parties (collectively, the “HGM Reporting
Persons”) and includes 509,964 shares of Common Stock held directly by HGM. According to the Schedule 13D, Mr. Chadha
may be deemed to be the beneficial owner of, and he has shared power to vote, the aggregate 74,393,234 shares of Common Stock
held by the HGM Reporting Persons. Percent of class, in the case of HGM refers to 147,511,430 shares of Common Stock outstanding
3,216,051 shares of Common Stock issuable upon conversion of the Series A Preferred Stock, as of June 5, 2020, and 71,898 shares
of Common Stock issuable upon settlement of RSUs.
(4) Information based on Schedule 13G/A,
filed with the SEC on April 9, 2020 by Nantahala Capital Management, LLC, a Massachusetts limited liability company, Wilmot B.
Harkey and Daniel Mack.
(5) Information based on Schedule 13G/A,
filed with the SEC on February 14, 2020, by Greenlight Capital, Inc., a Delaware corporation (“Greenlight Inc.”),
DME Advisors, LP, a Delaware limited partnership (“DME Advisors”), DME Capital Management, LP, a Delaware
limited partnership (“DME CM”), DME Advisors GP, LLC, a Delaware limited liability company (“DME GP”
and together with Greenlight Inc., DME Advisors and DME CM, “Greenlight”), and Mr. David Einhorn, the principal
of Greenlight (collectively with Greenlight, the “Greenlight Reporting Persons”). Pursuant to Rule 13d-4, each
of the Greenlight Reporting Persons disclaims all such beneficial ownership except to the extent of its pecuniary interest in any
shares of Common Stock, if applicable.
Common Stock Ownership by Directors and Executive Officers
The following table presents the number of shares of Common
Stock beneficially owned by the directors, the named executive officers and all directors and executive officers as a group as
of June 5, 2020. Individuals have sole voting and dispositive power over the stock unless otherwise indicated in the footnotes.
|
Name of Individual
|
|
Amount
and
Nature
of
Beneficial
Ownership
|
|
|
Percent
of
Class(1)
|
|
|
Par Chadha(2)(8)
|
|
|
74,393,234
|
|
|
|
49.3
|
%
|
|
Ronald Cogburn(3)(7)(8)
|
|
|
372,124
|
|
|
|
*
|
|
|
James G. Reynolds(4)(7)(8)
|
|
|
3,387,782
|
|
|
|
*
|
|
|
Martin Akins (5)
|
|
|
76,994
|
|
|
|
*
|
|
|
J. Coley Clark
|
|
|
—
|
|
|
|
*
|
|
|
John H. Rexford (6)
|
|
|
143,648
|
|
|
|
*
|
|
|
William Transier
|
|
|
—
|
|
|
|
*
|
|
|
Marc A. Beilinson
|
|
|
—
|
|
|
|
*
|
|
|
Suresh Yannamani (7)(8)
|
|
|
533,892
|
|
|
|
*
|
|
|
Mark Fairchild (7) (8)
|
|
|
48,323
|
|
|
|
*
|
|
|
All directors and executive
officers as a group (13 persons)
|
|
|
74,613,876
|
|
|
|
49.4
|
%
|
* Represents holdings of less
than one percent.
(1) Percent of class refers to percentage of class beneficially
owned as the term beneficial ownership is defined in Rule 13d-3 under the Securities Exchange Act of 1934 and is based upon
the 147,511,430 shares of Common Stock outstanding.
(2) The business address of Mr. Chadha
is 8550 West Desert Inn Road, Suite 102-452, Las Vegas, NV 89117. Mr. Chadha is a member of HGM or its affiliates
and may be deemed to beneficially own the shares of Common Stock and Series A Perpetual Convertible Preferred Stock beneficially
owned by HGM or its affiliates under Rule 13d-3. Mr. Chadha disclaims beneficial ownership of any such shares beneficially
owned by HGM, except to the extent of his pecuniary interest therein. Percent of class, in the case of Mr. Chadha refers to 147,511,430
shares of Common Stock outstanding, 3,216,051 shares of Common Stock issuable upon conversion of the Series A Preferred Stock,
as of June 5, 2020, and 71,898 shares of Common Stock issuable upon settlement of RSUs.
(3) Mr. Cogburn is affiliated
with HGM or its affiliates. Mr. Cogburn disclaims beneficial ownership of shares of Common Stock that are owned by HGM or
its affiliates.
(4) Mr. Reynolds is affiliated
with HGM or its affiliates. Mr. Reynolds disclaims beneficial ownership of shares of Common Stock that are owned by HGM or
its affiliates.
(5) Includes 76,994 RSUs that are scheduled
to vest immediately prior to our annual meeting.
(6) Includes 56,050 RSUs that are scheduled to vest immediately
prior to our annual meeting.
(7) Includes Series A Perpetual Convertible Preferred Stock
held by the applicable holder on an as-converted to Common Stock basis.
(8) The individual is party to a voting agreement with HGM,
among other persons. Mr. Chadha is a member of HGM and may be deemed to be the beneficial owner of, and has shared power to vote
such shares.
Item 13. Certain Relationships and Related Transactions and
Director Independence
Related-Party Transactions
We have adopted
a written policy requiring that any related person transaction that would require disclosure under Item 404(a) of Regulation S-K
under the Exchange Act be reviewed and approved by our audit committee or, if the audit committee is not able to review the transaction
for any reason, the chairman of the audit committee. Compensation matters regarding our executive officers or directors are reviewed
and approved by our compensation committee. All relevant factors with respect to a proposed related person transaction will be
considered, and such a transaction will only be approved if it is in our and our stockholders’ best interests. Related persons
include our major stockholders and directors and officers, as well as immediate family members of directors and officers.
During
2019, the Company engaged in the following transactions with related persons that are required to be reported under the SEC’s
rules:
The information set forth in Note 18 –
Related-Party Transactions of Notes to Consolidated Financial Statements included in the Company’s Form 10-K for year ended
December 31, 2019 amended by this Amendment No. 1 is incorporated by reference.
We have also maintained the following related
party employment relationships: Matt Reynolds, the brother of our former chief financial officer and current director, is employed
as our Vice President—Finance, and receives a base salary of $162,567 and may be eligible for additional incentive compensation
for 2020; and Andrej Jonovic, the son-in-law of the Executive Chairman is employed as our Executive Vice President, Business Strategy
and Corporate Affairs and receives a base salary of $300,000 and may be eligible for additional incentive compensation for 2020.
In addition the Company had ongoing
obligations under the following agreements:
Registration Rights Agreement
The
Company and certain stockholders, including certain entities affiliated with each of HGM and Apollo, have entered into an Amended
and Restated Registration Rights Agreement, which was subsequently amended on April 10, 2018 (the “Registration Rights Agreement”).
Under the Registration Rights Agreement, certain stockholders, including affiliates of HGM, and their permitted transferees are
entitled to certain registration rights described in the Registration Rights Agreement. Among other things, pursuant to the Registration
Rights Agreement, affiliates of each of HGM and Apollo are each entitled to participate in five demand registrations, and also
have certain “piggyback” registration rights with respect to registration statements filed subsequent to the Novitex
Business Combination. We will bear the expenses incurred in connection with the filing of any such registration statements, other
than underwriting discounts and selling commissions.
Messrs. Chadha,
Cogburn, and Reynolds are each affiliated with HGM. Messrs. Cogburn and Reynolds received compensation from Exela as executive
officers of Exela.
Director Nomination Agreements
At
the closing of the Novitex Business Combination, the Company entered into a Director Nomination Agreement (the “Director
Nomination Agreement”) with each of Novitex Holdings, an affiliate of Apollo, and certain affiliates of HOVS LLC and
HandsOn Fund 4 I, LLC, affiliates of HGM (each a “Nominating Stockholder”), which will remain in effect for so
long as the applicable Nominating Stockholder (or Nominating Stockholder’s affiliate) continues to beneficially own at least
5% of the then outstanding shares of our Common Stock (without giving effect to the exercise of any outstanding warrants to purchase
our Common Stock). The Director Nomination Agreements require that the individuals nominated for election as directors by our Board
of Directors shall include a number of individuals selected by each of the Nominating Stockholders such that, upon the election
of each such individual, and each other individual nominated by or at the direction of our Board of Directors or a duly-authorized
committee of the Board, as a director of our Company, the individuals selected by each Nominating Stockholder (or Nominating Stockholder’s
affiliate) shall be: (i) solely with respect to the Director Nomination Agreement with certain affiliates of HOVS LLC
and HandsOn Fund 4 I, LLC, for so long as the applicable Nominating Stockholder beneficially owns at least 35% of the then
outstanding shares of our Common Stock (without giving effect to the exercise of any outstanding warrants to purchase our Common
Stock), three directors; (ii) for so long as the applicable Nominating Stockholder beneficially owns at least 15%, but less
than 35%, of the then outstanding shares of Common Stock (without giving effect to the exercise of any outstanding warrants to
purchase our Common Stock), two directors; and (iii) for so long as the applicable Nominating Stockholder (or Nominating Stockholder’s
affiliate) beneficially owns at least 5%, but less than 15%, of the then outstanding shares of our Common Stock (without giving
effect to the exercise of any outstanding warrants to purchase our Common Stock), one director. In the case of a vacancy on our
Board of Directors created by the removal or resignation of an individual selected for nomination by a Nominating Stockholder (or
Nominating Stockholder’s affiliate), the Director Nomination Agreements require us to appoint another individual selected
by the applicable Nominating Stockholder. The Director Nomination Agreements also provide for observation rights for each Nominating
Stockholder (or Nominating Stockholder’s Affiliate) to the extent that it has a right of nomination that it does not utilize.
In
addition, the Director Nomination Agreements provide that for so long as a Nominating Stockholder continues to beneficially own
at least 15% of the then outstanding shares of our Common Stock (without giving effect to the exercise of any outstanding warrants
to purchase our Common Stock), we cannot, without the consent of such Nominating Stockholder, engage in certain related-party transactions,
adopt an equity incentive plan or amend the same to increase the number of securities that may be granted thereunder, issue certain
equity securities, including with a fair market value of more than $100 million, amend our certificate of incorporation or
bylaws in a manner that adversely affects such Nominating Stockholder’s rights under the applicable Director Nomination Agreement
or has a disproportionate impact on the interests of such Nominating Stockholder, enter into certain new lines of business, or
increase or decrease the size of the Board of Directors or change the classes on which the members of the Board of Directors serve.
Consent, Waiver and Amendment
Pursuant to the Consent, Waiver and
Amendment the Company had certain obligations to reimburse Ex-Sigma and Ex-Sigma 2 in connection with the Margin Loan, all as
disclosed in the Consolidated Financial Statements included in the Original Report.
Director Independence
The Company’s Common Stock is listed
on Nasdaq, and the Company is required to comply with the Nasdaq listing requirements regarding independent directors. Under Nasdaq’s
Marketplace Rules, the definition of an “independent director” is a person other than an executive officer or employee
of the company or any other individual having a relationship which, in the opinion of the issuer’s board of directors, would
interfere with the exercise of independent judgment in carrying out the responsibilities of a director. Our Board of Directors
has reviewed such information as the Board has deemed appropriate for purposes of determining whether any of the directors has
a relationship which, in the opinion of the Board, would interfere with the exercise of independent judgment in carrying out the
responsibilities of a director, including the beneficial ownership by our directors of Common Stock and transactions between the
Company, on the one hand, and our directors and their affiliates, on the other hand. Based on such review, the Board of Directors
has determined that we have five “independent directors” as defined in the Nasdaq listing standards and applicable
SEC rules, Messrs. Akins, Beilinson, Clark, Rexford and Transier; independent directors, therefore, constitute a majority
of our Board. Non-management directors meet periodically in executive session without members of the Company’s management
at the conclusion of regularly scheduled Board meetings. In addition, Messrs. Akins, Beilinson, Clark, Rexford and Transier
qualify as independent directors for the purpose of serving on the audit committee of the Company under SEC rules.
Item 14. Principal Accountant Fees and Services
KPMG
has been our principal accountant for the last three fiscal
years.
Pursuant to its charter, the Audit Committee is directly responsible
for the appointment, retention, compensation and oversight of the Company’s independent registered public accounting firm.
In addition to assuring the regular rotation of the lead audit partner as required by law, the Audit Committee is involved in the
evaluation and selection of the lead audit partner and considers whether there should be regular rotation of the independent registered
public accounting firm.
The Audit Committee is also required to review and pre-approve
all of the audit and non-audit services to be performed by the Company’s independent registered public accounting firm, including
the firm’s engagement letter for the annual audit of the Company, the proposed fees in connection with such audit services,
and any additional services that management chooses to hire the independent auditors to perform. Additionally, the Audit Committee
can establish pre-approval policies and procedures with respect to the engagement of the Company’s independent accountant’s
for non-audit services. In accordance with the Audit Committee Charter, all of the foregoing audit and non-audit fees paid to,
and the related service provided by, KPMG were pre-approved by the Audit Committee.
Services
KPMG and its affiliates provided services consisting of the
audit of the annual consolidated financial statements and internal controls over financial reporting of the Company, review of
the quarterly financial statements of the Company, accounting consultations and consents and other services related to SEC filings
by the Company and its subsidiaries and other pertinent matters and other permitted services to the Company.
Audit Fees
The aggregate fees billed or expected to be billed by KPMG for
professional services rendered for the audit of the Company’s annual consolidated financial statements and internal controls
over financial reporting for the fiscal years ended 2018 and 2019, for the reviews of the condensed consolidated financial statements
included in the Company’s Quarterly Reports on Form 10-Q for the 2018 and 2019 fiscal years and for accounting research
and consultation related to the audits and reviews totaled approximately $6.8 million for 2018 and $7.7 million for 2019.
These fees were pre-approved by the Audit Committee.
Audit -Related Fees
The aggregate fees billed by KPMG for audit-related services
for the fiscal years ended 2018 and 2019 were $0.2 million and $0.5 million, respectively. These fees related to research
and consultation on various filings with the SEC and were pre-approved by the Audit Committee.
Tax Fees
The aggregate fees billed by KPMG for tax services were less
than $0.1 million for each of the fiscal years ended 2018 and 2019. These fees related to local tax compliance and consulting
were pre-approved by the Audit Committee.
All Other Fees
There were no fees billed by KPMG for services rendered to the
Company other than the services described above under “Audit Fees,” “Audit-Related Fees” and “Tax
Fees” for the fiscal years ended 2018 and 2019.
In its approval of these non-audit services, the Audit Committee
has considered whether the provision of non-audit services is compatible with maintaining KPMG’s independence.
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